Chapman, J.
It appears that the defendant is and for a long time and perhaps always has been a person of unsound mind On the death of his father in 1844, from whom he received a large estate, he was placed under guardianship as a person non [63]*63compos mentis. His guardian was dismissed in December 1862, and a new guardian was appointed in June 1863. About the time when the first guardian was dismissed, the defendant applied to the plaintiff to take him into his family. The plaintiff did so, and provided for him until the second guardian took charge of him. This action is brought to recover for the board and services thus furnished and the expenses of a journey.
The first question that arises in the case was originally made at the hearing before the the auditor. The plaintiff offered himself as a witness to prove his account. The defendant’s counsel objected that he was not a competent witness under the provisions of Gen. Sts. c. 131, § 14, because the defendant was insane. The auditor overruled the objection, because upon due hearing he found as a fact that the mental condition of the defendant was not such as would incapacitate him from being a witness. The defendant’s counsel contends that this ruling was erroneous; that the appointment of a guardian by the probate court, and the leave granted by the superior court to the guardian to appear and defend this action, were conclusive evidence of the insanity of the defendant, and that his mere insanity excludes the plaintiff from testifying.
There can be no doubt that where one party is insane to such a degree as to exclude him from being a witness, the statute does not intend to admit the other party. But it is not every degree of insanity that has this effect.
This question was thoroughly considered in Regina v. Hill, 15 Jur. 471, the same case, being also reported in several other books. On the trial of an indictment for manslaughter, Coleridge, J. admitted a witness to testify who was brought into court from a lunatic hospital, and who labored under the delusion that he was possessed of twenty thousand spirits. In the court of criminal appeal this ruling was affirmed by Lord Campbell, C. J., Platt, Talfourd and Coleridge, JJ. The rule as they state it is, that it is for the judge to satisfy himself whether the witness understands the nature of the oath and is capable of testifying. He then decides upon the competency of the witness, and if he admits him it is left to the jury to estimate the value of his testimony.
[64]*64This is the only rational and just rule that can be adopted. Insanity exists in various degrees. Modern investigations have shown that it exists much more extensively than was formerly supposed, and that persons who are affected to such an extent that it is expedient to place them in insane hospitals or under guardianship often possess sufficient knowledge of the nature of an oath and of events that took place in their presence to make them useful and trustworthy as witnesses. A rigid rule that would exclude the testimony of all such persons as untrustworthy witnesses would not be conformable to facts, and therefore would not be founded in good sense. Nor would such a rule promote justice. It would leave insane persons needlessly unprotected in hospitals and elsewhere, and would deprive the public and individuals of their testimony in cases where it might be important and valuable. In commenting upon such a rule, Talfourd, J. remarked that Luther supposed he had conferences with the devil, and Dr. Johnson entertained delusions respecting his mother. Lord Campbell said that Socrates would not have been a witness under it, for he believed that a spirit always haunted him. In the case of Commonwealth v. Reynolds, which was an indictment for murder tried in Bristol in 1863, this court admitted an insane person to testify, adopting the principle laid down in Regina v. Hill. In Leonard v. Leonard, 14 Pick. 280, it is said that an insane person under guardianship may make a will, if of sufficient capacity. The reason for allowing him to testify, if he understands the nature of an oath and the facts which he relates, is at least as strong as for allowing him to make a will. The auditor therefore decided correctly the question of law in respect to the competency of an insane person to testify.
But having decided this, a question of fact was presented to him, namely, whether the defendant had in fact sufficient capacity to testify. He decided this question in the affirmative, upon the evidence before him.
Assuming then that the defendant was competent to testify he ruled that the plaintiff could testify under the statute. We think he also ruled this legal point correctly. The object of the [65]*65statute is to make; each party competent when the other is so, and not otherwise. Thus, if one party is dead, the other is excluded. If one is insane, the other is excluded; but the fair interpretation of the word “ insane ” is to be found by applying it to the subject matter. If he is so insane that he cannot be permitted to testify, he is within the reasonable interpretation of the statute, but not otherwise.
The auditor having made his report, it is made by statute prima facie evidence, and nothing more. The finding as to this fact of the capacity of the defendant to testify is not conclusive, but prima facie only.
In respect to the other facts found by the auditor, the report was to be submitted to the jury, and the evidence to contradict the report must be also addressed to them. But it was not so as to this fact; for the capacity of a witness to testify is not a fact that is ever submitted to the jury, but is always decided by the court.
When a question as to the admissibility of evidence is presented to the judge, he is often bound to hear and decide a collateral issue of fact, as whether a communication is confidential, or a witness is of sufficient capacity. Cleave v. Jones, 7 Exch. 421. It would be impracticable to submit these collateral issues to the jury. The auditor’s finding on the point of capacity was, to be affirmed or disaffirmed in this case by the judge, upon evidence to be presented to him. If it was affirmed, then the report was to be read to the jury; but if it was disaffirmed, it would not follow that the report was to be rejected, and the cause tried as if no report had been made; but the report should be recommitted for amendment, and for further hearing it necessary.
