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it not appearing that he was in such a state as to occasion any immediate peril of life, either to himself or those about him (o). The bail, however, may have a writ of habeas corpus, directed to a keeper of a lunatic asylum, to bring up their principal, notwithstanding his lunacy, in order to surrender him in their discharge, to the warden or marshal of the prison (p). But where the return to a writ of latitat stated that the defendant was insane, and could not be removed without great danger, and continued so till the return of the writ, the Court of King's Bench refused an attachment against the sheriff, and left the party to his remedy by action (q).

If a non compos defendant be within the power of another person, who prevents access to him, a rule may be made, that service of the declaration, and also of the rule, upon such person, shall be good service on the non compos (r). Where the tenant of lands is a lunatic, a declaration in ejectment may be served on the person who has the care of the lunatic's person and the management of his affairs, although it does not appear that such person has been appointed a regular committee; and the Court will grant a rule nisi for judgment; and such rule may be to shew cause generally; and it is not necessary that it should be directed to any particular person (s).

When actions have been commenced against lunatics, so found by inquisition, the Lord Chancellor, on the petition of their committees, shewing that there are grounds for defending them, will refer it to the Master to inquire whether it will be proper to make any and what defence. In a case, where a traverse of the inquisition was pending, the Lord Chancellor declared that the committees were at liberty to defend an action against the lunatic; but that, during that time, he had no authority to make any order as to the costs (t).

(0) Cock v. Bell, 13 East, 355; and see 2 Chitty's Rep. 104.

(p) Pillop v. Sexton, 3 Bos. & Pull. 550.

(g) Cavenagh v. Collett, 4 Barn. & Ald. 279.

(r) Doe v. Roe d. Wright, Barnes,

190.

(s) Doe d. Lord Aylesbury v. Roe, 2 Chitty's R. 183.

(t) In re Sir G. O. P. Turner, 12 November, 1824.

It is laid down that if an idiot, after having been so found by office, be sued in any action upon a bond or writing executed by him, he cannot plead his idiocy, but a writ of supersedeas, suggesting the inquisition, shall be sent by the King to the Judges (u).

Generally speaking, Courts of equity will not interfere to restrain proceedings at law against lunatics, merely on the ground of their mental incapacity (v).

The mode in which persons of unsound mind may take advantage of the act for the relief of insolvent debtors is prescribed by 7 Geo. 4, c. 57, s. 73, continued by 2 Will. 4, c. 44 (w).

There are several old authorities (x) in the English law, in support of the maxim, that a person shall not be allowed to stultify himself, or, in other words, that he shall not be permitted to allege that his own acts are void, as having been performed by him whilst in a state of mental incapacity; but that advantage of such defect could be taken only by his representatives. The authorities upon this subject are conflicting; and it does not appear to be now clearly settled to what extent the above maxim prevails (y).

In the time of Edward I. non compos was a sufficient plea to avoid a man's own bond (2); and there is a writ in the Register (a), for the alienor himself to recover lands aliened by him during his insanity, dum fuit non compos mentis suæ ut dicit, &c. But, under Edward III., a scruple began to arise, whether a man should be permitted to blemish himself, by pleading his own insanity (b); and afterwards, a defendant in assize having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied,

(u) 4 Rep. 126 b; Show. P. C.

153.

(v) See post, p. 432.

(w) See Cooke's Practice of Insolvent Debtors Court, p. 143; ante, p. 84.

(x) Litt. s. 405; Co. Litt. 247. b.; 4 Rep. 123 b; Perk. s. 23. See ante, pp. 252-264.

(y) See 2 Bl. Comm. pp. 291, 292; 1 Powell on Contracts, 14, 15; 1 Fonbl. Tr. Eq. p. 48, n.

(z) Britton, Chap. xxviii. fol. 66. (a) Fol. 228. See also Memorand. Scacch. 22 Edw. 1, (prefixed to Maynard's Year Book, Edward 2,) fol. 23.

(b) 5 Edward 3, 70.

(ore tenus, as the manner then was,) that he was out of his mind when he gave it, the Court adjourned the assize, doubting, whether, as the plaintiff was sane both then and at the commencement of the suit, he should be permitted to plead an intermediate deprivation of reason; and the question was asked, how he came to remember the release, if out of his senses when he gave it (c).

Under Henry VI., this way of reasoning, (that a man shall not be allowed to disable himself, by pleading his own incapacity, because he cannot know what he did under such a situation,) was seriously adopted by the Judges in argument (d), upon a question, whether the heir was barred of right of entry by the feoffment of his insane ancestor. Fitzherbert (e) seems to have been of opinion, that a party might take advantage of his own insanity by plea or writ, to avoid his alienation when of unsound mind.

In an action of debt upon a bond, the defendant pleaded, that, at the time of the execution of it, he was de nonsane memory, to which the plaintiff demurred; and it was held, that the plea was bad, and that the opinion of Fitzherbert was not law (f). In an action upon the case, against an innkeeper, the defendant pleaded, that he was of nonsane memory, by sickness, when the plaintiff lodged with him; and it was adjudged, upon demurrer, for the latter, and that the defendant could not say that he was of nonsane memory, nor disable himself in this case, any more than in debt upon an obligation (g).

