225. Capacity to Contract.-Here, as in the case of wills, the same rules are binding as those which were laid down in reference to crime and responsibility. Law has to do with conduct. With thought it does not meddle, except as thought manifests itself in act. It is with the actions of men it has to do. But in dealing with the actions of men, it must make direct appeals to thought. It influences men through their thought. Now, in every relation there are two kinds of thought which result in producing conduct, and the existence of which the law must recognize. There is thought passing into volition, which the law, by supplying motives to, can effect, and there is thought which passes over into act which no law which can be laid down can influence. The former is healthy thought, or sanity; the latter is unhealthy thought, or insanity. Now, these remarks are true in relation to any kind of conduct, whether that conduct be an act which is contrary to law, the execution of a will, or the making of a bargain. If thought has passed over into act in defiance of volition, then the individual is not responsible for it, for it cannot be called his: the will must have no effect given to it, as it is not his will, and the bargain must not bind him, as he did not consent. Thus we see that the principles of the law are applicable throughout every department of jurisprudence. The question, then, which must be answered, with regard to any contract entered into by a person who is supposed to be insane, will be, Did he at the time the contract was made know what he was doing—that is, did he appreciate the consequences of his act, and was he able to give a rational consent? If that question can be answered in the affirmative, then it matters not whether he was insane or not: he must be held to have bound himself by the bargain. That many persons who suffer from mental disease are not in a position to transact any such business, it does not require much observation to prove. Although it seems that in old times the marriage of an idiot was valid,' it is not so now. Any one who is an idiot or a lunatic, whose insanity

! Rolls Abr. 357; Shipp Abr. tit. Idiot, 1 Sid. 112; Harg. Co. Litt. 80 a, note 1; 1 Bl. Comm. 438.

Morrison's Case, coram Delegates, 1745; 1 Hagg. 417; Cloudesley v. Evans. Prerog. 1763; Parker v. Parker, 1757, cited 1 Hagg. 417; Turner v. Turner, 1 Hagg. 414; Browning v. Reane, 2 Phill. 69.

is of such a nature as to deprive him of all knowledge of the circumstances of the affairs connected with the transaction, is necessarily deprived of all the capacity which belongs to a sane man in relation to contract. The act must be intelligently done, and the intelligence is to be judged of in relation to the experience which we have of the shrewdness and sense which men ordinarily bring to bear upon their business doings. Here capacity is no more to be judged of by mere illiterateness, nor inferiority of intellectual power than in relation to wills. The policy of the law is to make contracts as free as possible, and to make the execution of wills as easy as it may be. The latter tends to the encouragement of prudence, of self-restraint, and to the accumulation of capital— which, in a politico-economical point of view, is one of the greatest benefactions which a private individual can do to the community,' for even the miser, if he puts his money out at usance, is doing an inestimable service to his kind. The latter tends to the more rapid distribution of the products of nature and industry, to the encouragement of production, of manufacture, and cultivation, and to the wide-spread material prosperity of mankind. To effect this purpose, law must not put unnecessary restrictions upon the transactions of men, and must yet protect those who are unable to bring intelligence to bear upon their affiairs, from the rapacity and fraud of the covetous and dishonest. The rule that it is only such a state of mental disease as incapacitates the individual from forming an intelligent, although it need not be a far-seeing or clever, idea of the consequences of his act, and such a condition of the active or doing faculties of his mind as to be able to intend to do what is actually the object of the contract, seems well fitted to effect this object. This is indeed the rule of law as gathered from the cases which have been decided in this country' and in America.3

'Mills' Political Economy, Book I., Chap. IV.; Scrope's Political Economy, Chap. VII., 2d ed. *Ball v. Mannin, 3 Bligh N. S. 1; Daue v. Kirkwall, 8 Car. P. 679; Sentance v. Pool, 3 Car. & P. 1; Dunnage v. White, 1 Wils. C. C. R. 67; Hall v. Warren, 9 Ves. Jr. 605. Lewis v. Baird, 3 McLean, 56; Hovey v. Chase, 52 Me. 305; Baldwin v. Dunton, 40 III, 188; Clearwater v. Kimber, 43 Ill, 278.

226. Capacity to Contract in relation to Delusion.Here again our task is only one of reiteration. The principles of the law have already been sufficiently explained with reference to the right to do the acts of citizenship, which, as we have seen, accompany the ability to do them. Of course, this test of ability is only to be a rough one. The law does not exist to rectify mistakes: it cannot protect ordinary men from the effects of imprudence, rashness, want of skill or experience; and if, on account of any of those ordinary disabilities of a very large number of men and women, a disadvantageous bargain is made, the law does not set it to rights. Men are moulded through their faults, and all experience has to be paid for. But where fraud is proved, or where real incapacity, not simply of experience, but of nature, is apparent, law does interfere to protect the individual. Now, incapacity may exist in relation to one subject or one person. A man may have a delusion that a piece of property which really belongs to him is not his, and that even if he gets an "old song" for it, he is the winner, as he parts with nothing. This delusion, then, would affect a contract for the conveyance of the estate in question, and the law would hold the contract void upon proof of the delusion, although the individual who labored under it might be sane in relation to every other subject, and able to make hard bargains in relation to cotton or corn. The rule, then, in relation to contracts entered into by persons who labor under delusional insanity of any kind is the same as that which applies to wills. Of course, great care is always to be taken in cases in which a morbid belief is proved to exist. It is necessary to have it proved beyond doubt that the delusion is a limited one, and that it does not affect the whole scope of the individual's active thought. Of course, in the first instance, every man is to be presumed sane,2 and it rests with those who would avoid the contract to show that the delusion or hallucination existed at the time the contract was entered

