§ 86. We now come to the second subdivision of persons naturally incompetent to contract, namely, drunkards. It was formerly held, that in order to obtain relief from a contract entered into during intoxication, it was incumbent upon the party to show, that the intoxication was occasioned by the contrivance of the other party, which, as it would betoken fraud and imposition, would invalidate the agreement.1 But though a long-mooted question, it is now settled, that drunkenness is a complete defence to a contract. A distinction is, however, to be taken between executed contracts for necessaries of which the drunkard has received the benefit, and executory contracts, on his part, to do certain acts, - and also between express contracts requiring the distinct and expressed assent of both parties, and contracts implied from the circumstances of the case, in which the law creates the liability. Where, therefore, to an action of assumpsit by the indorsee against the indorser of a bill of exchange, the defendant pleaded, that when he indorsed the bill he was so intoxicated as not to be able to understand what he was about, it was held that the answer was sufficient, - for this is an express, as well as an executory contract.2 But where goods are supplied to a person during a fit of drunkenness, although on recovering his senses been restored to sanity, and where no act has been done to affirm the deed, and the grantor has never been in a condition capable of affirming it. Nor do they, considered in their relation to the facts of the case, affirm the doctrine, that, even upon restoration to sanity, restitution of the price is a con-dit ion precedent to the avoidance of the deed and recovery of the estate. If the grantor still has the notes, contract, or deed of land, and elects to retain them, it may be, he affirms bis grant. This is the extent to which the doctrine can be carried. If the remarks are susceptible of the broader construction contended for by the tenant, they do not, upon consideration, command our assent."

1 Co. Litt. 247; Heineccius, Elem. Jur. Nat. lib. 1, ch. 14, § 392; Cory v. Cory, 1 Ves. 19; Stockley v. Stockley, 1 Ves. & B. 30; 3 P. Williams, 130, note A.

2 Gore v. Gibson, 13 M. & W. 623; State Bank v. McCoy, 69 Penn. St. 204 (1871). See also Cooke v. Clayworth, 18 Ves. 15; Barrett v. Buxton, 2 Aik. 167.

§ 87. The law will not inquire into the cause, if satisfactory proof be given, that, at the time the contract was entered into, either party was incapacitated by intoxication from exercising his judgment.4 Such drunkenness must, however, be so excessive and absolute, as to suspend the reason for a time, and create impotence of mind,5 for " the merriment of a cheerful cup, which rather revives the spirits than stupefies the reason, is no hinderance to the contracting of just obligations."1 But if a person be reduced to such extreme debility by intoxication as to be unable to rise, or to sit up in his bed without support, or to bold a pen and make a mark, unless the pen and hand are held for him, his written contract will not be binding.2 Whether the intoxication were so great as to suspend the faculties and destroy the power of intelligent assent is a question for the jury.3 Nor does it make any difference, that the drunkenness was voluntary and wilful, for the legal theory is, that without the capacity of giving a deliberate assent, no contract can be made.4 Intoxication, however, only renders a contract voidable, and not void, so that the party intoxicated may, upon recovering his understanding, adopt it.1 The burden of proof is, of course, ordinarily on the drunkard to establish his incapacity; but if a contract be made with an habitual drunkard, after an inquest has pronounced him such, the burden is on the other party to show capacity.2

1 Gore v. Gibson, 13 M. & W. 623. In this case, Mr. Baron Alderson said that a party, "even in a state of complete drunkenness, may be liable, in cases where the contract is necessary for his preservation, as in the case of a supply of actual necessaries; so, also, where he keeps the goods when he is sober. The ground of his liability there is, that an implied contract to pay for the goods arises from his conduct when he is sober; although I doubt much whether, if he repudiated the contract when sober, any action could be maintained on it." The Lord Chief Baron also said: "So a tradesman, who supplies a drunken man with necessaries, may recover the price of them, if the party keep them when he becomes sober, although a count for goods bargained and sold would fail."See also Smith on Contracts, p. 233, and note by Symons; McCrillis v. Bartlett, 8 N. H. 569; Richardson v. Strong, 13 Ired. 106.

