#### George W. Wallis *versus*The President and Directors of the Manhattan Company.

The lunacy of a person who has executed a power of attorney, does not operate to revoke it,—at least, until the fact of his lunacy has been properly established by an inquisition.

The plaintiff having deposited in the bank of the defendants, certain sums of money, executed a general power of attorney in favor of his brother, and afterwards became lunatic. The attorney attempted to draw the money, thus deposited, out of the bank, by virtue of his power; but the defendants refused to honor his checks, in consequence of the lunacy of the principal, who was then, in an asylum for mad men ; but there had been no inquisition, nor proceedings in chancery, for the appointment of a committee of his estate.

Held, that the power was not revoked by the lunacy of the plaintiff, and that the defendants were bound to pay interest on the deposits, from the commencement of the suit to the time of the judgment.

This was an action of assumpsit, brought in the name of the plaintiff, to recover of the defendants a balance of 11,259 dollars, due from them, for deposites made in their bank by the plaintiff, and for collections made by them on his account.

At the trial of the cause, it appeared that the plaintiff,' at the time the action was commenced, was a lunatic, and in the asylum near New-York; that he was subject to fits of lunacy, but had, during a lucid interval, in the month of December, 1827, and while capable of understanding his own concerns, given a general power of attorney to his brother, *William*Wallis, authorizing him to transact business for him, and attend generally to his affairs. During the spring of the year 1829, after the power was given, and before the demand, hereinafter mentioned, was made of the defendants by William Wallis, the plaintiff became insane, and was placed by his friends in the asylum, where he remained until the 4th of September, 1829, when he was put on board a ship, which sailed for England, (his native country,) before the time of the trial, which took place in October thereafter. It fur*496ther appeared, that on one occasion, before the power was executed, the Court of Chancery had been compelled to interfere, in some way, in relation to the plaintiff’s property ; but no committee of his estate was ever appointed, nor were the facts relative to proceedings distinctly shown. It also appeared, that the plaintiff had been insane on two several occasions after the date of the power, and before the bringing of the action.

On the second of May, 1829, when the balance in the Manhattan Bank, infavor of' the plaintiff, was nearly 7000 dollars, William Wallis filled, up checks on that bank, *as attorney of the plaintiff, -*to the amount of 5000 dollars, and made application to the defendants to know whether the checks would be paid,—exhibiting, at the same time, his power of attorney. The cashier of the bank, knowing that the plaintiff was a lunatic, and in the asylum, and perceiving that the power was dated at a previous time, declined honoring the checks, until the counsel of the, bank could be consulted. The power being left with the cashier, afterwards, on the 16th of May, William Wallisagain made application at the bank, to know its decision, and was then informed that his checks . would not be paid,- unless the original power of attorney, from the plaintiff to him, was deposited with the defendants. . This the agent refused to do, stating that *the power was*a general one, authorizing him to act jn other matters,- and that he should have occasion to use it in the state of.Virginia; but he offered to leave an authenticated copy of the original power at the bank, if that would be satisfactory. . The defendants refused to accept a copy, and refused to pay the checks of the agent, if presented, and were then informed, that they would be held answerable for *interest*from that' time.

It did not appear that any checks were ever actually presented, or that any other demand of .the money, than that already mentioned, was made of the defendants; but between the second of May and the first of June, the balance in the bank, in favor of the plaintiff, had been swelled, by collections on his account, to 11,259 dollars; and after the last named period, this action was commenced. The officers of the bank made no objection to the paying of the money for the want of a regular demand, but were per*497fectly ready to honor the agent’s checks, if they could do so with safety to themselves. No indemnity was offered or required, and the sole difficulty in the case, grew out of the lunacy of the plaintiff ; but the defendants proved that it was their invariable usage never to pay money standing to the credit of dealers, except upon checks presented at the counter of their bank. After the foregoing facts had been made to appear by the plaintiff’s witnesses, the defendants moved for a nonsuit; but the presiding Judge (Hoffman) recommended that a verdict should be taken for the plaintiff, subject to the opinion of the court upon a case, either party having leave to turn the same into a bill of exceptions. This course having been assented to by the parties, a verdict for 11,500 dollars was returned in favor of the plaintiff; it being understood that the amount due should be adjusted by the court, (if the plaintiff was entitled to'recover,) so as to give or disallow interest, according as their opinion should be favorable or unfavorable to the plaintiff’s claim therefor *■*but if the court should decide that the action could not be maintained, then a nonsuit was to be entered.

