could not avail himself of the plea of idiocy or lunacy, as a defence to any action, on the ground that no one should be permitted to stultify himself (b). But the law seems now to be different, and such a defence would always be a bar to any action, where it appears that the plaintiff has been guilty of fraud or imposition. In an action for goods sold and delivered, where the plaintiff was proved to have had knowledge of the vendee's insanity, and to have taken advantage of it, he was nonsuited (c). But idiots or lunatics, as much as Except for infants, may bind themselves by a contract for necessaries (d); and insanity is no defence where imposition cannot be imputed to the plaintiff (e). Even equity will not relieve merely on the ground that the vendee was of a weak mind, because the Court will not measure people's understandings and capacities (f); otherwise, if there have been fraud and imposition (g).

necessaries.

In a case (h) decided in K. B., the liability of a

(b) Beverley's case, 4 Co. Rep. 124; Stroud v. Marshall, Cro. Eliz. 398; Cross v. Andrews, Cro. Eliz. 622; Yates v. Boen, 2 Str. 1104.

(c) Levy v. Baker, 1 M. & Malk. 106 n. ; Sentance v. Poole, 3 C. & P. 1.

(d) Sid. 112; Holt. 357; Shelf. Lun. 410; Fonbl. Eq. 48. (e) Browne v. Joddrell, 3 C. & P. 30; S. C. 1 M. & Malk. 105; Niell v. Morley, 9 Ves. Jun. 478.

(f) Osmond v. Fitzroy, 3 P. Wms. 130.

(g) Bennett v. Vade, 2 Atk. 324; M'Diarmid v. M'Diarmid,

3 Bligh, N. S. 374; Fonbl. Eq. 64.

(h) Bagster and others v. Portsmouth (Earl), 7 D. & R. 614; S. C. 5 B. & C. 170; 2 C. & P. 178.

Bagster v.

mouth.

lunatic upon his contract was fully considered. Case of The plaintiffs had made carriages to the order of Lord Portsthe defendant (Lord Portsmouth), who was to have them for a certain sum per annum, the plaintiffs keeping them in repair. The defence was, that the defendant had been found and declared, by a commission of lunacy, to have been insane for several years prior to the contract; it was adjudged, nevertheless, that the plaintiffs should recover, as the carriages were suitable to the defendant's rank and fortune, and no fraud had been practised by the plaintiffs. Bayley J. said (i), " Imposition and fraud, generally speaking, are grounds for vacating all contracts; and, with respect to the case of a person of unsound mind, if it can be proved that he has been defrauded, or an undue advantage taken of his imbecility, a Court of law will not enforce the contract. But where there is no imposition practised, and the goods supplied appear to be suitable for the condition and degree of the party receiving them, and which in the ordinary habits of life he would be likely to require, I think the mere fact of his being of unsound mind, and incapacitated from making his own contracts, will not deprive a tradesman of his right of suing in a Court of law for the value of the goods for which he has given credit." It may, therefore, be laid down, that where either vendor or vendee is non

う

(i) 7 D. & R. 617.

compos mentis, a contract of sale will nevertheless be valid, if no imposition was practised on the part of the plaintiff, and if the defendant was clearly not prejudiced by his mental imbecility.

Persons at

tainted cannotcontract.

SECTION IV.-ATTAINDER.

Persons outlawed (a), or attainted, are incapable of contracting, because they can have no property in goods; since all personal property, accruing to them either before or after attainder, is vested in the crown without office found (b). The disability consequent upon attainder is removed, by a pardon under the great seal (c); or, by completion of the punishment which the offender has been adjudged to suffer (d). It was held by Holt, C. J., that a transfer of goods without valuable consideration, by one on the eve of trial for felony, was void (e). But the decision proceeded on the ground of fraud; for, if the sale

(a) Hage v. Skinner, 3 Lev. 29; Bac. Abr. Outlawry D.; Rex v. Cook, 1 M'Clel. & Y. 196.

(b) Bullock v. Dodds, 2 B. & A. 258: see Lambert v. Taylor, 6 D. & R. 188; 1 Lutw. 610; Co. Litt. 391, a. [Secus as to real property, before office found; Doe v. Pritchard, 5 B. & Ad. 765.]

(c) Bull v. Tilt, 1 B. & P. 199.

(d) 9 Geo. IV. c. 32. s. 3.

(e) Jones v. Ashurst, Skinn. 357.

had been bona fide, it would have been good, since the property is not forfeited until conviction (ƒ).

SECTION V.-ALIEN ENEMY.

Alien ene

sue upon

any contract.

An alien friend lies under no disability to con- my cannot tract or to maintain personal actions; because, it is said in Bacon's Abridgement, if he were incapacitated to merchandize, it might be as much to our prejudice as his own (a). But an alien enemy is utterly disabled from suing in England (b), whether the action be brought in his own name or in the name of another; therefore, even where the parties on the record are subjects of this realm, it is a good plea in bar, that the person interested (whose interest is alleged on the record) is an alien born, and the subject of a country at war with the King of Great Britain (c). The question always is, whether the plaintiff was alien enemy at the time

(f) Ib.; Fleetwood's case, 8 Rep. 171, a.— -Post.

(a) Bac. Abr. Alien D.; Dyer 2, b.; Tuerlcote v. Morison, Yelv. 198; S. C. Bulstr. 134; Openheimer v. Levy, 2 Str. 1082; Duckworth v. Tucker, 2 Taunt. 37, n.; Hoppen v. Leppet, Andr. 76.

(b) Co. Litt. 127, b.; Wells v. Williams, 1 Salk. 46; Bristow v. Towers, 6 T. R. 35. [It had been held, that an alien enemy might recover on a right claimed to be acquired by him in actual. war; Ricord v. Bettenham, 3 Burr. 1734; Cornu v. Blackburn, 2 Dougl. 641. But this doctrine is over-ruled; Anthon v. Fisher, 2 Dougl. 650. n.]

(c) Brandon v. Nesbitt, 6 T. R. 23.

of making the contract, and not whether he was so at the time only of the action brought. For, where a party is alien enemy when the contract is entered into, such contract is absolutely void, and cannot be enforced even on the return of peace (d); but where he becomes alien enemy subsequently, as there is nothing to render the contract itself illegal, the disability cannot be pleaded in perpetual bar, being only temporary and liable to be removed on the cessation of hostilities (e).

1. Who is held to lie under the disability (f).

A plaintiff may be incompetent to sue on the ground of being an alien enemy, though he be not a native of the hostile country; thus, where the consul of a neutral state is resident in an enemy's country and trades there, he cannot recover (g). So, even where the plaintiff is not alien born, as an English

(c) Brandon v. Curling, 4 East, 410; Willison v. Patteson, 7 Taunt. 439; S. C. 1 B. Moore, 133.

(e) Flindt v. Waters, 15 East, 260; Harman v. Kingston, 3 Campb. 153; Ex parte Boussmaker, 13 Ves. Jun. 71; De Tastet v. Taylor, 4 Taunt. 233. [Where the plaintiff becomes alien enemy subsequently to the commencement of the action, the disability ought to be pleaded in bar of the further maintaining the suit; Le Bret v. Papillon, 4 East, 502. However the Court would not consider themselves bound by an improper prayer of judgment.]

(f) It is the province of government to decide in what relation of peace or war any country stands in respect of this kingdom; Blackburne v. Thompson, 15 East, 81.-Post. Chap. iv. Sect. 3. (g) Albrecht v. Sussman, 2 Ves. & B. 323.