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should seem that a contract for the sale of goods and of a goodwill must be stamped (o). And an agreement between merchants that one shall take a share in the outfit of a ship and the adventure, was held not to be an agreement within the exception (p).

It is observable that the statute mentions "goods, wares, and merchandise” only. It seems that a contract strictly for the manufacture of goods and the supply of materials, was not, until the recent act of 9 G. 4, c. 14, s. 7, 8, within the exemption (9). In regard to the sale of growing and other crops, whenever the contract is to be viewed as a sale of goods, unconnected with an interest in land, no stamp is necessary; but when the agreement is to be viewed as conferring an interest in land, or relating thereto, then a stamp is essential, to give the instrument operation at the trial (r). A contract for fixtures does not fall within the exemption (s). But an agreement to supply a house and buildings with water by means of pipes, to be laid in a certain manner, and to a certain height, is an agreement relating to the sale of goods within the exception (t).

The 9 G. 4, c. 14, s. 8, provides, that "no memorandum or other writing made necessary by that act shall be deemed to be an agreement, within the meaning of any statute relating to the duties of stamps." The former parts of the act require that writing shall be necessary in the instances of promises or acknowledgments, (except by part payment,) to take a case out of the Statute of Limitations (1), of confirmations by adults of contracts made during their infancy (2); of representations or as

(o) South v. Finch, Scott, 506; 3 362; Lee v. Risdon, 7 Taunt. 191; N. C. 506.

Hallen v. Runder, 1 C., M. & R. (p) Leigh v. Bunner, 1 Esp. R. 266; and other cases post, Index, tit. 403. Contracts for transferring a ship Crops. are exempted by 6 G. 4, c. 41.

(s) Wick v. Hodgson, 12 Moor, 43; (9) Wilks v. Atkinson, 6 Taunt. 11; and see Hemming v. Perry, 2 M. & P. see Boydell y. Drumunond, 11 East, 375; per Park, J., Murson v. Start, 2 150; lughes v. Breeds, 2 Car. & P. Scott, 243; Hallen v. Runder, 1 C., 159; Pinner v. Arnold, 2 C., M. & R. M. & R. 266. 613; 1 Tyr. & G. 1; 1 Gale, 271, (1) West Middleser Water Ilorks S. C., overruling the case of Buxton Company, V. Suwerkropp, M. & M. v. Budull, 3 East, 303. The distinc

408. tion appears to be between a contract (u) See Morris v. Diron, 4 Ad. & 10 minutacture goods with materials E. 845; 6 Nev. & M. 438, S.C., ante, found by the manufacturer, and a con- 123. But a promissory note for a tract to perform work on materials pro

debt barred by the statute, must, of vided by another party, the former course, be stainped; Jones v. Ryder, contract being exempted from the duty. 4 M. & W. 32.

(r) lidlington v. Bristow, o B. & (1) Post, 155. P. 451; lurker v. Slunilund, 11 Fast,

surances as to the character or credit of a third person, in order that he may be trusted (y); and of contracts for work to be done and materials to be provided in manufacturing goods. Contracts for these purposes do not, therefore, require to be stamped.

(y) Huslock v. Ferguson, 2 Nev. & P. 269; Swan v. Phillips, 3 Nev. & P. 467.



Section I.--With Persons incompetent to Contract; or pro

tected from Liability on their Agreements.

Section II.-- With particular Persons competent to Contract.


With Persons incompetent to Contract; or protected from Lia

bility on their Agreements.

1. In general.
2. With Persons of non-sane Vind.
3. Drunkurds.
4. Infants.
5. Married Women.

6. diens. 7. Outlaws and Persons attainted. 8. Bankrupts. 9. Insolvent Debtors. 10. Il'ith Persons under Duress.

1. IN GENERAL.—To constitute a binding agreement, there must exist the mutual consent of the parties, that a certain act shall be done or omitted (a). The party to be charged must not only express his assent that he will be bound, but must be endowed with some degree of reason and judgment, to enable him to comprehend the subject. The assent which is requisite to give validity to a promise necessarily supposes a free, fair, and serious exercise of the reasoning faculty ; in other words, the power, both physical and moral, of deliberating upon the matter, and weighing its consequences. If the party be absolutely deprived

(a) See ante, 9; 1 Pothier, 29, pt. 1, c. 1, s. 1, art. 4; Evans's ed. The essence of a contract consisting in consent, it follows, that a person must

be capable of giving his consent, and consequently must have the use of his reason in order to be able to contract." Id.

of the use of his understanding, or be deemed by law not to have attained a sufficient degree of mental power, there can be no aggregatio mentium, or mutual assent of minds; and, consequently, no binding agreement. A capacity to contract is absolutely necessary ;—the law protecting those who cannot protect themselves.

