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able commentator upon the law of nature and nations, that every true consent supposes three things: first a physical power, secondly a moral power, and thirdly a serious and free use of them.1 And Grotius has added that what is not done with a deliberate mind does not come under the class of perfect obligations.2 And hence it is that if consent is obtained by meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind. For although the law will not generally examine into the wisdom or prudence of men in disposing of their property or in binding themselves by contracts or by other acts, yet it will not suffer them to be entrapped by the fraudulent contrivances, or cunning or deceitful management, of those who purposely mislead them.3


223. It is upon this general ground, that there is a want of rational and deliberate consent, that the contracts and other acts of idiots, lunatics, and other persons non compotes mentis, are generally deemed to be invalid in Courts of Equity.(b) Grotius has with great propriety insisted that it is a part of the law of nature; for, says he, the use of reason is the first requisite to constitute the obligation of a promise, which idiots, madmen, and infants are consequently incapable of making. Primum requiritur usus rationis; ideo, et furiosi, et amentis, et infantis nulla est promissio.' The civil law has emphatically adopted the same principle. Furiosus,' say the Institutes, nullum negotium gerere potest, quia non intelligit quod agit.' And afterwards in the same work, distinguishing infants from pupils (technically so called), the civil law proceeds to declare that infants are in the

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1 Puffendorf, Law of Nat. and Nations, Barbeyrac's note, 1, B. 3, ch. 6, § 3, cited 1 Fonbl. Eq. B. 1, ch. 2, § 1, note (a).

2 Grotius De Jure Belli et Pacis, Lib. 2, ch. 11, § 4.

See Fonbl. Eq. B. 1, ch. 2, § 3, notes (r), (u); Id. § 8.

4 De Jure Belli, Grotius, B. 2, ch. 11, § 5.

5 Inst. Lib. 3, tit. 20, § 8; Dig. Lib. 50, tit. 17, 1. 5, 1. 40.

(a) See Waring v. Waring, 12 Jur. 947; s. c. 6 Moore, P. C. 341; Creagh v. Blood, 2 Jones & L. 509; Davis Machine Co. v. Barnard, 43 Mich. 379; Rogers v. Blackwell, 49 Mich. 192. The last case declares that the deed of an insane person is void, and not

merely voidable. But as to that see Carrier v. Sears, 4 Allen, 336; Allis Richmond Iron Works, 1 Gray, 434; v. Billings, 6 Met. 415; Arnold v. 2 Kent, 451; Ashcraft v. De Armond, 44 Iowa, 229; Riggan v. Green, 80 N. Car. 236.

like situation as madmen: Nam infans, et qui infantiæ proximus est, non multum a furioso distant; quia hujusmodi ætatis pupilli nullum habent intellectum.' 1

224. The doctrine laid down in the older writers upon the common law is not materially different. Bracton says: Furiosus autem stipulari non potest, nec aliquod negotium agere, quia non intelligit quid agit. Eodem modo nec infans, vel qui infanti proximus est, et qui multum a furioso non distat, nisi hoc fiat ad commodum suum et cum tutoris auctoritate.' And Fleta repeatedly uses language to the same effect.

225. Yet clear as this doctrine appears in common sense and common justice, it has met with a sturdy opposition from the common lawyers, who have insisted (as has been justly remarked), in defiance of natural justice and the universal practice of all the civilized nations in the world, that according to a known maxim of the common law no man of full age should be admitted to disable or stultify himself; and that a Court of Equity could not relieve against a maxim of the common law.5 And a distinction has been taken between the party himself and his privies in blood (heirs) and privies in representation (executors and administrators). For it has not been doubted that privies in blood and privies in representation might after the death of the insane party avoid his contract or other acts upon the ground that he was non compos mentis. How so absurd and mischievous a maxim could have found its way into any system of jurisprudence professing to act upon civilized beings, is a

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1 Inst. Lib. 3, tit. 20, § 10; Dig. Lib. 50, tit. 17, 1. 5, 1. 40; 1 Domat, B. 1, tit. 2, § 1, art. 11, 12. See Ersk. Inst. B. 1, tit. 7, § 51, p. 160; B. 3, tit. 1, § 15, p. 485.

2 Bracton, Lib. 3, ch. 2, § 8,

p. 100.

Fleta, Lib. 2, ch. 56, § 19; Id. Lib. 3, ch. 3, § 10; Beverley's Case, 4 Co. R. 126.

41 Fonbl. Eq. B. 1, ch. 2, § 1.

5 See Sugden on Powers, ch. 7, § 1. The best defence of the maxim which I have seen is in 3 Bac. Abridg. Idiots and Lunatics, F., where it is put upon the ground of public policy to favor alienations. Yet it seems wholly unsatisfactory in principle. Mr. Evans has exposed the absurdity of the maxim in a few striking remarks, in his note to Pothier on Oblig. vol. 2, App. No. 3, p. 28.

