when he is able, the plaintiff must prove the defendant's ability to pay, or, at least, that ostensibly he is so; but he is not bound to prove that the payment can be made without inconvenience.1 The new promise must, in all cases, be shown to have been made prior to the commencement of the action.2 (a)

§ 368. Infancy no defence in action ex delicto. Infancy is no defence to an action ex delicto; but an action in that form cannot be maintained, where the foundation of it appears to have been a contract, which the infant has tortiously violated. Thus, if he hired a horse, which he injured by treating negligently, or by riding immoderately, the plaintiff cannot charge the infant in tort, by a mere change of the form of action, where he would not have been chargeable in assumpsit. To such an action, the plea of infancy in bar is held good.3 (6) But if the contract was wholly abandoned by the infant, as if he hire a horse to go to a certain place, and goes to a different place, or wantonly beats the animal to death, he is liable in trover or trespass. (c) On the other hand, if the action is brought in assumpsit, but the foundation is in tort, as for money which he has fraudulently embezzled, the plea of infancy is not a good bar. (d)

1 Thomson v. Lay, 4 Pick. 48; Cole v. Saxby, 3 Esp. 160. And see Davies v. Smith, 4 Esp. 36; Besford v. Saunders, 2 H. Bl. 116.

2 Thornton v. Illingworth, 2 B. & C. 824; s. c. 4 D. & R. 525.

3 Jennings v. Rundall, 8 T. R. 337.

4 Vasse v. Smith, 6 Cranch, 226; Campbell v. Stakes, 2 Wend. 137.

Bristow v. Eastman, 1 Esp. 172; Vasse v. Smith, 6 Cranch, 226. See Story on Contracts, § 45.

(a) If the contract be void as against the policy of the law, there can be no ratification. Embry v. Morrison, 7 Sneed (Tenn.), 304.

(b) So, an infant is liable to an action ex delicto for fraudulent representations as to his age in procuring a contract which he subsequently avoids by the defence of infancy. Fitts v. Hall, 9 N. H. 441; Eaton v. Hill, 50 N. H. 235. In Texas it seems that fraudulent representations as to age are a good reply to the plea of infancy. Carpenter v. Pridgen, 40 Tex. 32. An infant is liable in assumpsit for money stolen by him, or the proceeds of property stolen by him. Shaw v. Coffin, 58 Me. 254. But quære. See Merriam v. Cunningham, 11 Cush. (Mass.) 40; Price v. Hewett, 18 Eng. Law & Eq. 522, and n.

(c) Towne v. Wiley, 23 Vt. (8 Washb.) 355. See Eaton v. Hill, 50 N. H. 235, for some criticisms upon the cases before

cited in this and the preceding note, and important distinctions in the torts for which an infant may be held liable. See also Hall v. Corcoran, 107 Mass. 51.

(d) In an action against an infant on a promissory note given by an infant for a chattel which he had obtained by fraud, and which he refused to deliver on demand, the infant prevailed, on the plea of infancy. Subsequently an action of tort for the conversion of the chattel was brought against him, and he was held liable therein, he having sold the chattel before the demand was made upon him. Walker v. Davis, 1 Gray (Mass.), 506. A verbal contract with an infant for his services for three years, being void by the statute of frauds, is not even prima facie evidence of the value of the services in an action on a quantum meruit. Galvin v. Prentice, 45 N. Y. 162; Wm. Butcher Steel Works v. Atkinson, 68 Ill. 421.

INSANITY.

Whether

§ 369. Insanity no bar when contract is executed. lunacy, or insanity of mind, is in all cases a valid bar, per se, to an action on the contract of the party, has been much controverted, both in England and America. The rule that a man shall not be permitted to stultify himself is now entirely exploded; and the question is reduced to this, namely, whether a person non compos mentis can make any contract which shall bind him. This has led to a distinction, taken between contracts executed and contracts executory; and it seems now to be generally agreed, that the executed contract of such person is to be regarded very much like that of an infant; and that, therefore, when goods have been supplied to him which were necessaries, or were suitable to his station and employment, and which were furnished under circumstances evincing that no advantage of his mental infirmity was attempted to be taken, and which have been actually enjoyed by him, he is liable, in law as well as equity, for the value of the goods.1 (a) Thus, a person of unsound mind has been held liable

