his lunacy. Indeed that was the decision in Levy v. Baker, reported in a note to Brown v. Joddrell. But

and business one, and made by the defendants in good faith, and in ignorance of the plaintiff's unsoundness, and the Court in giving judgment for the defendant, thus reviewed the cases:

"The plaintiff's counsel distinguished the cases of Browne v. Joddrell, 1 Mood. & M. 105, and Baxter v. The Earl of Portsmouth, 2 C. & P. 178, 5 B. & C. 170, and other cases of that sort, on the ground that necessaries furnished to a lunatic were an exception to the general doctrine that he could not make a contract; and he cited the judgment of the Lord Chief Baron, in the case of Gore v. Gibson, as showing a distinction between express and implied contracts, and deciding that all express contracts were void, if the parties to them were incapable of making a contract. On the other hand, it was argued by the defendant's counsel, that there was a distinction between contracts executed and executory; that executory contracts could not be enforced, but that executed contracts could not be disturbed, if made in good faith and without notice of the incapacity; and he called our attention to this, that all the cases cited were cases where damages for the breach of an executory contract were in question, but that no case had yet decided, that an executed contract, if perfectly fair and bona fide, could be questioned on the ground of the unsoundness of mind of both parties; and he cited the cases of Howard v. The Earl of Digby, 2 Cl. & Fin. 634; Williams v. Wentworth, 5 Beav. 325; and Selby v. Jackson, 6 Beav. 192, to show that the House of Lords in the first case, and Lord Langdale in the two last, had recognised the liability of lunatics or their estate, in respect of contracts bona fide acted upon. The case of Neill v. Morley, 9 Ves. 478; before Sir William Grant, to the same effect, had been cited before, by the counsel for the plaintiff.

"As far as we are aware, this is the first case in which it has been broadly contended that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and although perfectly fair, bona fide, reasonable, and without notice, on the part of those who have dealt with the lunatic.

"On looking into the cases at law, we find that, in Browne v. Joddrell, Lord Tenterden says, 'I think the defence (of unsoundness of mind) will not avail, unless it be shown that the plaintiff imposed on the defendant.' In Baxter v. the Earl of Portsmouth, 5 B. & C. 170 (the Nisi Prius authority of which is in 2 C. & P. 178), Abbott,

it appears to me to be still uncertain whether he be liable upon an executed contract to a person who

C. J., with the concurrence of the rest of the Court, laid down the same doctrine. In Dane v. Viscountess Kirkwall, Mr. Justice Patterson, in directing the jury, said, 'It is not sufficient that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it, and took advantage of it.'

"We are not disposed to lay down so general a proposition, as that all executed contracts bona fide entered into must be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude, that when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic, or those who represent him. And this is the present case, for it is the purchase of an annuity which has ceased." This judgment was subsequently affirmed on error in the Exchequer Chamber; 4 Excheq. 18.

The same principle was adopted in Pennsylvania, in Beals v. Lee, 10 Barr, 60 (following La Rue v. Gilkyson, 4 Id. 375), where it was held that the administrator of a lunatic could not, in the absence of fraud or knowledge of his state of mind, or such conduct on the part of the lunatic from which his disease might fairly be inferred or suspected, recover back the price of merchandise sold to him, even though it was unsuited to the object for which it was purchased, and above the market price.

In Massachusetts, however, in the case of Seaver v. Phelps, 11 Pick. 304, which was trover for a promissory note, pledged by the plaintiff while insane, to the defendant, the Court were, on behalf of the latter, requested to charge, that although the plaintiff might have been insane at the time of making the contract, yet that if the defendant were not apprised of that fact, or had no reason, from the conduct of the plaintiff or from any other source, to suspect it, and did not overreach or impose upon him, or practice any fraud or unfairness, the contract could not be annulled; but the Court refused so to charge, and the jury having found for the plaintiff, the Supreme Court affirmed the judgment, on the authority of Thompson v. Leach, 3 Mod. 310, and regarded the law on the subject of contracts made

knew of his lunacy, but did not take advantage of it, or upon any executed contract at all. If I were to conjecture, I should be disposed to think that in the former case he would be liable for necessaries, (a) and in the latter case not liable at all.' But these are

(a) The Courts of Chancery uphold the liability of a lunatic for necessaries, and on his decease such debts are payable out of his real or personal assets. (Wentworth v. Tubb, 1 Young & Col. N. C. 171.)

