AMERICAN JURIST.

NO. XLI.

APRIL, 1839.

ART. I.-LAW OF CONTRACTS.

No. 3. Of the Parties.

OUR last article, in which we commenced the subject of the parties to contracts, was devoted (perhaps at too great length) to the consideration of them, as affected by infancy. In this article, we shall, in a much briefer discussion, conclude the subject of parties, under the several divisions which we have already indicated.

2. NON COMPOTES MENTIS.

Persons non compotes mentis, as idiots and lunatics, and young children, are naturally incapable of making a contract.' But from the time of Edward the third, until recently, it was held that a person non sana memoriæ, though afterwards restored to his right mind, should not be permitted to allege his own insanity in order to avoid his grant

or other agreement. This is the legal meaning of the familiar phrase, "a man shall not be allowed to stultify himself." Blackstone relates the progress of "this notion" (as he calls it) and refers to most of the ancient cases that support it; and they deserve attention as legal curiosities.' "This notion," however, except as it affects real actions, is now pretty thoroughly exploded, and the law restored to its original state; for in the reign of Edward the first, the adjudications of the English courts were not disfigured by the scholastic folly, which prevailed, on this point, during several subsequent reigns.

This doctrine was denied by Fitzherbert,' and was assailed with great force in the arguments of counsel in the case of Thompson v. Leach,' which was carried by writ of error from the court of common pleas to the king's bench, and thence to the house of lords. In the argument before the court of last resort, counsel said, ""T is a rule unaccountable that a man shall not be able to excuse himself by the visitation of heaven, when he may plead duress from men, to avoid his own act." And Wilmot, J., in delivering an opinion on a commission of errors, in 1762, used nearly the same language, and denied the rule that "a natural disability, which is the act of God, is no defence,” and declared that the reason given for it in the books, namely, "that a man cannot know what he did when he was mad," was wholly unintelligible; "for what inconsistency," he asks, "is there in saying, he does not know he ever did such an act, but if he did, he was mad when he did it ?"

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In Yates v. Boen, in debt on articles, non est factum was pleaded, and evidence received of the defendant's mental

1 2 Black. Comm. 295.

2 Nat. Brev. 202.

3 3 Mod. 296; 1 Show. 297; 2 Vent. 198; Show. P. C. 150.

4 Show. P. C. 154.

62 Strange, 1104.

5 Wilmot, 155, Evans v. Harrison.

incapacity. This was the decision of a single judge, at nisi prius, and has been overlooked by several writers, who have treated of this subject. It is now, however, recognized as sound law, and is introduced into the modern books.' There are other cases, in which the same doctrine has been held; and, recently, Littledale, J., 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." " The law has been held in the same way, by the court in Connecticut; 3 by the circuit court of the United States in the district of Connecticut, in the case of Owen v. Mann; and by the courts in New York and Massachusetts.5

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If, however, a lunatic contract for necessaries suitable for his state and degree, he will be held to pay for them; and, in an action to recover pay, his lunacy will not avail as a defence. The case, in which this point was decided, was that of an executed contract,—the defendant had enjoyed the use of the property. Chief justice Abbott distinguished between executed and executory contracts by such persons; but expressed no opinion as to the validity of the latter. The real ground of this determination was that of equity and justice. There had been no imposition, the defendant had received and used the plaintiff's property,—he was not under the legal custody of any other person, and, though he was insane, and therefore could not in strictness make a binding agreement, yet it was right that his property should

1 Bac. Abr. Obligation, D. 1, (Guillim's edition); 1 Chitty's Pleading, 470; 2 Stark. Ev. 479; 2 Sanders on Pl. & Ev. 184, (Am. ed.)

27 D. & R. 618; S. C. 5 B. & C. 170, Bagster v. Earl Portsmouth. 3 3 Day, 90, Webster v. Woodford.

4 September Term, 1808, cited in a note to Day's edition of Co. Litt. 247.

5 15 Johns. 503, Rice v. Peet; 5 Pick. 431, Mitchell v. Kingman. See, also, 1 Bland, 376, and 11 Pick. 305.

• Bagster v. Earl Portsmouth, 7 D. & R. 614; 5 B. & C. 170, S. C. ; Chitty on Contracts, 256.

be applied to his support.' It will be found, that there is a strong analogy between the decision in that case, and the law as applied to the agreements made by infants, who have not, in most instances, a legal capacity to contract.

The legal systems of every civilized community provide some means of protecting those, who are deficient in mental power, from the impositions of others, and from their own improvidence and fatuity. By the Roman law, a tutor was provided, without whose assent no act of theirs was binding. In England, the king is curator, and has the legal custody of idiots and lunatics, and exercises his superintendence through the lord chancellor. In the United States, a guardian is appointed, and the statutes of the different states make very different provisions. In some states, no contract of any kind, made by a person after he is put under guardianship, is of any validity, although he may not be wholly destitute of natural capacity.

The contracts of persons of weak understandings, though not non compotes mentis, are set aside in chancery, if deception and imposition be practised upon them. But this is rather on the ground of fraud than of mental incompetency, although lighter facts will avoid a contract with such persons than with those of common understanding; that is, an imposition, for which a man of ordinary intellect would be entitled to no redress, will induce a court of chancery to vacate an agreement made with a person of feeble mental powers, because the latter may be defrauded by artifices, against which common men would guard.3

By the common law, a deed of land, made by a person non compos, is voidable only, but not void; and, therefore,

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1 See 1 Siderfin, 112, where is cited Hill and Blackton's case, Trin. 15 Jac.

2 See Bac. Abr. Idiots and Lunatics; 1 Black. Comm. 315.

3 3 Woodeson, 453.

42 Black. Comm. 245; 1 J. J. Marshall, 245, Breckenridge v. Ormsby; 5 Pick. 217, Wait v. Maxwell.

the deed of such a person conveys a seizin. In some states of the union, the deeds of persons non compotes mentis, made after they are put under guardianship, are declared by statute to be utterly void.

As to real actions, it seems that a grantor cannot even yet, in England, maintain a suit to recover land conveyed by him while non compos mentis.'

Contracts made during a lucid interval are valid, though the party be insane before and after.*

3. DRUNKARDS.

It was formerly held, that an agreement, made by a party while absolutely drunk, should bind him in law; and that it should not be set aside in chancery, unless he were made drunk by the other party, or by his contrivance. If a positive fraud were practised on the party while drunk, the agreement would be vacated on that ground. But, on the principles of natural law, as expounded by the most approved writers, and on the principles of common law, as usually applied, such a degree of intoxication, as deprives a party of his reason, should avoid any engagement into which he may enter during his mental incompetency. "Yet the merriment of a cheerful cup," says Puffendorf, "which rather revives the spirits, than stupifies the reason, is no hindrance to the contracting of just obligations."

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Lord Ellenborough, at nisi prius, held, in two cases, that an agreement signed by a party while in a state of complete intoxication, was a nullity, as he "had no agreeing

1 See this point discussed, 1 Powell on Contracts, 9, 29; Stearns on Real Actions, 184, note.

* 1 Dow's Rep. 177; 4 Conn. 203.

3 1 Powell on Cont. 29; Newland on Cont. 365; Buller's N. P. 173; 1 Sanders on Pl. & Ev. 541 (Am. ed.)

4 Book iii., chap. 6, § 4. See also Vitriarii Institutiones, lib. ii. chap. 11, §§ 7, 8; Wade v. Colvert, 2 Rep. Const. Ct. (S. C.) 27; Burroughs v. Richman, 1 Green's (N. J.) Rep. 233; Arnold v. Hickman, 6 Munford, 15.