general principle is, as before shewn, that there must be a reciprocity of obligation, and that each must be bound, or neither is liable (d).

2. OF CONTRACTS WITH PERSONS OF NON-SANE MIND (e).

An idiot, or natural fool, is one that hath had no understanding from his nativity; and, therefore, is, by law, presumed never likely to attain any. A person is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters. A lunatic, or non compos mentis, is one who hath understanding; but, by disease, grief, or other accident, hath lost the use of his reason (f). It may often be material to attend to these distinctions, in ascertaining the liability of a person of unsound mind.

According to the most ancient authorities, a person non compos mentis may avoid his deed or feoffment (g). It was afterwards held that a man shall not be allowed to disable or stultify himself by pleading his own incapacity; "because he cannot know what he did in such a situation (1)." This latter doctrine seems to have been subsequently repudiated. And it appears, that at the present day, the bond or other specialty of an idiot or lunatic, is not binding upon him (¿). It is observable, that the ancient authorities upon this subject are chiefly confined to cases in which the non compos had entered into a specialty. In modern cases, his liability upon his simple contracts has been discussed and explained.

In an action (k) for the use and hire of carriages and harness, it appeared that the defendant, in writing, hired the carriages in question, with suitable harness. They were made to his order, and he was to pay a certain yearly sum for a limited number of

loi. Les personnes capables de s'engager ne peuvent opposer l'incapacité dumineur, de l'interdit, ou de la femme mariée, avec qui elles ont contracté." Id. Art. 1125.

(d) Ante, 13.

(e) See Collinson's and Highmore's Treatises on Lunacy. Bac. Ab. & Com. Dig. tit. Idiot. 1 Bla. Com. 302.

(f) 1 Bla. Com. 302, 3.

(g) Year Book, 9 Hen. 6, b; Britton, tit. Dette, folio 66; F. N. B., 466.

(h) Lit. sec. 405, 6; Bro. Ab. Dum fuit, pl. 3; 1 Inst., 274 a; Beverley's case, 4 Rep. 126; Stroud v. Marshall, Cro. El. 398; Cross v. An

drews, id. 622.

(i) Yates v. Boen, Stra. 1104; 2 Bla. C. 291, 2; I Fonbl. Tr. Eq., 5th edit. 48, n. (8); per Bayley, J., Bagster v. Earl of Portsmouth, 5 B. & C. 170, post; Faulder v. Silk, 3 Camp. 126. As to a lunatic suffering a recovery, Egremont and Vale, 2 M. & P. 264; 5 Bing. 176, S. C.

(k) Bagster and others v. Earl Portsmouth, 2 C. & P. 178; S. C. in 7 D. & R. 614, and 5 B. & C. 170. In Manby v. Scott, 1 Sid. 112, three of the judges said that an idiot was liable for necessaries supplied to him as a housekeeper.

years; the plaintiffs to keep them in order. It was proved that the defendant often used the carriages; that they were suitable to his station and fortune; and that the plaintiffs had no reason to suppose that he was of unsound mind. A commission of lunacy afterwards issued, upon which it was found that the defendant had been of insane mind, and unfit to have the government of himself, his lands, goods and chattels, from a period antecedent to the contract, until the holding of the inquisition (). It was contended at the trial that, by law, the contract of a lunatic is absolutely void. It was answered, that a lunatic was liable for necessaries suitable to his degree, on the same principle as an infant's liability is founded, notwithstanding his general incapacity to contract. Abbott, C. J., was clearly of opinion at the trial, that as the goods were suited to the defendant's degree, and had been actually ordered and enjoyed by him, and the plaintiffs had no reason to suppose him of unsound mind, the action was maintainable; and the plaintiffs had a verdict.