1 Chitty on Contr. 108-112; Story on Contr. §§ 23-25; Stock on Non Compotes Mentis, pp. 26-30, and cases there cited; Thompson v. Leach, 3 Mod. 310; Seaver v. Phelps, 11 Pick. 304; Neill v. Morley, 9 Ves. 478; Stiles v. West, cited 1 Sid. 112. A question has been made whether the deed of a person of unsound mind conveying land is void, or only voidable. It was held to be voidable only, and not void, in Allis v. Billings, 6 Met. 415. The question was very fully considered in Arnold v. Richmond Iron Works, 1 Gray, 437, and, in delivering the opinion of the court, Shaw, C. J., spoke as follows:

It

"The present case is so like the recent case of Allis v. Billings, 6 Met. 415, in all its essential features, that it seems hardly necessary to do more than cite that case. was there held, that when a deed conveying land had been duly signed, sealed, delivered, and acknowledged, and placed in a condition to be put on record, by one of unsound mind, and cash and notes had been given by the grantee in security and satisfaction for the price, such deed was voidable, and not void; and that if, afterwards, and after the grantor was restored to his right mind, he did acts deliberately, manifesting an intention to ratify and confirm the transaction of sale and conveyance, he could not afterwards avoid that deed by alleging that he was insane when he made it. Such a deed, to many purposes, is equivalent to a feoffment with livery of seisin ; and we believe it has long been held, by the rules of the common law, that such a feoffment would pass a seisin de facto and vest the estate in the feoffee, subject to be avoided by matter of record, entry, or by some of the modes allowed by law for avoiding and

(a) So where a note was discounted for a lunatic, without notice of the lunacy, the contract is executed by the bank, and

insanity is no defence. Lancaster Co. Bank v. Moore, 78 Penn. St. 407. But see Musselman v. Cravens, 47 Ind. 1.

in assumpsit for work and labor,1 and for carriages suitable to his rank and condition.2

annulling the effect of such a conveyance. To this extent, the rule would seem to be founded on the plainest principles of justice, as well as law. In such case, the conveyance of an estate by bargain and sale on the one side, and by the payment or contract for the payment on the other, constitutes one entire transaction, mutually conditional and dependent. It must be affirmed or avoided as a whole. It cannot be affirmed in part, so as to hold the price, and disaffirmed in part, so as to avoid the conveyance. Badger v. Phinney, 15 Mass. 359.

If, then, the unfortunate person of unsound mind, coming to the full possession of his mental faculties, desires to relieve himself from a conveyance made during his incapacity, he must restore the price, if paid, or surrender the contract for it, if unpaid. In short, he must place the grantee, in all respects as far as possible, in statu quo. To that extent the case of Allis v. Billings does go, and we think it is well sustained by the authorities cited. We say nothing here of a bond, covenant, or other instrument purely executory, where the obligation arises solely from the act of a disposing mind, binding a person to some obligation or duty, and under which no estate or property has passed or been transferred; nor if such a contract would be voidable, and not void, do we consider here what acts, either of record or in pais, would be sufficient, on the part of the party contracting, after being restored, to avoid or to confirm such contract. Such a case may depend upon its own peculiar circumstances, to be judged of as they arise. The case of Allis v. Billings is one where a party, restored to his right mind, having a full jus disponendi, and full capacity to judge and act in the conduct of his affairs, finding what had occurred whilst his mind was under a cloud, balancing the advantages to himself of reclaiming his land or holding the price, prefers the latter. By doing this, he necessarily affirms the deed by which he in terms alienated his land.