If either party desires to have a report recommitted on account of an erroneous finding of the auditor, he ought to make his motion seasonably, so that the recommitment may be made, and the report corrected before the trial. Otherwise the trial must be broken off, or the report excluded, and the cause tided without it. But the object of the statute is to aid the court and jury by obtaining the report of an auditor, and it is not in [66]*66the power of either or both the parties to exclude it. The court may require it to be read. Clark v. Fletcher, 1 Allen, 53. If then either party desires to have the report corrected, on account of any error of fact or of law, he should move the recommitment, and have his objections settled before the cause goes to trial. To allow it to be done after the trial has commenced would create unreasonable inconvenience and expense, unless for good reasons which are satisfactory to the presiding judge. If no such reasons are presented, the objection should be considered as waived.
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Chapman, J.
It appears that the defendant is and for a long time and perhaps always has been a person of unsound mind On the death of his father in 1844, from whom he received a large estate, he was placed under guardianship as a person non [63]*63compos mentis. His guardian was dismissed in December 1862, and a new guardian was appointed in June 1863. About the time when the first guardian was dismissed, the defendant applied to the plaintiff to take him into his family. The plaintiff did so, and provided for him until the second guardian took charge of him. This action is brought to recover for the board and services thus furnished and the expenses of a journey.
The first question that arises in the case was originally made at the hearing before the the auditor. The plaintiff offered himself as a witness to prove his account. The defendant’s counsel objected that he was not a competent witness under the provisions of Gen. Sts. c. 131, § 14, because the defendant was insane. The auditor overruled the objection, because upon due hearing he found as a fact that the mental condition of the defendant was not such as would incapacitate him from being a witness. The defendant’s counsel contends that this ruling was erroneous; that the appointment of a guardian by the probate court, and the leave granted by the superior court to the guardian to appear and defend this action, were conclusive evidence of the insanity of the defendant, and that his mere insanity excludes the plaintiff from testifying.
There can be no doubt that where one party is insane to such a degree as to exclude him from being a witness, the statute does not intend to admit the other party. But it is not every degree of insanity that has this effect.
This question was thoroughly considered in Regina v. Hill, 15 Jur. 471, the same case, being also reported in several other books. On the trial of an indictment for manslaughter, Coleridge, J. admitted a witness to testify who was brought into court from a lunatic hospital, and who labored under the delusion that he was possessed of twenty thousand spirits. In the court of criminal appeal this ruling was affirmed by Lord Campbell, C. J., Platt, Talfourd and Coleridge, JJ. The rule as they state it is, that it is for the judge to satisfy himself whether the witness understands the nature of the oath and is capable of testifying. He then decides upon the competency of the witness, and if he admits him it is left to the jury to estimate the value of his testimony.
[64]*64This is the only rational and just rule that can be adopted. Insanity exists in various degrees. Modern investigations have shown that it exists much more extensively than was formerly supposed, and that persons who are affected to such an extent that it is expedient to place them in insane hospitals or under guardianship often possess sufficient knowledge of the nature of an oath and of events that took place in their presence to make them useful and trustworthy as witnesses. A rigid rule that would exclude the testimony of all such persons as untrustworthy witnesses would not be conformable to facts, and therefore would not be founded in good sense. Nor would such a rule promote justice. It would leave insane persons needlessly unprotected in hospitals and elsewhere, and would deprive the public and individuals of their testimony in cases where it might be important and valuable. In commenting upon such a rule, Talfourd, J. remarked that Luther supposed he had conferences with the devil, and Dr. Johnson entertained delusions respecting his mother. Lord Campbell said that Socrates would not have been a witness under it, for he believed that a spirit always haunted him. In the case of Commonwealth v. Reynolds, which was an indictment for murder tried in Bristol in 1863, this court admitted an insane person to testify, adopting the principle laid down in Regina v. Hill. In Leonard v. Leonard, 14 Pick. 280, it is said that an insane person under guardianship may make a will, if of sufficient capacity. The reason for allowing him to testify, if he understands the nature of an oath and the facts which he relates, is at least as strong as for allowing him to make a will. The auditor therefore decided correctly the question of law in respect to the competency of an insane person to testify.
But having decided this, a question of fact was presented to him, namely, whether the defendant had in fact sufficient capacity to testify. He decided this question in the affirmative, upon the evidence before him.
Assuming then that the defendant was competent to testify he ruled that the plaintiff could testify under the statute. We think he also ruled this legal point correctly. The object of the [65]*65statute is to make; each party competent when the other is so, and not otherwise. Thus, if one party is dead, the other is excluded. If one is insane, the other is excluded; but the fair interpretation of the word “ insane ” is to be found by applying it to the subject matter. If he is so insane that he cannot be permitted to testify, he is within the reasonable interpretation of the statute, but not otherwise.