"In moving for a rule nisi, to enter a nonsuit, Brougham contended that lunacy is, in law, an answer to an action upon a contract. Independently of any authority upon the subject, general reasoning would support the position, that a person of insane mind is incapable of entering into any contract, either express or implied. Upon principle, a lunatic, being bereft of all reason, is considered in the eye of the law as if he were naturally dead. It is true, that in some cases it has been said, that a person in this melancholy situation cannot avail himself of this defence (m), because no man shall be permitted to stultify himself by setting up his own insanity. Originally the law was otherwise; and in modern times, it seems to have been clearly established, that insanity is a good defence; Yates v. Boen (n), Sergeson v. Sealy (0), and Faulder v. Silk (p). [Bayley, J. Those were cases of bonds or other specialties. Suppose, in an action on a bond, a defendant gave in evidence that he was intoxicated with liquor at the time of execution, would not that be answer to the action (q)?] There is a vast difference between a mental infirmity, brought on by a

(1) The inquisition is only presumptive evidence of the lunacy against third persons. Faulder v. Silk, 3 Camp.

126.

(m) Stroud v. Marshall, 3 Cro. Eliz.

398; Cross v. Andrews, id., 622.
(n) Stra. 1104.
(0) 2 Atk. 412.
(p) 3 Camp. 126.
(q) See post, 113.

party's own excess, and an insanity of mind, resulting from the visitation of God. A lunatic is, in the eye of the law, as incapable of contracting as if he were naturally dead. In this respect the plea of lunacy differs from that of infancy. An infant is not mentally incapacitated, and he may affirm his contracts when of age; but a confirmed lunatic can never be bound by an act done during the operation of his malady. No doubt great inconveniencies may arise from the principle contended for; but it is submitted that no distinction exists between necessaries and luxuries, or between simple contracts and specialties. A lunatic is utterly incapable of binding himself by any contract, either express or implied.”

Abbott, C. J. "I was of opinion at the trial, that the evidence produced in this case was not such as ought to defeat the plaintiff's right of recovering in the present action; considering that it was brought for the hire and use of carriages, suited to the state and degree of the defendant, and by him actually ordered and enjoyed. That was the ground on which I expressed my opinion. I, however, took care to distinguish this from the case of an unexecuted contract, and from the case of an agreement entered into under such circumstances as might lead any reasonable person to conclude, that at the time it was made, the party was of unsound mind. A case of the latter description would come under that class, where imposition is practised upon, or advantage taken of, the mental infirmity of the contracting party. To such cases, I by no means wished to extend the opinion which I have formed in the present instance. My judgment is governed by a reference to the particular circumstances of this case; and it is not to be understood as embracing cases of the description to which I have alluded. Imbecility of mind may, or may not, be a defence in the case of an unexecuted contract; I am not saying that it would, nor does my present opinion decide that it would not."

Bayley, J., and Holroyd, J., concurred: and Mr. Justice Littledale, said, "There is no doubt, that a deed, bond, or other specialty, may be avoided by a plea of lunacy, if, at the time it was executed, the contracting party was non compos mentis; but, it seemed to me, that the rule of law in this respect does not apply to the case of necessaries supplied to a person, who is, generally speaking, of sound mind, but insane on some particular subject. It is true that the inquisition in this case finds, retrospectively,

that the defendant was of unsound mind, both before and at the time these contracts were entered into; but, I think, that does not make any difference."

In a subsequent case (r) it appeared that the claim was for work done, &c., in some rooms belonging to a society, of which the defendant was the chairman. The defendant had, as chairman, signed a resolution that the work should be done, and had given directions. Subsequently he was found, under a commission of lunacy, to have been insane, from a period antecedent to the performance of the work; but the plaintiff was not aware, at the time, of the defendant's insanity; and he transacted business as usual. Lord Tenterden held that the action was maintainable; there being no evidence of imposition.