"In the very full argument offered by the counsel for the plaintiff in this case, it was suggested, rather than distinctly proposed, to the court, to revise the case relied on, on the ground that there were authorities, deserving of consideration, leading to a contrary result. Undoubtedly there have been various views taken of this difficult subject, and there may be some discrepancy in the cases, especially whilst the maxim prevailed, that no man could stultify himself, or, in other words, could plead his own insanity to avoid his acts and contracts, -a maxim founded mainly on considerations of policy, from the danger that men might feign past insanity, and be tempted to procure false testimony to establish it, in order to avoid and annul their solemn obligations and contracts. But on a re-examination of the authorities, we see nothing to raise a doubt that the law, as it now stands, is correctly declared in that case.

"It was urged that the terms 'void and voidable,' as applied to the deed of a person non compos, do not express the true distinction, but that there may be an intermediate class of deeds confirmable; that is, deeds made by one having no capacity to contract, and so void until confirmed by the party after being restored. To say nothing of the practical inconvenience of making the operation of a deed to transfer an estate depend on some act, done months, perhaps years, after it has been delivered and recorded, some acceptance of payment, or other act in pais, passing between the parties without record or other means of notoriety; it would afford no more means of security to the rights of the party under disability than the power of refusing to ratify and actually disaffirming the deed, when the powers of his mind and his disposing capacity are fully restored. We are therefore of opinion that the deed of the plaintiff, made whilst in an unsound state of mind, was voidable, and not absolutely void, and, as a necessary legal consequence, that it was capable of being ratified and confirmed by him, after his mind was restored.

"The acts necessary to be done, to affirm and ratify a prior voidable act, or to annul it and set it aside, may be various, according to the nature of the act to be thus affirmed or disaffirmed, and to the condition and capacity of the party doing the act. In Tucker v. Moreland, 10 Pet. 58, it was held, that, in the analogous case of an in

1 Brown v. Joddrell, 3 C. & P. 30.

2 Baxter v. Earl of Portsmouth, 5 B. & C. 170; s. c. 7 D. & R. 614; s. c. 2 C. & P. 178.

§ 370. Generally a bar, when contract is executory. On the other hand, insanity of mind is generally admitted, as a valid bar to an action upon an executory contract of the party;1 (a) though in England it has in some cases been held insufficient as a defence, per se, but admissible evidence to support a defence grounded upon undue advantage taken or fraud practised upon the party, by reason of his want of common discernment.2

§ 371. Proof of insanity. The state and condition of mind of the party is proved, like other facts, to the jury; and evidence of the state of his mind, both before and after the act done, is admissible. An inquisition, taken under a commission of lunacy,

fant, he might avoid his act, deed, or contract, by different means, according to the nature of the act or the circumstances of the case. One of the cases put is where an infant makes a lease: the receipt of rent, after he comes of age, is a ratification. Bac. Ab. Infancy and Age, I, 8.

"In the present case, after the plaintiff was restored to the full possession of his reason, he found that he had executed a conveyance of his estate, that the defendants were in possession under his deed; also, that he held certain notes for part of the purchase-money. His forbearing to enter, his giving no notice of his election to disaffirm the conveyance, would be negative acts, and perhaps equivocal; but his demanding and receiving payment of the notes was affirmative, significant, and decisive. It was inconsistent with any just purpose to disaffirm the conveyance. Payment and acceptance of the compensation are decisive of an election to affirm. Butler v. Hildreth, 5 Met. 49; Norton v. Norton, 5 Cush. 530."

1 Sentance v. Poole, 3 C. & P. 1; Stock on Non Compotes Mentis, p. 30; Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Chitty on Contracts, p. 112; Story on Contracts, §§ 23-25.

2 Ibid.; Dane v. Kirkwall, 8 C. & P. 679. There is a material difference between insanity and idiocy, in respect to the evidence, and its effect. Many acts of business may be done by a lunatic, and the lunacy not be detected; but it is scarcely possible to predicate the same of an idiot, or an imbecile person. Such acts, therefore, are strong evidence on an issue of idiocy, but not on an issue of insanity. Bannatyne v. Bannatyne, 16 Jur. 864; 14 Eng. Law & Eq. 581, 590.

3 Grant v. Thompson, 4 Conn. 203. Insanity is shown by the proof of acts, declarations, and conduct, inconsistent with the character and previous habits of the party. The opinions of the witnesses as to the sanity or insanity of the person are not admissible, unless they are medical men, or experts. McCurry v. Hooper, 12 Ala. 823. (b) Ante, vol. i. § 440.

