The plaintiff executed to his sister, Mrs. Rowlandson, a deed of a lot situate near the Mission Dolores, in the City and County of San Francisco, and a bill of sale of a house, and other improvements, on a lot on Sutter street, including also certain household furniture. The conveyance bears date April 15, 1856, and the bill of sale, August 15, 1855, but both were acknowledged on the same day, viz: April 15, 1856. The plaintiff also sold to Thomas Rowlandson, at or about the same date, a warehouse situate on Leidesdorff street, together with th^ plaintiff’s stock in trade therein, and assigned to Rowland-son the lease of the lot on which the warehouse stood, and the good will of the plaintiff’s business as a wholesale and retail liquor merchant, and certain book debts and bills receivable—• all of the aggregate value of twenty-five thousand dollars. The plaintiff left for the East by the steamer of April 21,1856, and Rowlandson on that day took possession of all and singular the property before named, and proceeded in the conduct of the liquor business, and in the management of all the property, in his own name. The plaintiff returned to this State November 24, 1860, and on the 2d of October, 1861, commenced this action for the purpose of setting aside the conveyance, bills of sale and assignments aforesaid, on the ground that he was incapacitated by insanity from transacting business at the time the papers were executed. The answer denies the allegation of insanity, and sets up the Statute of Limitations in bar. The trial was by the Court, who found for the plaintiff on both issues. The defendants moved for a new trial, on the ground that the evidence did not justify the decision, and also on the ground of certain alleged errors of law occurring at the trial. A new trial was denied, and the defendants’ appeal is from the order.
First—As to the sufficiency of the evidence to justify the *381finding that the plaintiff was insane at the time the conveyance and the other instruments were executed.
The appellants insist that there is no evidence in the case tending to prove that the plaintiff was insane at the time the execution of the papers was perfected by delivery; or if there was, still that the evidence on the other side was so overwhelming, as to justify the interposition of this Court under the rules by which its practice in such cases is governed.
The only point which we are here called upon to consider, is, whether there was a sensible conflict in the evidence bearing upon the question of insanity.
The counsel of the appellants is mistaken in supposing that the plaintiff’s alleged insanity could be established only by proof that he was “ entirely destitute of understanding.” Loss of understanding would be proof of an imbecile rather than of an insane or disordered mind. Fatuity is one thing, and madness is another; and an answer to the larger part of the argument submitted for the appellants, is found in the fact, that the distinction between the two has been overlooked. To establish the insanity alleged, it was sufficient for the plaintiff to prove that at the time he delivered the instruments referred to, he was incapacitated from a rational care of his property by reason of mental delusion. {Bond v. Bond, 7 Allen, 1.)
It appears that sometime before the instruments in question were executed, the plaintiff became involved in lawsuits, which were pending on the 21st of April, 1856, the day on which he left for the East; and the purpose and drift of the plaintiff’s evidence, was, to show that the merely natural concern awakened in his mind by the litigation, in the first instance, had, in the progress of events, taken on the form and impress of an insane fear that he "was in danger of losing, or of being “ robbed ” of his property through the lawsuits so pending against him; and that under the influence of that delusion he transferred all of his property without consideration to his sister and her husband.