• Co. Litt. 247, a. b.; Beverley's Case, 4 Co. R. 123, 124; 2 Black. Comm. 291, 292; 1 Fonbl. Eq. B. 1, ch. 2, § 1, and note (h); Shelford on Lunatics, ch. 6, § 2, pp. 255, 263; Newland on Contracts, ch. 1, p. 19; Sugden on Pow. ers, ch. 7, § 1.

matter of wonder and humiliation.1 There have been many struggles against it by eminent lawyers in all ages of the common law; but it is perhaps somewhat difficult to resist the authorities which assert its establishment in the fundamentals of the common law,2 a circumstance which may well abate the boast, so often and so rashly made, that the common law is the perfection of human reason. Even the Courts of Equity in England have been so far regardful of the maxim that they have hesitated to retain a bill to examine the point of lunacy, although when a party has been found a lunatic under an inquisition they will entertain a bill by his committee or guardian to avoid all his acts from the time at which he has been found non compos. And formerly they were so scrupulous in adhering to the maxim, that cases have occurred in which a lunatic was not allowed to be a party to a bill to be relieved against an act done during

1 See Evans's note, 2 Pothier on Oblig. App. No. 3, p. 28.

23 Black. Comm. 291, 292; 1 Fonbl. Eq. B. 1, ch. 2, § 1, and note (d); Co. Litt. 247; Beverley's Case, 4 Co. R. 123; Yates v. Boen, 2 Str. R. 1104. See Shelford on Lunatics, ch. 6, § 2, p. 263; ch. 9, § 2, p. 407, &c.; Baxter v. Portsmouth, 7 Dowl. & Ryl. 618; s. c. 5 Barn. & Cressw. 170; Brown v. Joddrell, 3 Carr. & Payne, 30; Newland on Contracts, ch. 1, pp. 15 to 21. The subject is a good deal discussed by Mr. Justice Blackstone in his Commentaries, who does not attempt to disguise its gross injustice. (2 Black. Comm. 291, 292.) It is also fully discussed by Mr. Fonblanque, in his learned notes (1 Fonbl. Eq. B. 1, ch. 2, § 1, and notes (a) to (k); and by Lord Coke in his Commentary on Littleton (Co. Litt. 247, a. and b.), who adheres firmly to it (as we should expect) as a maxim of the Common Law. See also Beverley's Case (4 Co. R. 123, and Shelford on Lunatics, ch. 6, §§ 1, 2, pp. 242, 255; ch. 9, § 2, p. 407, &c.). In America this maxim has not been of universal adoption in the State Courts, if indeed it has ever been recognized as binding in any of the Courts of Common Law. See Somes v. Skinner, 16 Mass. R. 348; Webster v. Woodford, 3 Day, R. 90, 100; Mitchell v. Kingman, 5 Pick. R. 431. In modern times the English Courts of Law seem to be disposed, as far as possible, to escape from the maxim. Baxter v. Earl of Portsmouth, 5 Barn. & Cressw. 170; s. c. 7 Dowl. & Ryl. 614; Ball v. Mannin, 3 Bligh, R. (new series) 1. And even in England, although the party himself could not set aside his own act, yet the king, as having the general custody of idiots and lunatics, might, by his attorney-general, on a bill, set aside the same acts. See 1 Fonbl. Eq. B. 1, ch. 2, § 2; Co. Litt. 247; Newland on Contracts, ch. 1, pp. 15 to 21; Buller, N. Prius, 172.

81 Fonbl. Eq. B. 1, ch. 2, § 1, note (e); cites Tothill, R. 130. See also 1 Eq Abridg. 278, B. 1.

1 Fonbl. Eq. B. 1, ch. 2, § 1, note (e); 1 Eq. Abridg. 278, B. 2; Addison v Dawson, 2 Vern. 678; s. c. 1 Eq. Abridg. B. 4; Newland on Contracts, ch. 1, pp. 17 to 21.

his lunacy.1 But this rule is now with great propriety


226. The true and only rational exposition of the maxim (which has been adopted by Courts of Equity) is, that the maxim is to be understood of acts done by the lunatic in prejudice of others, as to which he shall not be permitted to excuse himself from civil responsibility on pretence of lunacy; and it is not to be understood of acts done to the prejudice of himself, for this can have no foundation in reason and natural justice.3

227. The ground upon which Courts of Equity now interfere to set aside the contracts and other acts, however solemn, of persons who are idiots, lunatics, and otherwise non compotes mentis, is fraud. Such persons being incapable in point of capacity to enter into any valid contract or to do any valid act, every person dealing with them, knowing their incapacity, is deemed to perpetrate a meditated fraud upon them and their rights. And surely if there be a single case in which all the ingredients proper

1 Attorney-General v. Parkhurst, 1 Cas. Ch, 112. See also Attorney-General v. Woolrich, 1 Cas. Ch. 153. Some acts of a lunatic are, by the Common Law, deemed voidable, and some void. Where the estate passes by his own hand, as by livery of seisin, there it is voidable; where by a deed, and the conveyance does not pass by his own hand, it is void. For example a surrender by deed of a non compos tenant for life will not bar a contingent remainder. 1 Fonbl. Eq. B. 1, ch. 2, § 1; 1 Eq. Abridg. 278, B. 3; Thompson v. Leach, 3 Mod. R. 301; 1 Ld. Ray. 313; 2 Salk. 427; Shower, Parl. Cas. 150; 3 Lev. R. 284. See Shelford on Lunatics, ch. 6, § 2, p. 255, &c.