In the case of Niell v. Morley (s) the lunatic, being a plumber, attended a sale of building materials and bought several lots: this occurred in the month of May, 1800; in the month of August following, an inquisition was taken, finding him lunatic from the first of May, 1797. A bill was filed by his committee to recover back the purchase money; but there appearing nothing unfair in the sale, Sir W. Grant refused to interpose, and said, "assuming it to be the legal consequence that every act of the lunatic, subsequent to the time, (found by the jury,) is absolutely void, nothing can be more inconvenient than for this court to give effect to that legal consequence, setting aside every dealing in the course of his trade, giving an account of all he has lost, &c. If the plaintiff is right in saying all this is void at law, let him resort to law and recover if he can."

According to these modern authorities, the liability of a person of unsound mind, bears some analogy to the case of an infant, in regard to his contracts. The non compos is responsible for necessaries; and perhaps other goods suitable to his station, which have been actually enjoyed by him, and supplied under circumstances which evince that no advantage of his mental incapacity was attempted to be taken by the person contracting with him. But he seems not to be responsible on specialties; and probably he may not be liable on special executory contracts. His liability for necessaries and suitable articles, is rather a protection and benefit, than a disadvantage to him.

(1) Brown v. Jodrell, 3 C. & P. 30; M. & M. 105, S. C.

(s) 9 Ves. 478.

If the party were sane when the contract was made, evidence of previous or subsequent insanity is not material; except that, in a doubtful case, it creates a suspicion of insanity at the time the agreement was entered into (t).

With regard to persons of weak intellects, but not insane, even equity will not relieve; if no deception were practised (u).

3. OF CONTRACTS WITH DRUNKARDS.

It appears to have been formerly considered, even in equity, that an agreement is not void, although entered into by the party charged thereon, whilst he was in a state of absolute drunkenness; unless such inebriety were occasioned by the contrivance of the other party, or some positive fraud were practised (x). But, on principle, such an intoxication as entirely deprives a party of the use of his reason, seems to avoid an engagement entered into by him during this mental incapacity; although produced by his own folly, and although no actual fraud be intended or practised. And it would seem that this is the law at the present day (y). In Pitt v. Smith (2), Lord Ellenborough held that an agreement, signed by a person in a state of complete intoxication, is void, observing that "such a person had no agreeing mind." The learned judge adhered to the same principle in a subsequent case (a). It is also worthy of observation, that the same doctrine is upheld by the law of Scotland (b). And Pothier (c) observes:— "It is evident that drunkenness, when it goes so far as absolutely to destroy the reason, renders a person in this state, so long as it continues, incapable of contracting, since it renders him incapable of consent."

4. OF CONTRACTS WITH INFANTS (d).

The age of twenty-one years (e) has been fixed as the period'

(t) See M'Adam v. Walker, 1 Dow. R. 177.

(u) Osmond v. Fitzroy, 3 P. Wms. 129; 1 Fonbl. Tr. Eq. 5th ed. 66, 68, note (r); Lewis v. Pead, 1 Ves. jun. 19. As to inadequacy of consideration, see ante, 26.

(x) Cory v. Cory, 1 Ves. 19; 3 P. Wms. 130; Co. Litt. 247; 1 Fonbl. Tr. Eq. 5th ed. 67, 68; Stockley v. Stockley, 1 Ves. & B. 30.

(y) Id., Cooke v. Clayworth, 18 Ves. 15; 3 Chitty Com. Law, 54; ante, 10, per Bayley, J.

(2) 3 Camp. 33.

(a) Fenton v. Holloway, 1 Stark. R.

126.

(b) Ersk. Inst. 814, 815; 3 Camp. 34, note. As to frauds on drunkards, see Gregory v. Frazer, 3 Camp. 454; cited 1 B. & Ad. 670, per Cur.; Bul. N. P. 172; Brandon v. Old, 3 C. & P. 440.

(c) On Contracts, part. 1, c. 1, s. 1, art. 4, vol. i. page 29, Evans's ed.

(d) See in general, Bing. on Infancy; Com. Dig., Enfant; Bac. Ab. Infancy.

(e) See Anon. 1 Salk. 44; 2 Pothier, by Evans, 51.