bill falls due, and that it falls due on the last day of grace." To the same effect are Osborn v. Moncure, Wend. 170; Wooley v. Clements, 11 Ala. 220; Donegan v. Wood, 49 Ala. 242; Wilson v. Senier, 14 Wis. 380; Bank v. Duvall, 7 Gill. & J. 78; Bank v. Barksdale, 36 Mo. 563; Bank v. Hodges, 9 Pick. 420; Renner v. Bank, 9 Wheat. 582; Mills v. Bank, 11 Wheat. 431; Adams v. Otterback, 15 How. 539: Dennie v. Walker, 7 N. H. 190; and other cases. The same proposition is asserted by the leading text-writers. Chit. Bills, 463; Story, Prom. Notes, § 220; Pars. Notes & B. 395, 401; 1 Daniel, Neg. Inst. §§ 598, 614; Tied. Com. Paper, $ 315; 3 Rand Com. Paper, §§ 1061, 1088; Edw. Bills & N. 511, 517; Benj. Chalm. Bills, pp. 30, 31, 178, arts. 20 178; Woods' Byles, Bills, 210, 211, note 6; 2 Amer & Eng. Enc. Law, p. 401, note 7. In Watkins v. Willis, 58 Tex. 521, it is said:

"Since the 11th of January, 1862, it has been, and is now, the law of this State that three days of grace are allowed on all negotiable promissory notes. Rev. St. art. 276. We regard this as a legislative announcement that three entire days are meant. Rev. St. art. 3138." The question of the day of presentment and protest was not involved in that case The point at issue was whether or not the suit was barred by limitation. That depended upon the further question whether or not the suit could have been brought on the last day of grace, and it was held that an action so brought would have been premature. Article 276 merely makes the rule of the common law as to days of grace applicable to all bills and notes "assignable or negotiable by law." There is not a word contained in it which indicates an intention to change the law merchant as to the day on which an instrument entitled to days of grace should be presented for payment and protest. By custom in the District of Columbia, the books at one time allowed until the fourth day after the nominal day of maturity before presentment and protest of bills of exchange. This was held in Renner v. Bank, in Mills v. Bank, and in Adams v. Otterbeck, supra, as contrary to the common-law rule, but good as a custom; and in all these cases the day of protest by the custom is spoken of as the "fourth" day of grace. Counsel for appellant cite the following cases in support of the contention that a protest on the last day of grace is premature: Moore v. Hollamans, 25 Tex. 82; Watkins v. Willis, 58 Tex. 523; Mill Co. v. Sinker, 74 Tex. 51, 11 S. W. Rep. 1056; and Cruger v. Lindheim (Tex. App.), 16 S. W. Rep. 420. In none of these cases except the last was the question of protest involved; and in that it was held that the note was entitled to three days of grace, and that because it was protested on the day it would have matured had no days of grace been allowed the protest was untimely and of no effect. It is merely decided in the other cases cited that a suit upon a promissory note before the expiration of the day it falls due is premature. In Watkins v. Willis and in Mill Co. v. Sinker the notes were entitled to three days of grace. It is apparent that the question decided in these cases is very different from that which is presented for our determination. Although it may be held that suit may not be brought upon a promissory note, whether with or without days of grace, until the day after it falls due, it does not follow that it may not be protested for non-payment on the day it falls due.

As to the day of the presentment and protest, there seems to be no difference of opinion. The authorities agree, so far as we have been able to discover, that the presentment for payment should be made on the last day of grace, and the protest should be then "noted." 2 Daniel, Neg. Inst. § 939. Notice of the

dishonor should be given to the indorser immediately (Id. § 970), or at least within a reasonable time; but the formal protest-the notarial act- it seems may be extended at any time (Id. § 940.) But upon the question when a suit may be brought upon a bill or note there is not only a conflict, but a diversity of opinion. In some of the cases it is decided that suit may be brought on the day the paper matures. The author last cited lays this down as the true rule, and the one supported by the weight of authority. In one case at least, the doctrine is broadly announced that, although demand has been made, and payment refused, on the last day of grace, suit on that day is premature. Osborn v. Moncure, supra. It has been held in other cases that suit cannot be brought until the expiration of the last day of grace, though it is probable that in most, if not all, of them there has been no demand on the day of maturity. Such are the cases in our own courts which have been previously cited.

WHEN AND UNDER WHAT CIRCUMSTANCES MAY AN INSANE PERSON BE HELD UPON HIS CONTRACTS?

