§ 78. It was an old maxim of the common law, affirmed by Lord Coke, that " a man shall not be allowed to stultify himself."6 And although a different doctrine had been previously laid down by Fitzherbert,7 and affirmed by Britton and Bracton, irregular or improper, when considered in connection with the other parts of the direction to the jury. In my opinion it was right."

1 Ibid.; Baldwin v. Dunton, 40 III. 188 (1866); Clearwater v. Kimler, 43 111. 272 (1867); Sheldon v. Harding, 44 111. 68 (1867); Myatt v. Walker, ib. 485; Emery v. Hoyt, 46 111. 258 (1867).

2 Dane v. Kirkwall, 8 C. & P. 679. See Henderson v. McGregor, 30 Wis. 78 (1872).

3 1 Story, Eq. Jur. § 238; Gartside v. Isherwood, 1 Bro. C. C. 560, 561; 1 Fonbl. Eq. B. 1, ch. 2, § 3; 21 Am. Jur. 4; 3 Wooddeson's Lect. 453; M'Diarmid v. M'Diarmid, 3 Bligh (n. s.), 374; Dent v. Bennett, 7 Sim. 539; Dunnage v. White, 1 Wils. Ch. 67.

4 M'Adam v. Walker, 1 Dow, 177; Grant v. Thompson, 4 Conn. 208.

5 See 1 Story on Eq. Jur. § 224, etc, where the whole matter is thoroughly discussed. Lewis v. Pead, 1 Ves. Jr. 19; Farnam v. Brooks, 9 Pick. 212.

6 4 Co. 123; Co. Litt. 247 6.

7 Fitzherbert, Natura Brevium, 202.

1 Co. Litt. 247 a, b; Beverley's Case, 4 Co. 123, 124; 2 Black. Coram. 291, 292; 1 Fonbl. Eq. B. 1, ch. 2, § 1, 2, and note (k); Shelford on Lunatics, ch. 6, § 2, p. 255, 263; 1 Story, Eq. Jur. § 225.

2 1 Fonbl. Eq. B. 1, ch. 2, § 1, p. 41. See also Yates v. Boen, 2 Str. 1104; BullerN. P. 172.

3 Thompson v. Leach, 3 Mod. 301.

4 2 Pothier on Oblig. Evans's note, Appendix, No. 3, p. 24.

5 1 Story, Eq. Jur. § 225.

6 De Jure Belli, B. 2, ch. 11, § 5.

§ 79. The only rational interpretation that can be given to this maxim would seem to be in applying it only to cases where the lunatic sets up his lunacy as an excuse for acts done by him to the prejudice of others, when such acts will be of no injury to himself; but where his contracts enure to his own injury, he ought not to be bound thereby.

§ 80. The English law, although it has not as yet completely discarded this maxim, has greatly modified it in its operation; and although lunacy alone cannot be pleaded in England, as a perfect defence to a simple contract, yet it is admissible as stringent evidence to establish imposition.2 The contract with a lunatic or idiot stands, therefore, upon the same ground with that of a sane and intelligent person, with this modification, that acts and facts will afford an indication of fraud in the one case, when they would not in the other. Thus, where an action was brought for the use and occupation of a house, taken under a written agreement, at a stipulated rent, it was held, that it was not sufficient to show that the lessee was a lunatic, and that the house was unnecessary, in order to absolve her from responsibility, but that it must also be shown that the plaintiff knew this, and took advantage of her lunacy.3 Yet lunacy seems to be considered a good defence in England to a specialty made when the party was a lunatic.4 No suffi-

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

2 In Brown v. Jodrell, 3 C. & P. 30, lunacy was pleaded as a defence to an action of assumpsit for work and labor done. Lord Tenterden said: " I think that this defence cannot be allowed, and that no person can be suffered to stultify himself, and set up his own lunacy in his defence. If indeed it can be shown, that the defendant has been imposed upon by the plaintiff in consequence of his mental imbecility, it might be otherwise, and such a defence might be admitted." Sentance v. Poole, 3 C. & P. 1; Levy v. Baker, M. & M. 106, n.; Manby v. Scott, 1 Sid. 112; Baxter v. The Earl of Portsmouth, 5 B. & C. 170. In Faulder v. Silk, 3 Camp. 126, Lord Ellenborough thought, " that an inquisition of lunacy was by no means conclusive on the trial of that issue, but was admissible as evidence." See also Sergeson v. Sealey, 2 Atk. 412; Tarbuck v. Bispham, 2 M. & W. 2; Ball v. Mannin, 3 Bligh (n. s.), 1.

3 Dane v. Kirkwall, 8 C. & P. 679; Year-Book, 9 Henry VI. 6; Britton, tit. Dette, fol. 66.

4 Baxter v. The Earl of Portsmouth, 5 B. & C. 170; Chitty on Contracts, cient reason is, however, apparent for the difference of the rule relating to parol contracts and to specialties, since if the mental infirmity be so great in the one case as to invalidate contracts under seal (which may differ from a parol contract only in the fact of sealing and delivery), why is it not sufficient to annul a parol contract, which may be entered into with less deliberation, and affords a wider scope for surprise and imposition ?

§ 81. In America, the old maxim has been utterly discarded, as at variance with reason and justice, and the authorities fully sustain the more just and equitable doctrine, that either lunacy or idiocy nullifies a contract, and that it may be either specially pleaded or shown in evidence, under the general issue.1

§ 82. Where a contract has been executed, if it be for the procuring either of necessaries or of articles suited to the rank and station of the lunatic, and be entered into bond fide, a court of law will enforce it.2 The ground of this rule is, that since the lunatic has had the benefit of the articles, and no advantage has been taken of him, it is but just that he should pay for them, "Qui sentit comrnodum, sentire debet et onus." Or, as has been elsewhere stated, if a person of apparently sound mind, and not known to be otherwise, purchases property which is beneficial to him, by a contract otherwise fair and bond fide, and which has been fully completed, paid for, and enjoyed, and cannot be restored so as to put the parties in statu quo, such contract will not be afterwards set aside either by the lunatic or his representative, unless upon proof of fraud or undue imposition.1 Nor is this rule confined to executed contracts for necessaries, although it applies with peculiar force thereto, but governs generally all completely executed contracts for the purchase. of property, where the lunatic is not of an utterly unsound mind, the fact of lunacy is unknown, and no advantage has been taken, and where the subject-matter of the contract has been fully enjoyed and cannot be restored so as to put the parties in statu quo2 Indeed, be partially executed, it would be binding on the lunatic as far as it was executed completely, but not in respect to the part not executed, unless the contract were not susceptible of apportionment.1 In all cases where the circumstances under which a contract is made, are such as would, in the mind of a reasonable man, induce a belief in the insanity of the other party, the contract would be held to be invalid on the ground of fraud.