In a recent case (h), Mr. Justice Littledale is reported to have said "That there is no doubt that a deed, bond, or other specialty, may be avoided by a plea of lunacy, if at the time it was executed the contracting party was non compos mentis, but that such rule of law did not apply to the case of necessaries (i) supplied to a person who is, gene(c) 35 Assis. pl. 10. (d) 39 Henry 6, 42.

(e) See ante, p. 262.

(f) Stroud v. Marshall,

Eliz. 398.

(h) Bagster and Others, v. Earl of Portsmouth, 7 Dowl. & Ryl. 618. (i) In Manby v. Scott, 2 Sid. 112,

Cro. it was said, that an idiot, like an infant, was bound by a contract for

(g) Cross v. Andrews, Cro. Eliz. necessaries for his household. See 5

622; 1 Roll. Abr. 2, (D).

B. & C. 172; 7 D. & Ryl. 616.

rally speaking, of sound mind, but insane on some particular subject; and that an inquisition, finding a party of unsound mind, both before and at the time of the contract, would not make any difference." But, in another case, Lord Tenterden, C. J., is reported to have held, that no person can be suffered to stultify himself, and to set up his own lunacy as a defence, unless it can be shewn that he has been imposed upon, in consequence of his mental imbecility (k); and appears to have intimated, that, in the case of an unexecuted contract, imbecility of mind may be set up as a defence, although he did not decide that question either way (1).

In the Ecclesiastical Court a party may come forward and maintain his own past incapacity, to annul his marriage (m).

If, however, the plea of insanity will not avail, it seems clear, that lunacy may be given in evidence, to avoid a deed under the plea of non est factum (n). So also, intoxication, which is a species of madness, may be given in evidence by the defendant, upon a plea of non est factum to a deed, of non concessit to a grant, and of non assumpsit to a promise (o), although this is contrary to the law, as laid down by Lord Coke (p).

It has been decided, that insanity cannot be set up as a defence to an action brought to recover the value of goods which have been supplied suitable to the rank and condition of a person who was afterwards found to be of unsound mind, where the vendor had not notice of his imbecility, and where no fraud or imposition could be imputed to him. Thus, in an action of assumpsit, for goods sold and delivered to the defendant, who gave in evidence an inquisition taken under a commission of lunacy, by which the defendant was found of unsound mind at the time when

(k) Brown v. Joddrell, 3 Carr. & Payne, 30.

Faulder v. Silk, 3 Campb. 125.
(0) Cole v. Robins, Bull. N.P. 168;

(1) Bagster v. Earl of Portsmouth, Pitt v. Smith, 3 Campb. 33; and see 7 Dowl. & Ryl. 617. Cooke v. Clayworth, 18 Ves. 16; (m) 1 Hagg. Cons. Rep. 414. See Butler v. Mulvihill, 1 Bligh, 137. post, Chap. xi. See ante, p. 259.

(n) Yates v. Boen, 2 Str. 1104;

(p) Co. Litt. 247. a. ; 4 Rep. 123 b.

on

the goods were supplied, Lord Tenterden, C. J., held, that, as the articles were suitable to the station and fortune of the defendant, and as the plaintiffs, at the time of making the contracts, had no reason to suppose him of unsound mind, and could not be charged with practising any imposition upon him, they were entitled to recover; and, under that direction, the jury found a verdict for the plaintiffs, with leave for the defendant to move to enter a nonsuit. And, o a motion for a rule nisi for that purpose, his Lordship further observed, at the time when the orders were given and executed, the defendant was living with his family, and there was no reason to suppose that the plaintiffs knew of his insanity; and that the.case was very distinguishable from an attempt to enforce a contract not executed, or one made under circumstances which might have induced a reasonable person to suppose the defendant was of unsound mind. The latter would be cases of imposition; and his Lordship desired, that his judgment might not be taken to be that such contracts would bind, although he was not prepared to say, that they would not (q). And, in the same case, Mr. Justice Bayley observed-"Imposition and fraud, generally speaking, are grounds for vacating all contracts; and, with respect to the case of a person of unsound mind, if it can be proved that he has been defrauded, or an undue advantage taken of his imbecility, a Court of law will not enforce his contract. But where there is no imposition practised, and the goods supplied appear to be suitable for the condition and degree of the party receiving them, and which, in the ordinary habits of life, he would be likely to require, the mere fact of his being of unsound mind, and incapacitated from making his own contracts, will not deprive a tradesman of his right of suing in a Court of law for the value of the goods for which he has given credit. There may be great difficulty in predicating, on the first view, that a person is of unsound mind. It is well known that there are many individuals capable of speaking and acting most rationally, and who are of perfectly sound mind as to all the

(q) Baxter v. The Earl of Portsmouth, 5 Barn. & Cress. 170; S. C. 7 Dowl. & Ryl. 614.

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