2 Ibid.; Pitt v. Smith, 3 Camp. 33; Fenton v. Hollo way, 1 Stark. 126; Cooke v. Clayworth, 18 Ves. 15; Drummond v. Hopper, 4 Harrington, 327; Prentice v. Achorn, 2 Paige, 30; Seymour v. Delancy, 3 Cow. 445; Wig-glesworth v. Steers, 1 Hen. & Munf. 70. 3 Ibid.

4 Lord Ellenborough, in Pitt v. Smith, 3 Camp. 33, says: "There was no agreement between the parties, if the defendant was intoxicated in the manner supposed, when he signed the paper. He had not an agreeing mind." Pothier on Obligations, pt. 1, art. 4, § 49; Fenton v. Holloway, 1 Stark. 126; Cooke v. Clayworth, 18 Ves. 15; Jenners v. Howard, 6 Blackf. 240.

5 Belcher v. Belcher, 10 Yerger, 121; Pittenger v. Pittenger, 2 Green, Ch. 156; French v. French, 8 Ohio, 214; Jenners v. Howard, 6 Blackf. 240; Cummings v. Henry, 10 Ind. 109 (1858); Caulkins v. Fry, 35 Conn. 170 (1868).

1 Pufendorf, Book iii. ch. 6, § 4; Cooke v. Clayworth, note to Pitt v. Smith, 3 Camp. 33; 18 Ves. 12; Bull. N. P. 172, citing the opinion of Holt, Chief Justice; Fenton v. Holloway, 1 Stark. 126, per Lord Ellenborough. This doctrine is also supported by the French, Dutch, and Scotch law. See Pothier on Obligations, pt. 1, ch. 1, § 1, art. 4, No. 49; 2 Evans's Pothier on Obligations, No. 3, p. 25; Institutes of Holland, p. 190. " An obligation granted by a person while he is in a state of absolute and total drunkenness, is ineffectual, because the grantor is incapable of consent, for the law has thought it equitable to protect those who have not the use of their reason (even though they should have lost it through their own folly) from the fraud and circumvention of others."Erskine's Institute of the Law of Scotland, etc, 418. See Gore v. Gibson, 13 M. & W. 623. In this case Baron Parke said: "Where the party, when he enters into the contract, is in such a state of drunkenness as not to know what he is doing, and particularly when it appears that this was known to the other party, the contract is void altogether, and he cannot be compelled to perform it. A person who takes an obligation from another under such circumstances is guilty of actual fraud. The modern decisions have qualified the old doctrine, that a man shall not be allowed to allege his own lunacy or intoxication; and total drunkenness is now held to be a defence." See also Mitchell v. Kingman, 5 Pick. 431; Webster v. Woodford, 3 Day, 90; Seaver v. Phelps, 11 Pick. 304; Rice v. Peet, 15 Johns. 503. Baron Parke, in Gore v. Gibson, says: "If the party was only partially drunk, so that he nevertheless knew what he was about, equity would not relieve; but here the plea states, that the defendant was so entirely deprived of the use of his reason that he could not comprehend the meaning or effect of the indorsement."

2 Wilson v. Bigger, 7 Watts & Serg. 111. See also Burroughs v. Rich-man, 1 Green, 233.

3 Burroughs u. Richman, 1 Green (N. J.), 233.

4 Cooke v. Clayworth, 18 Ves. 15.

§ 88. But although a person who is only excited by drink, and not to such an extent as to impair his reasoning faculties, cannot ordinarily avoid a contract on the ground of drunkenness, yet if it appear that he was incited thereto by the other party, and advantage was taken of his condition to urge and over-influence him, he would be entitled to relief in equity, on the ground of fraud practised on him to his injury.3

§ 89. We now come to the second class of cases, wherein there is a legal incapacity to contract, growing out of public policy and convenience; and this class we shall subdivide as follows, namely: 1st, Outlaws and persons attainted; 2d, Aliens; 3d, Infants; 4th, Married women; 5th, Slaves; 6th, Seamen.