It may be true that Crowther, when he first conceived the purpose of transferring his property, was perfectly sane, and *382that he was also sane when he opened a sham account with Mrs. Rowlandson before her arrival here from England; still, if, as matter of fact, he finally executed the papers in question under the influence and ascendency of the delusion named, it is enough. Though one of the instruments bears date August 15,1855, and the others April 15,1856, yet there was evidence introduced tending to prove that they were not in fact delivered until the 21st of that month—the day when they were all acknowledged. On that day, the plaintiff embarked for New York on board the steamer Sonora. A fellow passen- ' ger, who had known Crowther for some years, testified, that on the evening of the 21st, his conversation was rambling and incoherent, and was still more so the next day; that he talked about his troubles—asked the witness if “he thought they would rob him,” and said he “ did not know but that they would ruin him.” He said he came away all of a sudden— talked about his lawsuits, was confused, and the witness thought he was drunk “ because he talked so foolish.” There was no evidence that plaintiff drank anything on board, and none even that he ever indulged in the use of liquor. It further appeared, that on the third or fourth day out, the plaintiff “ became a perfect maniac,” stripped himself of Ms clothing and attempted to jump overboard. After this he was kept in a close room until the arrival of the steamer at Panama. At Panama, Crowther was put in the custody of a man hired for the purpose by the Captain of the steamer, and was accompanied by him to New York and thence to his friends in the State of Maine. On his arrival there, he was placed by his friends in the Insane Asylum at Augusta.
We need not remark upon the tendency of this testimony, nor upon the question of its force. The particular facts which it discloses are recognized indications of insanity—the apparent inebriation being one of the most significant. (Shelford on Lunacy, pp. 49, 67.) And it is to be borne in mind that these indications were developed, and in a remarkable degree, on the very day when the instruments in question were executed, and but two or three days before the plaintiff became *383lunatic beyond question. Were there no other testimony than that which we have referred to, the motion for new trial would have to be denied. But there is other testimony tending to prove that Crowther was under the influence of the particular delusion referred to, at the time when the papers were delivered, and at least for some days before. It was in proof that Crowther was of a highly nervous temperament; that he had been in the charge of his physician for some twelve months, before he left for the East; that “ his disease was more mental than bodilythat this mental disease increased gradually; that the disease threatened to terminate in lunacy, and might have been brought on by excitement at any moment; that a judgment for five thousand dollars in a slander suit had been recovered against him, and that he had been confined to his room for some ten days before he left for the East; that he was irritable, wakeful, and given to nightwalking; that “ prior to his leaving he was in the most excited state of nervous irritability,” and so much so that the defendant Rowlandson “ dreaded the effect of the voyage, and opposed it, only ceasing to do so when he found that his staying might probably be productive of more injury than taking the voyage.” Rowlandson, in a letter addressed to the Superintendent of the Maine Asylum, says: “He (Crowther) was rapidlyrecovering before he left San Francisco, a relapse being occasioned by the excitement of a forthcoming trial.” Crowther’s physician testified that he “ called on Crowther the day the boat was about to leave. Was sent for by Rowlandson, but came away without seeing him (Crowther). Was told by Rowlandson that Crowther was up stairs, very excitable, and it perhaps would be better not to see him. Heard him walking to and fro overhead.” The testimony on the part of the plaintiff• further tended to prove that Crowther was worth some forty thousand dollars, and was in good standing and credit as a merchant, and there was little or no proof that his apprehensions of ruin, as the result of his lawsuits, had any rational basis. The evidence of the plaintiff runs largely into detail, but the substance of it is contained in the foregoing summary. This *384testimony of the plaintiff, had, in our judgment, a manifest tendency to prove the insanity alleged. The evidence introduced by the defendants in support of their denial of the allegation of insanity, was very far from being destitute of weight, and if the Court had found the point against the plaintiff instead of for him, we could not have disturbed the judgment on the ground of a false finding.
Second—As to the defense of the Statute of Limitations.
