¶1By the Court,
¶2A lunatic cannot be punished for crime, but he may be sued for an injury done to another. He is not a free agent, capable of intelligent, voluntary action, and therefore is incapable of a guilty intent, which is the very essence of crimé j but a civil* action, to recover damages for an injury may be maintained against him, because the intent with which the act is done is not material. But the principle upon which I'his distinction rests reaches also to the measure of damages in a civil action. Ordinarily, in an action for a personal injury; the amount of damages is, at least to a considerable extent, governed by the motive which influenced the party in committing the act. Thus it is usual, and as proper as it is usual, for thé court, upon the trial of an action for an assault and battery, td instruct the jury that the action is maintainable even though the injury was accidental; (that if intentional, yet when the act is done under the excitement of strong provocation, it is a proper ground for the mitigation of damages. , And; on the contrary, that when the act is committed deliberately or maliciously, it is good ground for increasing damages. In short, in such cases, the damages are graduated by the intent of the party committing the injury. But in respect to the lunatic, as he has properly no will, it follows that the only proper measure of damages in an action against him for a wrong, is the mere compensation of the party injured. The charge of the learned judge, upon the trial, was therefore, in this respect, entirely correct. -
¶3But I think sufficient weight was not given, either by the judge or the jury, to the fact that fhe plaintiff himself, immediately after he was discharged from- arrest upon the warrant against him, made application, according to the provisions of *651the act in relation to the safe keeping and cave of lunatics, (1 R. S. 635, § 8,) for a warrant to apprehend and confine the defendant, as a lunatic. The judge charged the jury that, as a general rule, sanity is to be presumed until the contrary is made to appear. So far, perhaps, the charge was correct, but I think he should have further instructed the jury that the fact that the plaintiff had, at the time,.made application for the confinement of the defendant as a lunatic, and had founded that application upon the circumstances of his own arrest upon the warrant issued by the defendant, was strong, if not conclusive, evidence of the defendant’s insanity, in the absence of all proof to show that the plaintiff was in fa.ct mistaken, or even thought he was mistaken, when he made the application. The fact that the plaintiff, and as it would seem, all who had any knowledge of the proceedings against the plaintiff for perjury, believed those proceedings to have been the result of the defendant’s insanity, was not, I think, sufficiently considered. The jury should have been instructed that they had the right at least, to take the plaintiff’s judgment as to the state of the defendant’s mind, as conclusive against him, until he should himself show that he had been mistaken in his opinion. There was no such evidence, and from the facts and circumstances detailed in the case, I think I should have come to the same conclusion that the plaintiff did, that the issuing of the warrant was but the freak of a madman, The power of the court to award a new trial ought to be cautiously exercised when the error complained of relates only to the amount of damages; but under all the circumstances of this case, and taking into consideration the novelty of the defence, I think it is one of those cases in which a due regard to the ends of justice and a discreet exercise of the power of the court, fully warrants us in directing that the cause should be submitted to another jury.
¶4New trial granted.