Attorney General v, Parnther, 3 Bro. Ch. 433; Staples v. Wellington, 58 Me. 453; Emery v. Hoyt, 46 Ill. 258; Dennett v. Dennett, 44 N. H. 531; Rodman v, Zilley, 1 Saxt. Ch. 320; Atkinson v. Medford; 46 Me. 510. See also Thomson v. Leech, 3 Salk. 301.

* See Sutton v. Sadler, 3 C. B.. N. S. 87; 26 L. J. C. P. 284; Symes v. Green. 1 S. & T. 401.

into.' Insanity which comes on after the contract has been entered into, is no bar to its execution.2

27. Distinction between Executed and Executory Contracts by the Insane.-One thing is to be borne in mind in this connection, and that is that there are two parties to a contract, and that each of these has an interest in the bargain, and the interest of the sane party to the transaction is as much an object of the law's protection as the interest of the insane. It is on this ground that it is necessary to distinguish between these two classes of contracts. An executed contract is one the object of which is performed; an executory contract is one in which a party binds himself to do or not to do a particular thing. In reference to an executory contract, it may be remarked that the law is unwilling to lend its aid to carry it into effect against an insane person who was known to be such by the other contractee, except where such contract was for the supply of necessaries. Yet where the incapacity was unknown to the creditor, and no advantage of any existing weakness was taken advantage of by him, this rule would not be strictly adhered to, especially if it has been partly executed. "Where a person," says Pollock, C. B.,“ "apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic or by those who represent him." This, then, shows how the law protects the interests of those who may contract with an insane person in ignorance of his incapacity. Where it is executed under

Staples v. Wellington, 58 Me. 453.

La Rue v. Gilkyson, 4 Barr. 375; Beals v. See, 10 Barr. 60; Parker v. Davis, 8 Jones N. C. 460; Yates v. Boen, 2 Str. 1104; Baxter v. Portsmouth, 5 B. & C. 171; Affleck v. Affleck, 3 Sm. & G. 394.

Fletcher v. Peck, 1 Powell, Contracts, p. 234.

41 Powell, 235.

5 See Addison on Contracts, p. 873; Chitty on Contracts, 112; Story on Contr., vol. 1, 27; Skidmore v. Romaine, 2 Bradf. 122.

Molton v. Camroux, 4 Exch. 17.

2 [7]

these circumstances, it will not be rescinded unless it can be done without injury to the parties, or, in other words, unless such an action will have the effect of placing the parties in statu quo. In the case from which the above quotation was made, the right of a lunatic or his representatives to rescind an executed contract entered into by him, such contract, not being for necessaries, was called in question. A lunatic had purchased certain annuities of a life assurance company, and had paid the consideration money and a premium in respect thereof. After his death, an action was brought for the recovery of the moneys paid by him by his administratrix, under the following state of facts as found by special verdict. At the time the annuities were granted, and payment of the consideration money made, the intestate was a lunatic and of unsound mind, so as to be incompetent to manage his affairs; bnt of this the assurance company had not at that time any kuowledge. The purchases of the annuities took place in the ordinary course of business: they were fair and bona fide transactions, the grantee appearing to the assurance company to be of sound mind, although he was, in fact, a lunatic. The question, therefore, reserved by the special verdict was, whether the mere fact of unsoundness of mind, not apparent at the the time of the transaction in question, was sufficient to vacate the act, albeit executed by the grantee by payment of the consideration money, and intended bona fide to be executed by the grantor by payment of the annuity. On deciding the question on appeal, the Court of Exchequer Chamber made the following remarks: "The old doctrine was that a man could not set up his own lunacy, though such as that he did not know what he was about in contracting. The same doctrine was applied to drunkenness. It is true that there are some exceptions to the old authorities, and the doctrine is not laid down uniformly with perfect distinctness; but, in general, it was as above stated. Modern cases have

4

As to American law, see Beals v. See, 10 Barr. 56; Desilver's Est. 5 Rawle, 11; B.nsell r. Chancellor, 5 Wharton, 37; Kindall v. May, 10 Allen, 59; Beller v. Jones, 22 Ark. 92; Henry v. Fine, 23 Ark. 417; Carr v. Holliday, 5 Ired. Eq. 167; Northington Ex parte, 37 Ala. 496.

Molton v. Camroux, 4 Exch. 17; 12 Jur. 800.

34 Exch. p. 19.

* See Beverley's Case, 4 Rep. 123 b, Co. Litt. 247 b.