The auditor having made his report, it is made by statute prima facie evidence, and nothing more. The finding as to this fact of the capacity of the defendant to testify is not conclusive, but prima facie only.
In respect to the other facts found by the auditor, the report was to be submitted to the jury, and the evidence to contradict the report must be also addressed to them. But it was not so as to this fact; for the capacity of a witness to testify is not a fact that is ever submitted to the jury, but is always decided by the court.
When a question as to the admissibility of evidence is presented to the judge, he is often bound to hear and decide a collateral issue of fact, as whether a communication is confidential, or a witness is of sufficient capacity. Cleave v. Jones, 7 Exch. 421. It would be impracticable to submit these collateral issues to the jury. The auditor’s finding on the point of capacity was, to be affirmed or disaffirmed in this case by the judge, upon evidence to be presented to him. If it was affirmed, then the report was to be read to the jury; but if it was disaffirmed, it would not follow that the report was to be rejected, and the cause tried as if no report had been made; but the report should be recommitted for amendment, and for further hearing it necessary.
If either party desires to have a report recommitted on account of an erroneous finding of the auditor, he ought to make his motion seasonably, so that the recommitment may be made, and the report corrected before the trial. Otherwise the trial must be broken off, or the report excluded, and the cause tided without it. But the object of the statute is to aid the court and jury by obtaining the report of an auditor, and it is not in [66]*66the power of either or both the parties to exclude it. The court may require it to be read. Clark v. Fletcher, 1 Allen, 53. If then either party desires to have the report corrected, on account of any error of fact or of law, he should move the recommitment, and have his objections settled before the cause goes to trial. To allow it to be done after the trial has commenced would create unreasonable inconvenience and expense, unless for good reasons which are satisfactory to the presiding judge. If no such reasons are presented, the objection should be considered as waived.
In the present case, the defendant’s counsel objected to the admission of the report, and offered to prove by medical experts that the defendant was insane at the time of the hearing before the auditor, and also at the time of the trial. There was no motion to recommit the report, but merely to reject it. If the motion had been granted, the cause would have been tried to the jury, respecting an account containing a great number of items, and without the aid of an auditor’s report. This would thwart the whole purpose of the statute. We think the court properly denied the motion to reject the report, and properly refused to hear evidence at that stage of the proceedings on the question whether the auditor had properly decided that the defendant was competent to testify.
The judge properly refused to instruct the jury that the journey taken by the defendant out of the state was not reasonably necessary for him, and that the plaintiff could not properly take him on a journey for pleasure out of the state without the sanction of his former guardian, or of the courts, or of his relations. His former guardian had nothing further to do with him. The interest of his relations was to keep his expenses as small as possible, in order that his property might be preserved for them or their children; and no court could determine beforehand what was proper to be done. The plaintiff incurred the risk of being able to satisfy a jury that the charges were reasonable and proper. The fact that the former guardian had provided rooms and necessaries for the ward was not material. The defendant’s property amounted to about $200,000. If he had been compos [67]*67mentis he would have had a right to use it to supply himself with luxuries, and to gratify his tastes and fancies, and even his whims. The fact that he was non compos made it proper to place him under guardianship, so that his estate should not be wasted, and he should not be left to suffer. But the object was to preserve it for his own use, and his own enjoyment of it should be considered as paramount to everything else. If without harm to himself he could enjoy luxuries and gratify his tastes and fancies, he ought to be indulged in such enjoyments to a reasonable extent. If he enjoyed journeys, it was proper that he should be indulged in them. If he preferred the society of some persons over that of others, that preference should be reasonably regarded and indulged. The interest which his heirs may have in the accumulation of his estate is to be wholly disregarded, when it comes in competition with his own happiness or innocent pleasure. It appears that he is capable of enjoying, to some extent, many pleasures and luxuries, and that he has preferences as to the place of his residence and his associates. Humanity and his right to his own property require that he should not be restrained or thwarted in his preferences and enjoyments, more than is necessary for his own welfare. In re Persse, 3 Molloy, 94, the Lord Chancellor said: “ The maintenance of a lunatic is not limited as an infant’s is, within the bounds of income. It is not limited except by the fullest comforts of the lunatic. Fancied enjoyments and even harmless caprice are to be indulged up to the limits of income, and for solid enjoyments and substantial comforts the court wall, if necessary, go beyond the limits of income.” In this commonwealth it is not thus limited in respect to an infant, and there is, therefore, less reason for limiting it in respect to a person of full age. The instructions of the court in regard to the allowance of the plaintiff’s claims were correct in respect to these matters.
The opinion of Sarah E. Skinner as to what it was worth to board and take care of him was properly admitted. Opinions on questions of value, by persons who are acquainted with the subject as to which they testify, are always received. Her testimony shows that she had ample opportunity to form an opinion
Exceptions overruled.