This suit is prosecuted for the benefit of Edward Madigan, to whom the original plaintiff assigned, on 6th May, *4581867, the demand in suit. The defense rests upon a release executed on 7th Sept., 1867, by plaintiff’s intestate.
The validity of the release was contested on the ground, 1st, that the defendant had notice when he received it, that the demand released had previously been assigned; and, 2d, that the releasor was not of sound mind when it was given.
1. The presiding judge was requested to instruct the jury “ that it was not necessary that the notice of the assignment should be given by the assignee; if the defendant had notice from the assignor, or from any third person, of the existence of such assignment, it would be sufficient to put the defendant upon inquiry to ascertain the particulars of the fact, and if the defendant neglected to do so, he had no right to deal with the assignor for a release of 'the claim, and the release would be invalid.” This instruction was not given any further than is contained in the following words :
“ It is the duty of the assignee, taking an assignment of a debt or claim, to notify the debtor, and if he does this, the right of the debtor to deal with'the assignor is withdrawn, and he has no longer any authority to pay the assignor or take any discharge from him. The notice, to have this effect, need not come from {he assignee, if the debtor had notice from any other reliable source, he is equally bound by it.”
■ The request contains two propositions, — 1st, that it was not necessary that notice should be given by the assignee; 2d, that if notice was given by the assignor or any third person, it would be sufficient to put the defendant upon inquiry to ascertain the fact, and if he neglected, he dealt with the assignor at his peril.
But the instruction given was more favorable to the assignee than the one requested. It negatived the necessity of notice by him. It affirmed the sufficiency of notice from any reliable source, as withdrawing the right of the debtor any longer to deal with the assignor or take a release from him. It was not that the notice was sufficient to induce inquiry on the part of the debtor, as was assumed by the request, but that it was sufficient in and of itself to render a release after such notice of any avail.
*459It is true, the notice referred to must come from a reliable source. But if it came from an unreliable, it would not be sufficient to induce inquiry. If the information comes from a source unreliable, it will not suffice to induce action; for it will hardly be pretended that the sufficient credit should be given to what is unreliable, to require the same course of conduct which would be the legitimate result of information upon which reliance could be placed.
It is obvious that the instruction, whether right or not, is more favorable to the assignee than the one requested.
2. The presiding judge was also requested to instruct the jury, “ that when a party, executing a contact, has been shown to be of unsound mind before its execution, the burden of proof is on the party claiming under the contract to show soundness of mind at the time of its execution.”
The instruction given was as follows: “ that it was only in a case of insanity, which changed the burden of proof, and that temporary hallucination of mind would not so change the burden.”
The request given assumes and affirms the correctness of the request as made. The only inquiry is whether the additional remark was erroneous and prejudicial to the plaintiff in interest.
The qualification as to hallucination, whether correct or not,' depends on the meaning of the term. Now hallucination is not per se insanity. It does not necessarily avoid a contract. It may exist as to matters in no way affecting the capacity to contract. The medical definition of hallucination adopted by Worcester is, a “morbid error in one or more of the senses ; a perception of objects which do not, in fact, make any impression upon the external senses; delirium, delusion.” The state of mind indicated by hallucination is strikingly illustrated by the remarkable story of Nicolai, the Berlin bookseller, who, for a length of time, was visited at his bedside by individual forms that were visible to his sight and addressed him. During all this period he was conscious that it was a delusion. Still he transacted his ordinary business with his usual ability, and his contracts were as valid as if the delusion had not existed.
If the delusion or the delirium is that caused by disease, it is *460obviously temporary in its character. It will continue only during the continuance of the fever in which it originated. If a fever is shown to exist at a given'date, the law does not presume its continuance as in the case of fixed insanity. So there is no presumption of law as to the continuance of the temporary hallucination or delusion resulting from disease. The party claiming to avoid a contract, by reason of temporary hallucination or delusion, must show its existence at the time of the contract sought to be avoided for such cause, and that it was of a character affecting his capacity to make the contract sought to be avoided.
It is undoubtedly true, that when an hallucination has become permanent, it is to be deemed insanity, general or particular according to the nature of the delusion under which the patient labors. But the instruction excluded, from the consideration of the jury, a case of permanent and fixed hallucination, and referred only to an hallucination temporary in its nature, and which would terminate, or might be expected to terminate, with the termination of its exciting cause.
3. The only objections specifically taken to the testimony of Burns, Fitzherbert, and Hayden was that of irrelevancy. But that objection is not sustainable. The counsel now rely on particular sentences in their testimony, to which specific objections do not appear to have been taken at the time. The general objection fails, because the testimony was relevant. The particular objection was not taken when, had it been, the testimony to which it applies might have been excluded. The grounds of objection should be stated at the time. If well taken, they will avail the party. After the trial, it is too late to take the objection.
4. In the deposition of Robert Brown, the remark, “ there was ■no sense or reason in anything he said that day,” was stricken out of the deposition. But the preceding part of the sentence, “ he kept talking all Sunday, talking foolish talk all the time,” was read to the jury as well as the next sentence, “ the reason why I cannot recollect any thing Francis said that Sunday is because there was no sense or reason in what he said.”
*461In another part of the deposition this sentence was stricken out: “ the general way that lie was in from the time he came to my place until lie died was flighty, and no sense or reason in him.” But these statements appear in the deposition, “ I could get no sense or reason in what he said, and that is the reason why I cannot remember. I meant to say I could find no sense or reason in what he said,” etc.
It is apparent that the exclusion could not have injured the plaintiff, if the portions excluded were admissible, inasmuch as the same statements from this witness were received and permitted to be read to the jury.
5. This case, according to the report before us, had been tried once before, and with the result of disagreement. There was evidence on both sides, and in the conflict of proof, the law devolves on the jury the duty and responsibility of determining where the truth may be. The jury, with better means of judging than we can have, for they saw and heard the witnesses, have arrived at a result which they deemed in accordance with the preponderance of testimony, and there is no such flagrant error in their verdict as will justify us in setting it aside.
Motion and exceptions overruled.
Cutting, Kent, Walton, and Daneorth, JJ., concurred.