136. But see Yates v. Boen, 2 Str. 1104; Faulder v. Silk, 3 Camp. 126; Sergeson v. Sealey, 2 Atk. 412, contra.
1 Mitchell v. Kingman, 5 Pick. 431; Seaver v. Phelps, 11 Pick. 304; Fitzgerald v. Reed, 9 Sm. & Marsh. 94; Rice v. Peet, 15 Johns. 503; Grant v. Thompson, 4 Conn. 203; Lang v. Whidden, 2 N. H. 435; Somes v. Skinner, 16 Mass. 348. It has been held, however, in Massachusetts, "that the deed of a person non compos, not under guardianship, conveyed a seisin, and was voidable only, but when under guardianship, was void." Wait v. Maxwell, 5 Pick. 217; Breckenridge v. Ormsby, 1 J. J. Marsh. 236.
2 Baxter v. Earl of Portsmouth, 2 C. & P. 178; 7 D. & R. 617. The defendant in this case, being a lunatic, hired and used certain carriages and harnesses, which were made to his order, and for which he agreed to pay a certain annual sum. The defendants were unaware of his insanity. Suit was instituted upon the contract, and it appeared in evidence that the defendant often used the carriages, and that they were suitable to his rank and situation. Abbott, Chief Justice, in his opinion said: "I was of opinion, at the trial, that the evidence produced in this case was not such as ought to defeat the plaintiff's right of recovering in the present action; considering that it was brought for the hire and use of carriages suited to the state and degree of the defendant, and by him actually ordered and enjoyed." Mc-Crillis v. Bartlett, 8 N. H. 569; Wentworth v. Tubb, 1I.& Col. C. C. 171; Molton v. Camroux, 12 Jur. 800; 2 Exch. 487.
1 Young v. Stevens, 48 N.H. 133 (1868).
2 Molton v. Camroux, 2 Exch. 487; 4 ib. 17. In this case the court said: "We are not disposed to lay down so general a proposition as that all executed contracts bondjide entered into, must be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude, that when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bondjide, 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 those who represent him; and this is the present case, for it is the purchase of an annuity which has ceased." In Beals v. See, 10 Barr, 60: " As to the rest of the case, the judge charged pretty much as the law is laid down in La Rue v. Gilkyson, 4 Barr, 375, in which it was said, that an insane man, like an infant, is liable on his executed contract for necessaries; and in which it was intimated, that he would be liable for merchandise innocently furnished to his order. Should he have made a wild and unthrifty purchase from a stranger unapprised of his infirmity, who is to bear the loss that must be incurred by one of the parties to it ? Not the vendor, who did nothing that any other man would not have done. As an insane man is civilly liable for his torts, he is liable to bear the consequences of his infirmity, as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it. A merchant, like any other man, may be mad without showing it; and, when such a man goes into the market, makes strange purchases, and anticipates extravagant profits, the rule has been pressed still further, and it has been held in a late case in the Court of Exchequer, that where a lunatic pays a deposit on the purchase of real estate to a vendor who has no knowledge of his lunacy, and the contract itself is fair, he cannot recover the deposit.1 Whether the doctrine to this what are those who deal with him to think ? To treat him as a madman, would exclude every speculator from the transactions of commerce. The epidemic of the country is, an impatient desire to become suddenly rich by desperate adventure, instead of awaiting the slow but sure approach of wealth from industry and small profits. Had there been fraud, or undue advantage taken, - but the judge declares that it was not imputed at the trial, and we are bound by his report, - the personal appearance and extravagant views of the intestate might have been left to the jury, as circumstances that ought to have put the defendants on their guard; but the prayers for direction seem to have been founded on a notion that, independent of every other consideration, a non compos mentis has not capacity either to make or to execute a contract, under any circumstances - a position altogether untenable. But the question of fair dealing seems not to be seriously agitated; and, if the plaintiff had relied on it, it would have been his business to go with it before the jury." Fitzhugh v. Wilcox, 12 Barb. 235; Price v. Berrington, 3 Mac. & G. 486; Dane v. Kirkwall, 8 C. & P. 679.
1 Beavan v. M'Donnell, 23 Law J. Rep. (n. s.) 94; 9 Exch. 309. In this case the reasoning of the court through Mr. Baron Parke was as follows: " The question is whether the present case falls within the principle of Molton v. Camroux, and we think that it does. It will be observed, that the replication in this case states an additional fact, the absence of which occasioned the remark by Mr. Justice Patteson, in giving the judgment of the Court of Error. , The special verdict in that case stated, that the intestate was, at the time of the contract, a lunatic, and of unsound mind, so as to be incapable to manage his affairs. Mr. Justice Patteson observed, ' that did not show such a state of mind in the grantee as to render him necessarily incapable of knowing the nature of his acts.' The replication supplies this supposed defect by averring that the plaintiff was a lunatic, and of unsound mind, and thereby incapable of contracting, or of understanding the meaning of contracts, and the statement is, in other respects, the same as that of the special verdict in this case. We think this makes no difference between the present case and that already decided, and we are further of opinion that this falls within the principle of that case. This action was not brought on an executory contract. The plaintiff is seeking to recover back a sum of money paid to the defendant on a contract, which the defendant has performed, and according to which he is entitled to retain it. The contract was entered into by the defendant, and the money received fairly and in good faith, and without knowledge of lunacy, and being a transaction completely executed, as far as the deposit is concerned, the defendant has done all he is bound to do to extent would be supported in this country seems doubtful,1 but it is clearly established that wherever a contract is made with a lunatic apparently sane, and without ingredients of fraud and overreaching, it cannot, when executed, be rescinded, unless the parties can be reinstated in their previous position.2 § 83. Where, however, the contract is executory, it could not be enforced against the lunatic.3 Yet if he had received any advance thereon, he would be bound, in rescinding his contract, to restore it to the other party.4 So, if the contract make that his own. The plaintiff has had all he bargained for, the power of buying the estate and a title established in a given time on payment of the residue of the purchase-money. The case is in substance the same as if the plaintiff had paid to the defendant a sum of money down, to abide the event of his performing a certain piece of work in a certain time; and if the defendant has done this stipulated work, the money is now his own, and the plaintiff cannot recover it back. Judgment for the defendant." This, however, would seem to be merely an executory contract, the payment of the deposit being merely a preliminary, and to secure the performance of the whole contract. The whole contract failing, it would seem that there was no consideration to support the payment of the deposit, except the delivery of the abstract of title by the vendor. And inasmuch as the deposit was £415, the consideration seems grossly beyond the worth of such acts. The consideration for the payment of the deposit being the complete contract, on the failure thereof, it would seem that so much of the deposit only should have been retained as would remunerate the vendor for his acts and trouble.