The law upon the subject has also been reviewed by the Court of Exchequer in the case of Molton v. Cam-roux (k). This was an action for money had and received, brought by the administration of an intestate, to recover from an annuity society the price paid by the intestate for annuities granted by the society. The ground was, that the intestate was not of sound mind when he paid the money. The elaborate judgment delivered by Pollock, C. B , will amply repay an attentive perusal. "As far *as we are aware," the Court said, "this is the first case in which it has been broadly contended that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and although perfectly fair and bond fide, reasonable, and without notice on the part of those who have dealt with the lunatic;" and the Court refused to a journey for pleasure out of the State without the sanction of his former guardian or of the courts or of his relations. . . . The plaintiff incurred the risk of being able to satisfy the jury that the charges were reasonable and proper. The fact that the former guardian had provided rooms and necessaries for the ward, was not material. ... It appears that he is capable of enjoying, to some extent, many pleasures and luxuries, and that he has preferences as the place of his residence and his associates. Humanity and his right to his own property require that he should not be restrained or thwarted in his preferences and enjoyments more than is necessary for his own welfare." Among the later American cases see Titcomb v. Vantyle, 84 111. 371; McCor-mick v. Tittler, 85 lb. 62; Willemin v. Dunn, 93 lb. 511; Hospital v. Fairbanks, 129 Mass. 78; Matthiessen R. Co. v. McMahon, 38 N. J. 537; Blakeley v. Blake-ley, 33 N. J. Eq. 502; Young v. Stevens, 48 N. II. 133; Ins. Co. v. Hunt, 79 N. Y. 541; Kneedler's Appeal, 92 Pa. St. 428; Wirebach v. Bank, 97 lb. 543; Ashcraft v. De Armand, 44 Iowa, 229; Burgess v. Pollock, 53 lb 273; Rusk v. Fenton, 14 Bush, 490; Northington, ex parte, 37 Ala. 496; Henry v. Fine, 23 Ark. 417; Henderson v. McGregor, 30 Wis. 78; Wilder v. Weakley, 34 Ind. 181.
(i) M. & M. (22 E. C. L. E.) 106, n.
(k) 2 Ex. 487.
Allow the money to be recovered back. The case was carried by a writ of error into the Court of Exchequer Chamber (l), and that Court laid down (affirming the judgment of the Court below), that when the lunatic's state of mind was unknown to the other contracting party, and no advantage was taken of him, and the contract was not merely executory, but executed in the whole or in part, and the parties cannot be restored to their original position, the contract is not void on account of lunacy. A subsequent case of Beavan v. M'Donnell (m) differed in some degree from the one last cited. The action was brought to recover a deposit paid on a contract for the purchase of real estate, the title of which the plaintiff was to accept unless he objected within a specified time. It was admitted upon the pleadings, that at the time the plaintiff entered into the contract he was a lunatic, and *therefore incapable of contracting, or of understanding the meaning of a contract, or of managing his affairs, and that the contract was of no use or benefit to him, but that his state was unknown to the defendant. The Court said that the contract was entered into by the defendant fairly and in good faith, and without knowledge of the lunacy; and being a transaction completely executed, so far as the deposit was concerned, the defendant had done all he ought to do to make it his own. The plaintiff had had all he bargained for-the power of buying an estate, and a title established in a given time, on payment of the residue of the purchase-money. The Court thought the case came within the principle upon which Molton v. Camroux was decided, and that it made no difference that it was admitted that the plaintiff was incapable of understanding the meaning of contracts; whereas in the former case it was not necessary to be inferred that he was incapable of knowing the nature of his acts. As a lunatic is liable upon such contracts entered into by himself, so he is liable for necessaries furnished to his wife (n), he having become lunatic since the marriage; for, by contracting the relation of marriage, a husband takes on himself the duty of supplying his wife with necessaries; and if he does not perform that duty, either through his *own fault or in consequence of a misfortune, such as lunacy, the wife has by reason of that relation an authority to procure them herself, and the husband is responsible for what is so supplied. But it would seem to be the better opinion that an executory contract entered into by a lunatic of non-sane mind at the time he entered into it, cannot be enforced against him ; sed quaere.1
(l) Molton v. Camroux, 4 Ex. 17; Campbell v. Hooper, 24 L. J. (Ch.) 644. (m) 23 L. J. (Ex.) 94; 9 Ex. 309, S. C. See 23 L. J. (Ex.) 326; 10 Ex. 184; Moss v. Tribe, 3 Fost. & Finl. 9.
(n) Read v. Legard, 6 Ex. 636.
1 In Wirebach v. First National Bank, 97 Pa. St. 543, Trunkey, J., laid down the rule very broadly. He said, " There can be no binding executory agreement where one of the parties is bereft of reason; a capacity to contract is absolutely necessary. An insane person is incapable of committing a crime or making a contract. The question now presented," he continued, "is: Will an action lie on the accommodation endorsement of a promissory note by a lunatic? . . . The holder of a madman's note stands in no better position than the payee. An accommodation maker or endorser, in fact, is a surety for the principal debtor, and where he is an infant or an insane person, he or his representatives may defend as in other forms of contract. We are not persuaded that commercial or public interests require an adjudication that a lunatic who signs a contract as surety, or as accommodation maker or en-dorser, is liable for the debt of another man." See also Beavan v. M'Donnell, 9 Exch. 309; Loomis v. Spencer, 2 Paige, 158; Skidmore v. Romaine, 2 Bradf. (N.Y.) 122.