For the purpose of cale lating interest, a month is to be considered the twelfth part of a year, and as consisting of 30 days; and interest for any number of days less than a month, is to be estimated by the proportion which such number of days bear to 30.(h) In the space of a day, all the twenty-four hours are usually reckoned, and the law rejects all fractions of a day, so as to avoid confusion. (i) This shows that the practice of computing the time of serving a summons, and other similar calculation, from such an hour to such an hour, of different days, in order to satisfy the time required by the statute, is erroneous, and, in general, when a person is bound to pay money, or do any other act, on a certain day, he has time till twelve at night of that day, after which the following day commences.(j) We shall have occasion to apply some of the above rules more particularly, when we come to speak of adjournments, and process, with the time of its return, execution, &c. DURESS OF IMPRISONMENT, Or duress per MINAS, avoids all contracts. The first is, where a man is illegally imprisoned in a common prison, or elsewhere. If, in consequence of this, he enters into any contract, it is void, though otherwise upon a good consideration. But this would not be the case if, in consequence of a legal imprisonment, unless undue and illegal force be used, or the party is made to endure unnecessary and unlawful privation. And it has been held, that if process is sued out maliciously and without probable cause, though in form regular and legal, to arrest and imprison the defendant, and a deed is obtained from him, while thus arrested, to procure his deliverance, such deed may be avoided by duress of imprisonment. (k) Duress per minus, is where a man is threatened with some personal injury, as death, illegal imprisonment, mayhem, loss of member, or the like. If he contracts under the influence of fears thus excited, his contract is void, though upon good consideration. But it is said that a contract obtained by menace of a mere battery, or trespass to land, or goods, is binding; the law considering that such a threat is not of a nature to overcome a firm and prudent man, for that sufficient and adequate redress may be obtained, if either of such injuries be inflicted.(1) The right of pleading duress, in avoidance of a contract is, like infancy, a personal privilege; and I have no right to plead that I entered into a bond or other contract, with, or in behalf of another, on account of du ress upon him. (m) It is to be observed that the party cannot avail himself of this defence except where the contract is made with the person at whose suit or instigation he is arrested, or who makes the threats; if the obligation be made to a stranger, it cannot be said to be done by duress.(n) THE CONTRACT OF AN INFANT, A MARRIED WOMAN, AN IDIOT, OR LUNATIC, may in general be avoided, and in some cases is absolutely void. But an infant may bind himself to pay for necessaries for himself and family suitable to his situation in life,(o) unless he live with his father or mother, master or mistress, and is maintained by them, in which case even his contract for necessaries is void.(p) An infant is not bound to pay for articles furnished, more than they were really worth to him as articles of necessity, and consequently, he may not be bound to the extent of his contract; nor can he be precluded, by the form of the contract, from inquiring into the real value of the articles furnished.(q) And an express promise to pay for necessaries is not necessary in order to make him liable.(r) An infant is not liable for a breach of promise of marriage ;(s) but may maintain an action for breach of promise against another.(t) An infant is liable to pay the debts of his wife, contracted by her before marriage.(u) He can in no case bind himself by a bill of exchange, promissory note, or settlement of an account even for necessaries,(v) neither is he liable for money lent and delivered to him to pay for necessaries, although the money be applied by him to that purpose. (w) And although he may bring an action for an injury done to, or a contract made with him, yet if he settles such injury, or for the violation of such contract, it shall not bind him. But in an action, the payment may be given in evidence, in mitigation of damages, and this even by a co-trespasser defendant, where the infant has received satisfaction from one of the wrong-doers, and given him a discharge.(x) An infant may also bind himself, by a renewal of his promise, on his coming of age. This must be by a promise, for a bare acknowledgment of the debt is not sufficient. There should be a promise to a party in interest or his agent, or at least an explicit ad mission of an existing liability from which a promise may be implied.(y) It a person who had promised marriage during non-age, continue his addresses and the same line of conduct, after attaining the age of twenty one years, as if the engagement still existed, he would probably be held to have ratified his promise, although no subsequent express promise could be proved.() It was formerly held that an idiot or lunatic could not avoid his contract at law, upon a maxim which had grown up, without reason in the opinion of many, that a man shall not be allowed to stultify himself. This doctrine is now exploded, and he may in all cases defend against his contract, on the ground either of idiocy of lunacy.(a) An idiot, or natural fool, is one who has had no understanding from his nativity; a lunatic, is one who has had understanding, but by disease, grief, or other accident, has lost the use of his reason, but who has intervals of reason, called lucid intervals. (b) A contract made during a lucid interval would of course be binding; and where a general derangement is shown, it is then incumbent on the one who insists that the act is valid, to show sanity at the very time when it was performed. Weakness of understanding is not, of itself, any objection in law to the validity of a contract. If a man has any glimmering of reason, so that he can tell his parents, his age, or the like common matters, he cannot avoid his contracts. But although mere weakness of understanding is insufficient, yet it furnishes strong ground of suspicion, and is an item in the proof of fraud, against which a court of equity will relieve, when it can be collected from the circumstances, and a court of law, where it is clearly established.