In an action () 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 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 (m). 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 plaintiff's 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 (n), 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 in

(1) Bagster and others v. Earl Portsmouth, 2 C. & P. 178; S. C. in 7 D. & R. 614, and 5 B. & C. 170; Dane v. Kirkwall, 8 C. & P. 697. 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. In Sentance v. Poole, 3 C. & P. 1, it was held, that if a person perfectly imbecile in mind is imposed

upon and induced to sign a promissory note drawn in an usual form, such note is bad.

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

126.

(n) Stroud v. Marshall, S Cro. Eliz. 398; Cross v. Andrews, id. 622.

sanity is a good defence; Yates v. Boen (0), Sergeson v. Sealy (p), and Faulder v. Silk (q). [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 an answer to the action (r)?] There is a vast difference between a mental infirmity, brought on by a 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 inconveniences 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. Myjudgment 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 con

(0) Stra. 1104.
(p) 2 Atk. 412.

(g) 3 Camp. 126.
(r) See post, 140.

tract; 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 (s) 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 (t) 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

(s) Brown v. Jodrell, 3 C. & P. 30; (t) 9 Ves. 478. M. & M. 105, S, C.

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 (u). But he seems not to be responsible on specialties; and probably he may not be liable on special executory contracts; nor it should seem on an account stated (x). His liability for necessaries and suitable articles, is rather a protection and benefit, than a disadvantage to him.

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 (y).

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

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 (a). 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 (b). In Pitt v. Smith (c), 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

(u) Dane v. Kirkwall, 8 C. & P.

679.

(x) Tarbuch v. Bispham, 2 M. & W: 6.

(y) See M'Adam v. Walker, 1 Dow, R. 177.

(2) 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, 31.

(a) Cory v. Cory, 1 Ves. 19; 3 P. Wins. 130; Co. Litt. 247; 1 Foubl. Tr. Eq. 5th ed. 67, 63; Stockley v. Stockley, 1 Ves. & B. 30.

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

(c) 3 Camp. 33. And see Sentance v. Poole, 3 Car. & P. 1.

adhered to the same principle in a subsequent case (d). It is also worthy of observation, that the same doctrine is upheld by the law of Scotland (e). And Pothier (f) 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 (g).-The age of twentyone years () has been fixed as the period when an absolute and unlimited legal ability to contract shall commence or it may, perhaps, be more correctly said, that at this period the protection afforded to infants against improvident bargains, and the artifices of designing persons, ceases. For infants are rather incapable of obliging themselves by their contracts, than incapable of contracting. This rule appears to have been borrowed from the feudal law, by which the tenant, at this age, was presumed to have acquired sufficient bodily strength to attend his lord in the wars; and therefore, at this age, ceased to be the ward of his guardian in chivalry (i).

The general principle is, that the contract of an infant, however fair and conducive to his interests it may in reality be, is not binding on him, unless the supply of necessaries to him be the object of the agreement; or unless, after he has attained the age of twenty-one years, he confirm his voidable contracts (k). It becomes therefore material to consider ;

1stly, What are necessaries.

2ndly, What are not so.

3rdly, The confirmation after coming of age.

And 4thly, The liability of others contracting with infants. The mode of pleading and proving the defence of infancy will be noticed hereafter.

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

126.

(e) 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.

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

(g) See in general, Bing. on Infancy; Com. Dig. Enfunt; Bac. Ab.

Infancy. As to the nature of an infant's incompetency to contract, ante, 135. As to an infant's contracts in France, ante, 108, note (c). An infant may hold the office of clerk of the peace, Crosbie v. Hurley, 1 Alcock & Napier, 431.

(h) See Anon. 1 Salk. 44; 2 Pothier, by Evans, 31.

(i) Co. Litt. 78 b, 171 b.

(k) Bac. Ab. Infancy (I 3); 1 Wood. V. Lec. 400.