2 See Ridler v. Ridler, 1 Eq. Abridg. 278, 279, B. 5; Addison v. Dawson, 2 Vern. R. 678; Clerk v. Clerk, 2 Vern. R. 412; Shelford on Lunatics, ch. 10, § 2, p. 415, &c.; Newland on Contracts, ch. 1, p. 17 to 19; 1 Fonbl. Eq. B. 1, ch. 2, § 2, and note (n).

81 Foubl. Eq. B. 1, ch. 2, § 2; Ridler v. Ridler, 1 Eq. Abridg. 279, B. 5; 3 Bac. Abridg. Idiots and Lunatics, C. F. In discussing the subject of idiots and lunatics and persons non compotes mentis in this place it is important to state that it is not intended to examine the nature and history of the jurisdiction of the Court of Chancery, or rather of the Chancellor personally, as the special delegate of the Crown over idiots, lunatics, and other persons non compotes generally. That is a subject of a widely different character from the one now before us; for here the Court of Chancery acts upon its general principles in setting aside the contracts and acts of such persons upon the ground of fraud, circumvention, imposition, and undue advantage taken of them. The jurisdiction of the Crown, as parens patriæ, to take care of idiots, lunatics, and other persons non compotes, is given at considerable length in Jeremy on Equity Jurisd. B. 1, ch. 4, p. 210; 2 Madd. Ch. Pr. ch. 4, p. 565; 2 Fonbl. Eq. Pt. 2, ch. 2, § 1, and note (a); 1 Fonbl. Eq. B. 1, ch. 2, § 2, and note (e). See also Beverley's case, 4 Co. R. 124; 2 Story on Equity Jurisp. §§ 1362 to 1365.

VOL. I. 16

to constitute a genuine fraud are to be found, it must be a case where these unfortunate persons are the victims of the cunning, the avarice, and corrupt influence of those who would make an inhuman profit from their calamities. Even Courts of Law now lend an indulgent ear to cases of defence against contracts of this nature, and if the fraud is made out will declare them invalid.1

228. But Courts of Equity deal with the subject upon the most enlightened principles, and watch with the most jealous care every attempt to deal with persons non compotes mentis. Whereever from the nature of the transaction there is not evidence of entire good faith (uberrimæ fidei), or the contract or other act is not seen to be just in itself or for the benefit of these persons, Courts of Equity will set it aside or make it subservient to their just rights and interests. Where indeed a contract is entered into with good faith and is for the benefit of such persons, such as for necessaries, there Courts of Equity will uphold it as well as Courts of Law. And so if a purchase is made in good faith without any knowledge of the incapacity, and no advantage has been taken of the party, Courts of Equity will not interfere to set aside the contract if injustice will thereby be done to the other side, and the parties cannot be placed in statu quo, or in the state in which they were before the purchase.3 (a)

229. And not only may contracts and deeds of a person non compos be thus set aside for fraud, but other instruments and acts of the most solemn nature, even of record, such as fines levied and recoveries suffered by such a person, may in effect be overthrown in equity, although held binding at law. For

1 Yates v. Boen, 2 Str. R. 1104; Baxter v. Earl of Portsmouth, 5 B. & Cressw. 170; s. c. 7 Dowl. & Ryland, 618; Faulder v. Silk, 3 Camp. R. 126; Brown v. Joddrell, 1 Mood. & Malk. 105; s. c. 3 Carr. & Payne, 30; Levy v. Barker, 1 Mood. & Malk. 106, and note (b).

2 Baxter v. Earl of Portsmouth, 5 B. & Cressw. 170; s. c. 7 Dow. & Ryl. R. 614, 618. See also ex parte Hall, 7 Ves. 264.

Niell v. Morley, 9 Ves. 478, 482; Sergeson v. Sealy, 2 Atk. 412.

* See Mansfield's case, 12 Co. R. 123, 124. But at law the king might avoid the fine or recovery by a scire facias during the lifetime of the idiot.

(a) Riggan v. Green, 80 N. Car. 236; Ashcraft v. De Armond, 44 Iowa, 229, and cases cited in note to § 223, to the effect that the contracts of insane persons are only voidable at most. But

see Rogers v. Blackwell, 49 Mich. 192.
As to the effect of lapse of time see
Stedman v. Hart, Kay, 607; Edson v.
Munsell, 10 Allen, 557; Allore v.
Jewell, 94 U. S. 506.

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