(c) Idiots, lunatics, and habitual drunkards having estates, are frequently consigned by the court of chancery, with their person and property, to the custody of a committee, having power to take care of their persons and manage their estates. In this situation, it is often necessary that suits should be prosecuted in a justice's court, for or against them. For though an idiot from his nativity be not liable on his contract, (d) yet he is answerable in damages for any wrong he may have committed, the same as any other perAnd so of a lunatic. And either of them are thus liable, even after the execution of a commission from chancery, and being ordered into the custody of their committee.(e) A lunatic is moreover liable for debts which he has contracted, during lucid intervals, before the commission son. (y) 3 Wen. 479. (z) Vid. Com. on Con. 157. (a) 3 Day, 90. 15 John. 503. (b) 1 Bl. Com. 303, 4. (d) 3 Day, 90. 15 John. 503. 4 Cowen, 207. Chit. on Con. 29. (e) Vid. Bac. Abr. tit. Idiots and Lunatics (E), and authorities there cited. (c) Vid. 4 Cowen, 207, at large. Shel- East, 104. Hob. 134. ford on Lunacy, 414. executed; and either of them may sustain injuries, or have debts due to them, the same as a sane person. And a lunatic may be made liable for necessaries furnished by a tradesinan, who, at the time of supplying the goods, had no reason to suppose him a person of unsound mind.(ƒ) The committee of an idiot or lunatic cannot maintain an action on their behalf in his own name; the suit must be brought in the name of the idiot or lunatic.(g) An idiot must sue or defend in person, and the court will permit his committee or some other proper person, as his next friend, to assist in managing the prosecution or defence ;(h) but if an idiot has been allowed, however irregularly, to plead by attorney, and the parties proceed to trial, the verdict and judgment will be binding upon him.(i) A lunatic must appear by guardian if he be within age, and by attorney if he be of full age,(j) and the court will appoint a guardian or attorney on motion. (k) An idiot or lunatic are subject to arrest and action at law, the same as others, and may be imprisoned on mense process, or execution, or their personal property may be taken and sold upon execution.() In Brasher v. Cortlandt, 2 John. Ch. R. 400, it was held that no execution for a debt could reach their lands, after commission executed. And in a still more recent case,(m) the chancellor, in giving a construction to the existing statute in relation to their estates remarked: "The statute has given to this court exclusive jurisdiction over the estates of idiots and lunatics; and over the estates of habitual drunkards, except in a few cases, where concurrent jurisdiction is given to the court of common pleas. If any person has a legal or equitable claim against the estate which is under the care and management of the committee, who refuses to allow the same, he must apply to this court by petition, to enforce his claim. And he will not be permitted to obtain payment by means of a suit at law, except when the suit is brought under the express direction or sanction of this court. Although the lunacy of the defendant may not always form a legal defence, this court upon a proper application by the committee, will restrain such a proceeding, and compel the plaintiff to come here for justice. (1 Jac. & Walk. 636, 643. 5 Mad. R. 406. 2 Sch. & Lef. 229. 1 Hogan's R. 98.) And even if a party succeeds in an action at (f) 7 Dowl. & Ryl. 614. (g) Vid. Shelf. on Lunacy, 395. (h) Vid. Cooper's Med. Jurisp. 374, 5, 6, R. 121. 6 id. 133. and the cases there cited. (i) Vid. Shelf. on Lunacy, 395. (j) Id. 18 John. 134. (k) 18 John. 134. (1) 2 T. R. 390. 1 Tidd, 184. 4 T. 2 Bos. & Pull. 362. 12 Ves. 385. 13 id. 590. (m) 3 Paige, 200. law, it will be a contempt of this court for him to interfere with the property which is under its exclusive control." Of certain thiNGS, WHICH AVOID simple contraCTS ONLY.(1) 2. The legal avoidance of simple contracts may be, 1. By Fraud. The basis of all dealings is good faith; and though I have agreed to buy an article of a man, in which there is some secret defect, known to him, but unknown to me, but which he conceals, I am not bound to carry the contract into effect, if I find it out before the delivery; and if not till af terwards, I may return it, as we have before seen, and sue him for what I have paid.(n) The same may be said of any other fraud, deceit or imposition, which he may practice upon me. And although I am thus led to contract, in the strongest terms against myself, as by agreeing to run my own risk as to the goodness of the article, or other subject of our agreement, the whole is, notwithstanding, fraudulent and void. (0) Where one purchased goods on credit, which he obtained by a false representation, that he was a merchant in good business, &c. which goods were attached by his creditors, the vendor recovered the goods by replevin, out of the hands of the creditors.(p) So goods were recovered by replevin of an infant, who obtained them by a fraudulent representation that he was of age; but afterwards avoided the paying for them by a plea of infancy.(q) With regard to such part of the STATUTE OF FRAUDS, (2) as a justice is legally competent to consider, it is proper to notice, that by this statute,(r) no estate or interest in lands, other than leases for a term not exceeding one (1) This arrangement, distinguishing between such things as avoid all contracts, and such as avoid simple contracts only, was adopted in the first edition of this work. Although here continued, in conformity with the general design of the revis ion, it is to be observed, that the distinction has been, in effect, abrogated by the Revised Statutes. 2 R. S. 328. § 97. cited ante, p. 49. That statute authorizes the same defence to suits upon specialties as upon simple contracts, so far as sufficiency of consideration is concerned. 11 Wen. 106. Vid. also 13 id. 527. There must, however, be a plea or notice with the general issue, or the defence will not be admit ted. 2 R. S. 328, § 93. This defence cannot be shown to defeat a recovery upon a sealed instrument created previous to the Revised Statutes, 15 Wen. 502; and see the opinion of Bronson, J. in the case last cited, at pp. 518, 19, 20, 21. (2) The English statute of frauds and perjuries of 29 Car. II. has been substantially enacted in every successive revision of our statutes. In the recent revision, for the purpose of arrangement, its provisions are placed under the different heads to which the subjects properly relate, and are not connected together in the same chapter. Notwithstanding this, I have thought it proper to cite the different sections as parts of the statute of frauds, referring at the same time to pages and sections, according to the order in which they may be found in the 2d ed. of the Revised Statutes. (n) Ante, p. 105. (0) Vid. 1 Com. on Con. 38. (p) 15 Mass. R. 156. (q) Id. 359. |