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James Brown, 1839. 12mo, pp. 248. - - 388


I.—DIGEST of ENGL1sh CAses. . - - - - 389

II.-DIGEST of AMERICAN CASEs. - - - - 408

III.-MiscELLANeous Cases. - - - - - 449


Massachusetts. - - - - - - 450

Indiana. . . . . . . . . 453

Delaware. - - - - - - - 453

South Carolina. - - - - - - 454


1.—Pothier’s Treatise on the Contract of Sale. - 455

2.—Letters on the First Charter. . - - - 459

3.—Laws of Mississippi. . - - - - . 461


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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.


Persons mon 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 sande memoria, 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 !” " In Yates v. Boen," in debt on articles, non est factum was pleaded, and evidence received of the defendant's mental 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; "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.” 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

* Finch, 102. 103. WOL. xxi.-NO. XLI. 1

1 2 Black. Comm. 295. * Nat. Brev. 202. a 3 Mod. 296; 1 Show. 297; 2 Went. 198; Show. P. C. 150. * Show. P. C. 154. * Wilmot, 155, Evans v. Harrison.

• 2 Strange, 1104.

* 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.)

* 7 D. & R. 618; S.C. 5 B. & C. 170, Bagster v. Earl Portsmouth.

* 3 Day, 90, Webster v. Woodford.

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

* 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.

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