by lunatics, as being on the same footing as those of an infant; and it was said that the case of Baxter v. The Earl of Portsmouth, supra, was, notwithstanding the dicta in the case, decided mainly on the ground of the carriages being suitable to the defendant's condition in life, and the opinion of Lord Tenterden, in Brown v. Joddrell, supra, as to the materiality of the absence of imposition, was disapproved. It may be remarked, however, that Thompson v. Leach is not an authority for such a point, further than that "the grants of infants, and of persons non compos mentis, are parallel both in law and reason," and this is a well-settled rule of the law of real estate, the grants of both being voidable; F. N. B., 202 n, Mitchell v. Kingman, 5 Pick. 431; Allis v. Billings, 6 Metcalf, 419 (see the termination of the case in 2 Cush. 19, by which it appears that the party was, at times at least, only feigning insanity); Fitzgerald v. Reed, 9 Smedes & Marsh. (Miss.) 102. The recent case of Hallett v. Oakes, 1 Cushing, 296, was an action to recover the value of professional services in a habeas corpus to procure the liberation of one who was insane and remanded as such, and a recovery was allowed on the ground of such services being classed with necessaries, and having been rendered by the plaintiff in good faith, and on due inquiry into the grounds and causes of the confinement.

'Such was the distinction noticed in La Rue v. Gilkyson, 4 Barr, 375, where the executor of a lunatic was held liable for board, washing, &c., of the testator while insane. "But," said the Court, "to supply him with articles known to be improper for him, would bear upon the face of the transaction evidence of an attempt to take advantage of his infirmity, and he would not be liable for the price of them. Nor would he be liable on a contract unexecuted by either party."

merely my conjectures, and I request that you will attach no weight whatever to them. (a)

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*As the law regarding the contracts of lunatics has experienced some alteration, so also has the law regarding contracts entered into by the class of persons whom I shall next specify,—I mean persons deprived of the use of their ordinary understanding by intoxication. It has been always admitted, that, if one man by contrivance and stratagem reduced another to a state of inebriety, and induced him, while in that state, to enter into a contract, it would be void upon

(a) It remains to be scen, nevertheless, whether Mr. Smith's conjecture may not have considerable weight attached to it in deciding the law on a point which is still, we believe, in the same state of uncertainty as when he wrote this lecture in 1841.

As regards bills of exchange and all specialties, lunacy appears to have been held a good defence, whether there has been a knowledge of the insanity or not; but Lord Tenterden, C. J., seems to have qualified this doctrine in the case of Sentance v. Poole, 3 Carr. & Payne, 1, 14 E. C. L. R. It was an action by an innocent endorsee to which insanity was pleaded, and the learned judge laid it down to the jury that they "should be satisfied that he (the defendant) was not conscious of what he was doing, and that he was imposed upon by reason of his imbecility of mind." This limits the defence, and brings it very nearly within the requirements of a plea of fraud. The case of Alcock v. Alcock, 3 M. & Gr. 268, 42 E. C. L. R., where the maker of a promissory note was allowed to plead the insanity of the endorser at the time he endorsed, decides nothing more than that the Court will grant leave to a defendant to amend his pleas by adding that of insanity to the record, the fact of the endorser's lunacy having come to the defendant's knowledge after issue joined. It does not at all follow that the judges would have held otherwise than as Ld. Tenterden held in Sentance v. Poole ; the question there put, might have been left to the jury in the case of Alcock v. Alcock. The exact limit of this defence is undefined; and it would be presumptuous and useless to attempt to carry it further than Mr. Smith has done in the absence of more decisive authority.

the ordinary ground of fraud; for the liquor would be in such case an instrument used by the one party to assist him in his plot against the other. (See Gregory v. Frazer, 3 Camp. 454; Brandon v. Old, 3 C. & P. 440, 14 E. C. L. R.) But it has been supposed that, where the drunkenness of the contracting

[233] party was not occasioned by the fraud of the contractee, but by his own folly, he could not in such a case set it up as a defence; since, by doing so, he would have taken advantage of his own wrong. You will see this view taken in Coke Litt. 247, a, and even so late as Cory v. Cory, 1 Ves. 19. There are, however, several late cases, in which it seems to have been treated as erroneous. In Pitt v. Smith, 3 Camp. 33, issue had been joined upon the question whether there was an agreement between the plaintiff and defendant for the sale of an estate. It turned out that there was an agreement signed, in fact, but that one of the parties when he signed it was intoxicated; Lord Ellenborough said:

"There was no agreement between the parties, if the defendant was intoxicated, in the manner supposed when he signed this paper. He had not an agreeing mind. Intoxication is good evidence upon a plea of non est factum to a deed, of non concessit to a grant, of non assumpsit to a promise ;"(a)

And he directed a nonsuit, which the full court afterwards refused to set aside. In Fenton v. Holloway, 1 Stark. 126, 2 E. C. L. R., Lord Ellenborough again

(a) Under the new rules of pleading it must of course be specially pleaded.

2 Hotchkiss v. Fortson, 7 Yerger, 67; Harvey v. Pecks, 1 Munford, 518.