The complaint not only alleges insanity on the part of the plaintiff, but contains allegations of fraud on the part of the defendants, and the replication meets the bar of the statute on the ground that the action was brought before the expiration of three years from the time when the fraud was discovered. We have examined the testimony bearing upon the question raised by the replication, and have considered the arguments of counsel. The evidence tends to prove that the plaintiff recovered his reason in February, 1857, and it is admitted that he returned to the State, November 24, 1860. Assuming that the plaintiff was insane at the time when the conveyance and bills of sale were executed, there can be no doubt that the point in controversy might well have been found in the plaintiff’s favor on the ground of that fact alone. All, or some at least, of the instruments were recorded, but it cannot be inferred from that that the plaintiff was advised, before his return to the country, of what he had done while insane. Nor does it appear that either of the defendants, in the frequent letters written by them to Crowther, or his friends during his absence, made any disclosures on that subject. A power of attorney, executed by the plaintiff to Rowlandson at or about the 21st of April, 1856, is referred to in the correspondence, and the- prominent idea, presented in all the letters, is, that Rowlandson was managing the property and business, as the agent of the plaintiff, to whom it still belonged, and to whom he held himself accountable. There was also evidence tending to prove that the defendants had availed themselves of the plaintiff’s insanity to procure the execution of the instruments in question. The weight of this evidence was with the Court *385that tried the cause, and, under the settled practice of this Court, we cannot review its finding.
Third—The findings were filed March 19, 1863, and the case was referred to a Master to take and state an account. On the 30th of the same month, the defendants filed and served a notice of motion for a new trial. On the 27th of April following, the defendants moved for a stay of proceedings then pending before the referee, on the ground of the pendency Of the motion for new trial. The motion was denied, and the denial is assigned for error.
By the one hundred and ninety-fifth section of the Act of 1863, it is provided that when “ an action has been tried by the Court, or by a- Commissioner or a referee,” the party intending to move for a new trial shall give a written notice thereof within ten days after receiving written notice of the findings of the Judge, or the report of the Commissioner or referee. The issues in this case were tried in part by the Court and were in part committed for trial to a referee; and therefore, the case does not fall within either of the express allotments of the section. But it is apparent that the intention of the Legislature, was, that proceedings in new trials should be postponed until cases had been “tried.” The trial of this case was not complete until the final report of the referee was filed. As the defendants renewed their notice of motion for new trial after the report was filed, and on a new statement, a decision of the point upon which we have just passed, is of no practical consequence, except, as it bears upon the regularity and effect of the referee’s report as a proceeding in the case.
Fourth—It is objected that, on the evidence in the case, the plaintiff was entitled to an allowance of five hundred dollars only as advance to the defendants by Brown Brothers & Co., in New York. This objection cannot be entertained, however well founded it may be, for the reason that it is not specified as an error of fact in the statement on motion for new trial.
Fifth—As to the seven hundred dollars advanced by the plaintiff to the defendant Rowlandson before he left England *386for this country, it was improperly allowed. The only account that could be taken, in the theory of the action, was of the property which passed into the hands of the defendants under the transfer, or by virtue of the power of attorney, made by the plaintiff while insane.
Sixth—It is urged that the Court erred in overruling the objection taken to the deposition of J. W. Crowther.
We are satisfied that the transactions connected with the taking of the deposition preclude the defendants from saying that the Commissioner was not a person competent to take it. Cross interrogatories were filed after the order designating the Commissioner was made, and were, together with the interrogatories in chief, annexed to the commission. Subsequently the defendants stipulated that the commission “authorizing the Hon. (George Evans to take the deposition of John W. Crowther, at the City of Portland, in the State of Maine, to be read in evidence on the trial of said action,” should be returned by Wells & Fargo’s Express. The defendants also obtained a stipulation from plaintiff’s attorneys granting further time within which to file cross interrogatories, and themselves stipulated that the deposition might be opened by the plaintiff without prejudice to his right to read it in evidence at the trial of the action. The filing of the cross interrogatories after the Commissioner had been appointed, coupled with the first stipulation, in our judgment estopped the defendants from saying that the Commissioner was improperly appointed.
In the event that the plaintiff shall, within fifteen days, file with the Clerk of this Court a release of the personal judgment against the defendants of sixteen thousand seven hundred and ninety-nine dollars and forty-two cents, to the extent of seven hundred dollars parcel thereof, the judgment will stand as affirmed, otherwise the judgment is reversed and new trial granted.
And it is so ordered.
*387Mr. Justice Sawyer being disqualified did not participate in the decision of this case.