plea by the law to disable his own person, but the heir may well disable the person of the ancestor for his own advantage in such case." (Litt. s. 405 (7); Co. Litt. 2 b; Beverley's ca. 4 Rep. 123 b, where, however, it is said that even the heir or executor could not avoid matter of record, and another idle reason is given for the general rule, viz., that the party when he recovers his memory cannot remember what he did when he was non compos mentis.) As regards drunkenness, this doctrine is on the face of it a wholly mistaken application of a principle which is properly applicable to criminal offences and merely wrongful acts, but has nothing to do with liabilities ex contractu. As regards lunacy, it is a merely frivolous technicality. However it is confidently stated as law by Coke; and we find it adopted by Lord Tenterden as late as 1827, though, as we shall immediately see, it had long before that time been exploded by other judges (m). It seems at least doubtful whether it was really supported by the authorities Coke had before him. At any rate they were conflicting, and Fitzherbert (F. N. B. 202 D) was expressly against him, considering the case of an infant as analogous. Bracton, following the civil law (n), said: "Furiosus autem stipulari non potest nec aliquod negotium agere, quia non intelligit quid agit" (fol. 100 a, cf. 165 b; and see Fleta, 3, 3. §§ 8, 10). But it is unnecessary to discuss this further. modern 2. The next theory is to the following effect: If a man First is so drunk or so insane as not to know what he is about, he cannot have that consenting mind which is indispensable Contract to the formation of a contract, and his agreement is there- absolute fore merely void. But if his mind is only so confused or inca (1) The text of Littleton concerns only the right of entry after a descent, but Coke's comment is general, and Beverley's case was on a bond. 30. (m) Brown v. Jodrell, 3 C. & P. (n) Inst. 3. 19, 8; Gai. 3. 106. For exposition of the Roman Law see Savigny, Syst. 3. 83-86; and cp. Pothier, Obl. §§ 49–51. void for pacity, or 'voidable weak that he cannot be said not to know what he is about, for fraud, but yet is incapable of fully understanding the terms and according to circum- effect of his contract, and if this is known to the other party, stances. then he may indeed contract, but the contract will be voidable at his option, on the ground of the other party's fraud in taking advantage of his weakness, though such weakness be short of incapacity. According to this the first class of cases would be reckoned with others in which agreements are absolutely void for want of real consent (as to which see post, Ch. VIII.) and the second would come under the general head of fraud. We find the first branch of this opinion decidedly adopted in common law practice in the last century and the earlier part of this, no doubt by way of reaction against Coke's extravagant dogmas. Lunacy was held admissible as evidence under a plea of non est factum, i.e. as showing the lunatic's act to be wholly void (0); and the like was said of drunkenness (p). Lord Ellenborough distinctly laid down that when the existence of an agreement between the parties was in issue, it was completely negatived by the intoxication of one party at the time of making the alleged agreement; and this was approved by the Court of King's Bench (2). The same view is to be found in the modern case of Gore v. Gibson (r), where however it was not material to the decision, as the drunkenness of the defendant and the plaintiff's knowledge of it were specially pleaded. And both branches of the doctrine were recognized in equity and are very completely stated in a judgment of Sir W. Grant (s). (0) Yates v. Boen, 2 Str. 1104. (4) Pitt v. Smith, 3 Camp. 33. We (r) 13 M. & W. 623, 14 L. J. Ex. 151. (s) Cooke v. Clayworth, 8 Ves. 12, 15. The references to earlier cases are purposely omitted. He also said that a Court of Equity ought not to assist a person who has obtained an agreement from another in a state of intoxication; but this is a mere dictum, and if it means that intoxication not such as to prevent the party from understand "I think a Court of Equity ought not to assist a person to get rid of any agreement or deed merely upon the ground of his having been intoxicated at the time: I say merely upon that ground; as if there was any unfair advantage made of his situation or any contrivance or management to draw him into drink, he might be a proper object of relief in a Court of Equity. As to that extreme state of intoxication that deprives a man of his reason, I apprehend that even at law it would invalidate a deed obtained from him while in that condition." in theory nient. This doctrine is quite intelligible, and in principle there Justifiable is nothing to be said against it. But the distinction between but not inability to understand so much as the nature of a trans- conveaction (which would make it wholly void) and inability to form a free and rational judgment of its effect (which if known to the other party would make it only voidable) is too fine and doubtful to be convenient in practice. The confusion of mind generally produced by drunkenness is exquisitely described by Chaucer in the Knight's Tale: "A dronkë man wot well he hath an hous, But he not [i.e., ne wot] which the rightë way is thider." Whether in any particular case a state of consciousness of this kind does or does not amount to absolute deprivation of a consenting mind for the purposes of contract is a question which it would be probably impracticable, and certainly undesirable, for a court of justice to enter upon. The same considerations apply with almost or quite the same force to the capacity of a lunatic. The reason why this inconvenience so long escaped notice appears to be that in the greater number of cases it is not necessary to decide whether the agreement was originally void or only voidable. 