Pursuing the inquiry upon which I entered in the last Lecture with regard to the competency of the parties to Contracts, and having disposed of the cases of Infancy and Coverture, the next in order is that of persons of non-sane mind, whose disability arises, not as in the two former cases, from a positive rule of law, but from the very nature of their disorder itself.

In the earliest ages of our law, the rule which common sense dictates on this subject appears to have prevailed, namely, that a person deprived of the use of that reason which is the instrument, if I may so say, with which men contract, shall not be bound, to his own injury, by contracts made while in such a situation.1 Thus, in Fitzherbert's Natura Brevium, 202, it is laid down, that a person who had enfeoffed another of his land while non compos might, on recovering his intellect, avoid the feoffment. But soon afterwards a doctrine was established *of the most absurd description which it was possible for the ingenuity, even of an ancient lawyer, to have devised. It was admitted that the acts and contracts of a lunatic could not be looked upon as valid as far as they affected other persons, but it was said that they should bind the lunatic himself, after he had recovered the use of his reason; "for," said the old lawyers, "a man cannot remember what he did when he was out of his mind, and consequently cannot recollect whether he did this or that particular act, or entered into this or that particular contract." And they actually carried this so far, that it became a maxim that a man should not be heard to stultify himself, and it is laid down as such in the 405th and 406th sections of Littleton, and in Stroud v. Marshall (a), where the opinion of Fitzherbert to the contrary, in his Natura Brevium, was overruled.

1 Mitchell v. Kingman, 5 Pick. 431; Rice v. Peet, 15 Johns. 503; Grant v. Thompson, 4 Conn. 203; 1 Story's Eq. Jur. 225.-R.

However, in more modern times, the common sense of the Courts began to be shocked by this doctrine, and Sir William Blackstone, in his Commentaries {b), argues with great force of reasoning against it. In the later cases of Yates v. Boen (c) and Faulder v. Silk (d), it seems to have been discarded; and there is no doubt now that the lunacy of one of the contracting parties may be shown by himself if sued upon a contract entered into while *he was in that condition. However, it would not be for the lunatic's own benefit to prohibit him absolutely from binding himself by any contract whatever. Such a prohibition might prevent him from obtaining credit for the ordinary necessaries of life; and there are modern cases in which contracts evidently of a fair and reasonable description entered into with a lunatic have been held binding on him, and have been enforced. In the case of Baxter v. Earl of Portsmouth (e), an action was brought against the Earl of Portsmouth for the hire of several carriages. It was proved that the carriages were suit(a) Cro. Eliz. 398. (b) 2 Bla. Com. 291. (c) Stra. 1104.

(d) 3 Camp. 126.

(e) 5B.&C. (11 E. C. L. R.) 170.

In a subsequent case of Brown v. Jodrell (f), the lunatic was the chairman of a society called the Athe-naion, and he had concurred in ordering work and goods to be supplied to them; for these Lord Tenter den held that he might be sued by the person who had supplied them. From these decisions it is plain that a lunatic's contracts are binding in many instances; and some treatises suggest that he stands on the same footing with an infant, and is liable only for necessaries. But this is, I think, not quite so; nor would it be reasonable that it should be so; for, where a lunatic is permitted to go about and appear to the world as a person of sane mind, it would be very hard indeed to prevent persons who had supplied him with goods under that impression at a fair price, from recovering because the articles were not necessaries. And, in the case I have just cited, of Brown v. Jodrell, an infant could not, I think, have been held liable for goods supplied to the Athenaion. A later case in which the subject has been canvassed, is that of Tarbuck v. Bispham (g), in which one of the questions was, whether a lunatic laboured under the same incapacity to bind himself by stating an account as I have *already shown you that an infant does. The case went off upon a different point, but the Court said, that, had it become material they would have granted a rule for the purpose of considering it.

(f) M. & M. (22 E. C. L. R.) 105; 3 Car. & P. (14 E. C. L. R.) 30, S. C. Bee also Dane v. Kirkwall, 8 Car. & P. (34 E. C. L. R.) 679.

It seems clear that a lunatic is liable upon an executed contract for articles suitable to his degree, furnished by a person who did not know of his lunacy, and practised no imposition upon him.1 Where A.

(g) 2 M. & W. 2.

1 In the recent case of Molton v. Camroux, 2 Exch. 501, which was an action to recover money paid by a lunatic for the purchase of an annuity, the jury found that the transaction was a fair and business one, and made by the defendants in good faith, and in ignorance of the plaintiff's unsoundness, and the Court in giving judgment for the defendant, thus reviewed the cases:

"The plaintiff's counsel distinguished the cases of Brown v. Jodrell, 3 Car. & P. (14 E. C. L. E.) 30, and Baxter v. The Earl of Portsmouth, 2 C. & P. (12 E. C. L. R.) 178; 5 B. & C. (11 E. C. L. R.) 170, and other cases of that 6ort, on the ground that necessaries furnished to a lunatic were an exception to the general doctrine that he could not make a contract; and he cited the judgment of the Lord Chief Baron, in the case of Gore v. Gibson, as showing a distinction between express and implied contracts, and deciding that all express contracts were void, if the parties to them were incapable of making a contract. On the other hand, it was argued by the defendant's counsel, that there was a distinction between contracts executed and executory; that executory contracts could not be enforced, but that executed contracts could not be disturbed, if made in good faith and without notice of the incapacity; and he called our attention to this, that all the cases cited were cases where damages for the breach of an executory contract were in question, but that no case had vet decided, that an executed contract, if perfectly fair and bond fide, could be questioned on the ground of the unsoundness of mind of both parties; and he cited the case of Howard v. The Earl of Digby, 2 CI. & Fin. 634; Williams v. Wentworth, 5 Beav. 325; and Selby v. Jackson, 6 Beav. 192, to show advanced money on mortgage to B., a lunatic, but did not know B.'s state, and took no advantage of him, he that the House of Lords in the first case and Lord Langdale in the two last, had recognized the liability of lunatics or their estate, in respect of contracts bond fide acted upon. The case of Niell v. Morley, 9 Ves. Jr. 478, before Sir William Grant, to the same effect, had been cited before, by the counsel for the plaintiff.