(a) Musselman v. Cravens, 47 Ind. 1. A judgment recovered against a person admitted at the time to have been non compos mentis, and who had no guardian, will be reversed on a writ of error brought by his administrator after his decease, unless perhaps for necessaries. Leach v. Marsh, 47

Me. 548.

(b) Wyman v. Gould, 47 Me. 159. So held in Commonwealth v. Fairbanks, 2 Allen (Mass.), 511, though the opinion is based upon the witness's own knowledge of facts. But in Cram v. Cram, 33 Vt. 15, it is held that, when a person's mental capacity is in question, the opinion of a non-professional witness in relation thereto, derived from personal observation of

and conversation with such person, is admissible in evidence in connection with the facts upon which the opinion is based, and that non-experts may give their opinions, based upon observation as to the mental condition of a person, must now be considered as the doctrine supported by the great weight of authority and reason. See the very able and exhaustive opinion of Mr. Chief Justice Foster, in Hardy v. Merrill, 56 N. H. 227, overruling the prior decisions of that State to the contrary. See also Pidcock v. Potter, 68 Penn. St. 342; Beavan v. McDonnell, 26 Eng. L. & Eq. 540; ante, vol. i. §§ 440, 441; Dennis v. Weekes, 51 Ga. 24.

is admissible evidence, but not conclusive in the party's own favor.1 It has, however, been held conclusive against other persons, subsequently dealing with the lunatic, instead of dealing with his guardian, who seek collaterally to avoid the guardian's authority, by showing that the lunatic has been restored to his reason.2 Insanity, once proved to have existed, is presumed to continue, unless it was accidental and temporary in its nature; as, where it was occasioned by the violence of disease.3

§ 371 a. Insanity in civil cases. What constitutes insanity of mind is a question which has been very much discussed, especially of late years; and the opinions of learned judges seem at first view to be conflicting. But much of the apparent discrepancy may be reconciled, by adverting to the nature of the cases respectively in judgment. The degree of unsoundness or imbecility of mind sufficient to invalidate the acts of the party in some cases may not suffice in others. But in regard to insanity, where there is no frenzy or raving madness, the legal and true character of the disease is delusion, or, as the physicians express it, illusion or hallucination. And this insane delusion consists in a belief of facts which no rational person would believe. It is distinguished from moral insanity, which consists in the perversion or disordered state of the affections or moral powers of the mind, in contradistinction to the powers of the understanding or intellect. This latter state of the mind is held not sufficient to invalidate a will, unless it is accompanied by that delusion in matters of fact which is the test of legal insanity.5

§ 372. Insanity in criminal cases. In criminal cases, in order to absolve the party from guilt, a higher degree of insanity must be shown than would be sufficient to discharge him from the obligations of his contracts. In these cases, the rule of law is understood to be this: that "a man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish

1 Faulder v. Silk, 3 Campb. 126; Dane v. Kirkwall, 8 C. & P. 679.

2 Leonard v. Leonard, 14 Pick. 280; ante, vol. i. §§ 551, 556.

3 See ante, vol. i. § 42; Hix v. Whittemore, 4 Met. 545; 1 Collinson on Lunacy, 55; Shelford on Lunatics, 275; Swinburne on Wills, Part II. § iii. 5, 6, 7; 1 Hal. P. C. 30.

4 Dew v. Clark, 3 Addams, Eccl. 79.

5 Ibid.; Frere v. Peacocke, 1 Rob. Eccl. 442, 445. And see Pritchard on Insanity in Relation to Jurisprudence, pp. 16, 19, 30; Commonwealth v. Mosler, 4 Penn. St. 264. See further, as to monomania, ante, vol. i. § 365; Regina v. Hill, 15 Jur. 470; 5 Eng. Law & Eq. 547; s. c. 5 Cox, Cr. C. 259; Waring v. Waring, 12 Jur. Priv. C. 947; Best's Prin. of Ev. § 134.