3. The third opinion, which has now prevailed, is that Present theory: the contract of a lunatic or drunken man who by reason of Contract lunacy or drunkenness is not capable of understanding its voidable if ing the effect of his contract is of itself a sufficient ground for refusing specific performance, it is distinctly contradicted by later decisions. Lightfoot v. Heron, 3 Y. & C. Ex. 586; Shaw v. Thackray, the lunacy, &c., known to other party. Camroux. terms or forming a rational judgment of its effect on his interests is not void but only voidable at his option: and this only if his state is known to the other party. The principle was established by the judgment of the Molton . Exchequer Chamber in Molton v. Camroux (t). The action was brought by administrators to recover the money paid by the intestate to an assurance and annuity society as the price of two annuities determinable with his life. The intestate was of unsound mind at the date of the purchase, but the transactions were fair and in the ordinary course of business, and his insanity was not known to the society. It was held that the money could not be recovered; the rule being laid down in the Exchequer Chamber in these terms: "The modern cases show that when that state of mind [lunacy or drunkenness, even if such as to prevent a man from knowing what he is about] was unknown to the other contracting party, and no advantage was taken of the lunatic [or drunken man], the defence cannot prevail, especially where the contract is not merely executory but executed in the whole or in part, and the parties cannot be restored altogether to their original positions." The context shows that the statement was considered equally applicable to lunacy and drunkenness, and the law thus stated involves though it does not expressly enounce the proposition that the contract of a lunatic or drunken man is not void but at most voidable. The general rules as to the rescission of a voidable contract are then applicable, and among others the rule that it must be rescinded, if at all, before it has been executed, so that the former state of things cannot be restored: which is the point actually decided. The decision itself has been fully accepted and acted on (u), though the merely voluntary acts of a lunatic, (t) 2 Ex. 487, 4 Ex. 17; 18 L. J. Ex. 68, 356. The same principle had long before been acted upon in equity, but without deciding whether there was a contract at law: Niell v. Morley, 9 Ves. 478. (u) Beavan v. M'Donnell, 9 Ex. 309; 23 L. J. Ex. 94; Price v. Berrington, 3 Mac. & G. 486, 495, revg. s. c. 7 Ha. 394; Elliot v. Ince, 7 D. M. G. 475, 488. ment of Matthews e.g., a voluntary disentailing deed (a class of acts with which we are not here concerned) remain invalid (a). The Developcomplete judicial interpretation of the result of Molton v. the do Camroux was given in Matthews v. Baxter (y). The decla- trine: ration was for breach of contract in not completing a pur- v. Baxter. chase plea, that at the time of making the alleged contract the defendant was so drunk as to be incapable of transacting business or knowing what he was about, as the plaintiff well knew: replication, that after the defendant became sober and able to transact business he ratified and confirmed the contract. As a merely void agreement cannot be ratified, this neatly raised the question whether the contract were void or only voidable: the Court held unanimously (one member of it expressly on the authority of Molton v. Camroux) that it was only voidable, and the replication therefore good. The special doctrine of our Courts with regard to partnership (which is a continuing contract) is quite in accordance with this: it has long been established that the insanity of a partner does not of itself operate as a dissolution of the partnership, but is only a ground for dissolution by the Court (z). of rule as now The law may be said then on the whole to be now Statement settled to the following effect: A contract made by a person who is drunk or of unsound mind so as to be in- settled. capable of understanding its effect is voidable at that person's option, unless the other contracting party did not believe and had not reasonable cause to believe that he was drunk or of unsound mind. delusions compati It is to be noted that the existence of partial delusions Partial does not necessarily amount to insanity for the purposes of this rule. The judge or jury, as the case may be, must ble with in every case consider the practical question whether the for con capacity (x) Elliot v. Ince, sup. (z) Lindley, 1. 224. (y) L. R. 8 Ex. 132 (1873). tracting. |