But the law presumes that there is a full capacity to contract. The instances in which protection is given from responsibility on agreements, on account of mental inability, forin exceptions to the general rule (6); and must be strictly established on the part of the promiser who claims exemption. It is only in the prescribed instances that protection can be claimed: and weakness of mind short of insanity; or immaturity of reason, where the party has attained full age; or the mere absence of experience or skill upon the particular subject of the contract in question; afford no ground for relief at law or in equity, if no actual fraud be practised on the party.

It will be perceived, that, in some cases, the incompetency to contract is general and absolute; in others, limited :- and that in some cases, the contract is void against both the parties; in others, only the incompetent or protected party can shelter himself from liability upon this ground. Thus the contracts of persons of non-sane minds and of infants, are not, in every case, absolutely inoperative against them. They may, as we shall shortly observe, enter into certain simple contracts, and are bound thereby, in the absence of fraud. And parties contracting with persons whom the law shields from responsibility upon the ground of mental infirmity, cannot in general, it seems, object to the inability of the latter as a defence. At least this will apply to the cases of contracts with infants, and with parties induced by fraud or duress to enter into an agreement. The infant, or the party defrauded, or impelled by fear to enter into the agreement, might maintain an action thereon for any breach of the contract on the part of the person who stipulated with him (c).

(b) Toute personne peut contracter, des exceptions qui ne doivent jamais si elle n'en est pas declarée incapable s'entendre aux cas non prévus." par la loi.French Code Civil, livre (c) The French law is to the follow3, titre 3, sect. 2, art. 1123. Upon ing effect :- Le mineur, l'interdit, et which Rognon observes, Le principe la femme mariée, ne peuvent altuquer général est que tout le monde est capa. pour cause d'incapacité, leurs engageble; les incapacités sont consequemment ments, que dans les cas prévus par la

However, the general principle is, as before shown, 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 (C).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 (9). 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 (h).” 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 (i). 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 ; and in Tarbuch v. Bispham (k), it was doubted whether an account could be stated with a lunatic.

loi. Les personnes capables de s'en- (f) 1 Bla. Com. 302, 3. gager ne peuvent opposer l'incapacité (8) Year Book, 9 Hen. 6,b; Britdu mineur, de l'interdit, ou de la femme ton, tit. Dette, folio 66; F. N. B. 466 ; mariée, avec qui elles ont contracté.post. Id. art. 1125.

(1) Lit. sec. 405, 6; Bro. Ab. Dum (d) Ante, 9, 15.

fuit, pl. 3; 1 Inst. 274 a; Beverley's (e) See Collinson's and Highmore's case, 4 Rep. 120 ; Stroud v. Marshall, Treatises on Lunacy; Bac. Ab. & Cro. El. 398; Cross v. Andrews, id. Com. Dig. tit. Idiot ; 1 Bla. Com. 622. 302; Chitty's Medical Jurisprudence, (i) Yales v. Boen, Stra. 1104; 2 349, 347. As to the discharge of in- Bla. C. 291, 2; 1 Fonb. Tr. Eq., 5th solvent lunatics, see 1 & 2 Vict. c. edit. 48, n. (8); per Bayley, J., Bag110, s. 102. Actions on contracts ster v. Earl of Portsmouth, 5 B. & C. made with lunatic should be brought 170, post; Faulder v. Silk, 3 Camp. in the name of lunatic, not his com- 126. As to a lunatic suffering a recomittee; 1 Chit. Pl. 18, 19. The wife very, Egremont and l'ale, 2 M. & P. of a lunatic, who has no committee, 264; 5 Bing. 176, S. C. As to a fine has sufficient implied authority to sue levied by lunatic, see Murley v. Shere in his name; Rock v, Slade, 7 Dowl. ran, 1 Per. & D. 126. 22.

(k) 2 M. & W.6.

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