A case having been afterwards made, *Mr. Slosson,*in behalf of the defendants, contended, that the actual lunacy of the plaintiff, known to both parties, operated as a revocation of the power previously given. He conceded, that if a lunatic, in a lucid interval, were to give a power which should be afterwards acted upon in good faith, that the rights of the parties under the power, would probably be protected. We do not contend (he said) that insanity in all cases works a revocation of a power previously given; but we insist, as the power is revocable, that where all the parties have actual notice of the situation of the lunatic, his power, as to them, *is*revoked. *[2 Kents Com. 1st Ed.*505.]

If a power of attorney be revocable, then -the power of revocation must include in it the power also, of exercising the intention *to continue*it. The person who grants a power, is supposed to exercise, *at all times,*the intention of continuing.it, until he manifests the contrary by an act of revocation. If a crisis shall arrive in his mind, whereby he cannot manifest a volition to *continue*the power, then, in contemplation of law, it is revoked. The continuance of *498the power depends upon *the*question, whether he who granted it, remains *disposed*to continue it. Take away the exercise of h*is*will, deprive him of the power of volition, and he can no longer be said to continue the power granted, or wish for its duration ;—as in th*e feme*sole,—while she remains single, she can grant a power; if she marry, she can no longer exercise a control over the subject of the power, and the marriage therefore operates as a revocation of it. [2 *Kent’s Com.*506. 5 *East,*266. *Rol. Jlbr. 331. Aon. W. Jones,*388.]

So if a will be made by a lunatic during his lunacy, the .will is void. Why *1*Because he has no power of exercising his volition. Every thing depends upon his control over his faculties, and when disqualified to exercise such control, the power previously granted ceases. This position does not extend beyond cases of known and established insanity, and it is not intended to embrace cases of mere phreusy from sickness, or even temporary insanity, originating in incidental causes.

The facts here, present a case for great caution, on the part of . the bank. The power was dated in December, 1827, yet'there was no attempt to exercise it, so far as the defendants were concerned, until May, 1829. The bank was ready to pay the money if they .could do so with safety, and they will not regret the course pursued, even if the decision of the court should be against them. But, the plaintiff in any event is not entitled to interest. Where money is deposited in a bank, to be drawn out whenever the proprietor of it may think proper, in order to charge the bank with interest, a demand of payment must first be made. Until that shall happen, there is no default, and interest will not be allowed until a wrong of some kind has been done to him who made the deposit. In ordinary cases, it is the duty of the debtor to seek his creditor and make payment of the debt due; but where a bank is concerned, no such duty devolves upon its officers. The proprietor seeks his money where he placed it, and nxo default can happen until demand and refusal take place. [1 *Esp. Cas.*115.]

*Mr. J. J. Roosevelt, contra,*for the plaintiff, contended,

that there was no necessity for a specific demand of payment in this case, be*499cause the acts of the defendants were tantamount to a waiver of such demand. They did not put their refusal to pay (he said) upon the ground of a want of demand, but upon the agent’s want of power. They proffered their readiness to pay whenever they could do so with safety to themselves, and when called upon.to say whether they would honor the agent’s checks or not, they distinctly refused to recognize his authority, unless he would deposit with them the evidence of his power to draw the checks. This evidence the agent refused to part with, for reasons which must be perfectly satisfactory to the court; and there is no rule of law, which could compel him to give up his power. The suit itself is a sufficient demand to charge the defendants with interest, for if they wished to avoid the consequences of their neglect, they should have brought the money into court. *[United States Bank v. The Bank of Georgia,*10 *Wheat. R.*333.]

