A person mentally incapable of entering into a contract cannot contract a valid marriage; but it must appear beyond question that the party was an absolute lunatic, and even in this case the contract is capable of ratification when the sanity of the party is restored. Fraud or coercion brought to bear upon a party of weak mind is sufficient ground for the rescission of a marriage in cases where the incapacity of the party is not, of itself, sufficient to induce the court to avoid the contract: Wharton & Stille's Med. Jur., §§ 17, 18, and cases cited.
As the law regarding the contracts of lunatics has exerienced some alteration, so also has the law regarding contracts entered into by the class of persons whom I shall next specify,-I mean persons deprived of the use of their ordinary understanding by intoxication. It has been always admitted that if one man, by contrivance and stratagem, reduced another to a state of inebrity, and induced him while in that state, to enter into a contract, it would be void upon the ordinary ground of fraud; for the liquor would be in such case an instrument used by the one party to assist him in his plot against the other (o).1 But it has been supposed that, where the drunkenness of the contracting party was occasioned, not by the fraud of the contractee,. but by his own folly, he could not in such a case set it up as a defence; since, by doing so, he would take advantage of his own wrong. You will see this view taken in Co. Litt. 247 a, and even so *late as Cory v. Cory (p). There are, however, several later cases, in which it seems to have been treated as erroneous. In Pitt v. Smith (q), issue had been joined; upon the question whether there was an agreement between the plaintiff and defendant for the sale of an estate. It was proved that in fact there was an agree-ment signed, but one of the parties when he signed it was intoxicated: Lord Ellenborough said: - "There was no agreement between the parties, if the defendant friends, they have a right to contract with the subjects of this country, and may sue on such contracts in the Courts of this country (v), whether the contract was made in England or abroad; with this distinction, that if it was made in England, it is expounded according to the law of England ;1 if abroad, according to the law of the country where it was made (x). But, *whether it was made abroad or in England, the person who sues on it here must take the remedy here as he finds it, although, perhaps, abroad there might have been a more advantageous one. Thus, for instance, to an action on a bill of exchange, the French period of limitation is five years, ours is six; now, if an action be brought here on a French bill, the courts here will not adopt the French period of limitation, but our own, and so the payee may recover here at any time within six years, though in France, where the bill was made, he must have brought his action within five; the reason for which is, that the period of limitation within which a remedy is to be pursued is part and parcel of the remedy itself, and, though a
(0) Gregory v. Fraser, 3 Camp. 454; Brandon v. Old, 3 Car. & P. (14 E. C. L. R.) 440. (p) 1 Ves. 19. (q) 3 Camp. 33.
1 Hotchkiss v. Fortson, 7 Yerg. 67; Harvey v. Pecks, 1 Munf. 518.-R.
25 385 was intoxicated in the manner supposed, when he signed this paper. He had not an agreeing mind. Intoxication is good evidence upon a plea of non est factum to a deed, of non concessit to a grant, or non assumpsit to a promise;" and he directed a nonsuit, which the full Court afterwards refused to set aside. In Fenton v. Holloway (r) Lord Ellenborough again ruled in the same manner (s).1 And it may be considered as now contract is interpreted by the law of the country where it is made, the remedy must be pursued as it exists in the country where the suit is brought (y).
(r) 1 Stark. (2 E. C. L. E.) 126.
(s) See sentance v. Poole, 3 Car. & P. (14 E. C. L. E.) 1; Cooke v. Clay-worth, 18 Ves. 12.
1 In Gore v. Gibson, 13 M. & W. 625, Pollock, C. B., referred to the conclusion drawn from the authorities by Chancellor Kent, in his Commentaries (vol. ii. p. 451), viz.: that no contract made by a person in that state, when he does not know the consequences of his acts, is binding upon him; and added, that it seemed to be in accordance with reason and justice. It is immaterial, moreover, whether the drunkenness, if carried to that extent, were voluntary, or the result of design in the other party : Barrett v. Buxton, 2 Aik. 167; Wigglesworth v. Steers 1 Hen. & Munf. 70; Prentice v. Achorn, 2 Paige, 30; Cooke v. Clayworth, 18 Ves. Jr. 15. And on the other hand, it is equally well settled, that mere intoxication, unless carried so far as to benumb the understanding, will not of itself constitute a defence to the performance of a contract, or afford a ground for its rescission if executed: Belcher v. Belcher, 10 Yerg. 121; Pittenger v. Pittenger, 3 N. J. Eq. 156; French v. French, 8 Ohio, 214; Jenners v. Howard, 6 Blackf. 240. "Whether the intoxication was so complete as to destroy " the agreeing mind," is, of course, a question for the jury : Burroughs v. Richman, 13 N. J. 238. If, however, it were proved that advantage was taken of a person excited by drink, though not to such an extent as to impair all his reasoning faculties, it is apprehended that at law the case might be brought within the ground of fraud, although the contracting party might not have been directly incited to drink by the other; and it is well settled that equity will afford relief under such circumstances: Reynolds v. Waller, 1 Wash. 164; Crane v. Conklin, 1 N. J. Eq. 346; Hutchinson v. Tindall, 3 N. J. Eq. 357; Pittenger v Pittenger, lb. 156; Conant v. Jackson, 16 Vt. 335; Campbell v. Spencer, 2 Binn. 133; and so when the mind is enfeebled by habitual intoxication: Wilson v. Bigger, 7 W. & S. 124; Morrison v. M'Leod, 2 Dev. & Bat. Eq. 221. It is evident, however, that although one may, by reason of drunkenness, be incapable of contracting, yet his contract may be ratified by his retaining the subject of the contract when sober: Gore v. Gibson, supra.-r.