II. The lunacy of the plaintiff was no revocation of the power. He was competent to make the power when it was granted, and his subsequent insanity could not, *per*se, revoke it. If the posi-, tion contended for by the defendant’s counsel, were true, there would be no safety in the authority conferred by any power of attorney.

There can be no lunacy which will revoke a power, until the fact is shown by proper proceedings out of Chancery. When a committee is appointed, the power may cease, but not before.

*Per Curiam.*

Although the authority of an agent may be revoked by the lunacy of' his principal, yet the existence of the lunacy, before it can. have that effect, must be established by inquisition. There would be no safety in admitting any 'other evidence of a fact, which is to have an operation so extensive; and sound policy requires us to adopt this rule. It is conceded by the counsel for the defendants, that the mere existence of lunacy, cannot *per*se, operate as a revocation of the power, because the disease being often of a temporary character, may exist, and yet be removed within any given period of time. If the mere fact of lunacy operated, like death, to revoke the power instantly, *500then any acts done under it, during the existence of the disease, would be void, even if the parties were ignorant of the principal’s situation. This is certainly not the law upon the subject. The mere existence of lunacy never operates to revoke a power, until the fact is judicially established by proper proceedings in Chancery. In such a case there can be no objection to allowing the effect, which the lunacy thus proved, might have upon the power; for a committee would then be appointed to take charge of the principal’s estate. Due notice would be given, and all the parties having an interest in the subject, would be apprized of the true slate of facts, and thus be put upon their guard.

In this case there is no evidence to show, that any proceedings have been had, to establish the fact of lunacy before the proper tribunals, although it is said, that on a former occasion, some application (the nature of which does not distinctly appear) was made to the Court of Chancery, in relation to the plaintiff’s estate. This evidence serves to show, that during the existence of the power, the plaintiff had been afflicted with this disease more than once, and had, during the same period, a lucid interval; for there could have been no other reason, why the proceedings in chancery were suspended, and finally dropped. Under every aspect of the case then, the only rule which the court can safely adopt, is to consider the power as subsisting and operative, until the fact of the plaintiff’s lunacy shall be established by a proper course of legal proceedings.

In this view of the subject, it is quite clear, that the defendants were bound to honor the checks of the plaintiff’s agent, and that they had no legal excuse for withholding the money deposited in their bank. It could not be necessary for the plaintiff to prove a formal demand, before the commencement of the suit, because the evidence shows, either that there had been a sufficient demand, or a waiver of it on the part of the defendants. It was proved, at the trial, that after some negotiation on the subject, the cashier of the bank finally proposed to pay the money now claimed, if the original power of attorney were deposited with the defendants; and this requisition not being complied with, the refusal to pay, was, in the end, distinctly put upon that ground.

*501Now it is quite clear, that the defendants had no legal right to require the deposit of the original power. Being a general power, it was the right of the attorney to retain it, and in offering to give an attested copy of it, he did all that the defendants could properly require. Having thus placed their refusal to pay on an untenable ground, the defendants cannot now set up as a defence, the want of a formal demand, which was not alleged by them at the time. They finally recognized the authoiity of the attorney to receive the money, and the plaintiff, upon the evidence in the case, is entitled to recover. There must, therefore, be judgment for the plaintiff, for the amount of his deposits, together with interest thereon, from the commencement of the suit.

*Judgment for the plaintiff.*

[J. J. Roosevelt, *Att’y for the plff.*W. Slosson, *Att'y for the deft.]*

See Kent’s Com. (2. edi.) vol. 2. p. 645, and the cases there cited, namely, Huddleston’s case, cited in 2 Ves. 34. 1 Swanst. R. 514 n. Sayer v. Bennett, 1 Cox’s Cas. 107. Waters v. Taylor, 2 Ves. & Bea. 301. Inst. 2. 12. 1. Bell’s Com. Vol. 1, p. 489.