In

"Dead men tell no tales." It might be added that dead men cannot contract. law death ends all and bars the jurisdiction of terrestrial courts. One cannot contract with a dead man because there must be two parties to every contract. You may say that there are two parties to the proposed contract, but that one of them is dead. Here then, we come to a difficulty. Why can you not contract with a dead man? Certainly not because he does not exist or cannot be identified, but because there is lacking this one all-important factor, the mind. If it were possible to imagine the existence of a mind in the abstract, this being the only vital element in the relations of man to man, there is no reason why that mind could not do anything not requiring physical strength. In other words, mind in the abstract could contract. On the other hand, as we have seen, the physical body of a dead man cannot contract-there is no mind. Again, present a physical Hercules, make him a perfect type of a physical man, breathe life, strength and courage into his being; and yet he is but "sounding brass" if he have no mind. Thus we may conclude that it is not physical but mental power that the law contemplates; that where there is mind, there is capacity, where there is no mind there is no capacity. Victor Hugo, in speaking of genius, exclaims "add anything if you can to a human mind." Indeed, if you would call

the left hand of progress force, you must call the right hand mind. But the very perfection and divinity of an endowment so grand and powerful, suggests the awful and disastrous result of subtracting from it any of its activities. Deprive the mind of the reasoning power. If you have a dead man, the case is easy-there is no mind; if you have a physical giant with positively no mind, he is, for the purposes of contracting, dead; if you have a perfect mind, there is no question of capacity; but between these extremes there is a mind deficient in some of its activities, and here it is that the principles of pyschology, medicine, and law overlap, conflict and clash. Were it not for the primitive state of of the science of medicine, and the absurd uncertainty and conflict of its results, this difficulty might be removed and the legal profession would only need to apply the law to the condition of the subject as found by the physician. Indeed, some of the leading lights of that profession have for years complained bitterly of the usurpation on the part of courts and juries, of the authority to decide whether or not a man be sane. There is little foundation to their plea, however, and the present state of affairs seems to argue that the medical profession is absolutely incompetent to settle the question, and that it is from necessity rather than from choice that courts and juries undertake the task. The very essence of a contract is the meeting of the minds of two contracting parties. In theory then, one absolutely insane, having no mind, cannot contract because of the impossibility of the meeting of the minds. Thus we may lay down the general proposition, that the contracts of insane persons are not binding on them. The first apparent exception to this rule is, that an insane person is liable for necessaries furnished him.1 This, however, is only an apparent exception, for the contract on which the insane person is held in this case, is not his own contract, but a contract created by law, and assent is not a necessary element in such a contract. The theory is, that insane persons might often be allowed to suffer for necessaries if the law did not give them this protection. Necessaries are those things which

1 Baxter v. Portsmouth, 5 B. & C. 170; La Rue v. Gelkyson, 2 Pa. St. 375.

2 Bishop on Contracts, Art. 200.

are proper to one's station in life. If an insane person has lucid intervals, and during a lucid interval makes a contract, it is binding,1 for there is in that event a meeting of the minds. Again, if an insane person makes a contract and ratify it during a lucid interval, or after permanently recovering sanity, it is binding upon him."

We have gone far enough now to venture the statement, that insanity in law is regarded either as a mental unsoundness, or a total lack of mental capacity. Cases of the latter class rarely arise. According to the theory we have adopted, the contracts of those void of mental capacity are absolutely void. Most of the cases hold, however, that they can be avoided only by the insane person and that the other party will not be allowed to plead the insanity in order to avoid his contract. It is not, however, because the contract is valid, but because the other party is deemed to be guilty of fraud and is estopped from setting up his own fraudulent act as a defense.. Partial insanity will not vitiate a contract unless it be an insanity upon the particular subject of the contract and unless the contract is really the result of the insanity. The contract of a man, absolutely insane on one subject, may be perfectly good if it is not on the particular subject on which he is insane. "These propositions all seem reasonable and simple, but there is a practical difficulty arising from the fact that it is often impossible to detect mental unsoundness. In fact, it is argued by many eminent authorities that all men are more or less insane. The poet when he sings:

"Great men to madness, sure are near allied, And thin partitions do their bounds divide." seems to intimate that insanity is in some sense akin to genius. It is not to be presumed that ordinary business men are experts on insanity. In these days of commercial war, when the nervous tension is at the highest and sane men are driving mad bargains, it must be confessed that it is a harsh law that would hold the business world to know whether a man be sane or insane. Supposing, now, that the man drives a good bargain 3 Baxter v. Portsmouth, 5 B. & C. 170.

4 King v. Robinson, 33 Me. 114; Lee v. Lee, 17 Am. Dec. 722.

5 Have v. Have, 99 Mass. 98.

6 Allen v. Berryhill, 27 Ia. 534; Hovey v. Hobson, 55

Me. 256.

7 Searle v. Galbraith, 73 Ill. 269.

and acts rationally, is the commercial world bound to know that he is insane, while at the same time men acknowledged to be sane are making hazardous, if not insane bargains? This doctrine would plainly be disastrous to all the commercial world, and the courts by mingling common sense with legal theory have warded off the evil results that must otherwise have followed. On this phase of the subject, the courts, first in England, and later in America have laid down this sweeping doctrine. If a person in good faith enters into a contract with one apparently sane, and whose actions would in no way tend to put a reasonably prudent man on his guard, and a valuable consideration has been paid, there being no undue advantage taken and no unfairness in the bargain, and the consideration cannot be restored by the insane person so as to place the other part in statu quo, then, whether the party be sane or insane, the contract will be good. It will be observed from the above that the contract is good or bad, conditioned on the absence of fraud and undue influence. The courts contend that it is no more than justice to the commercial world and that it is protection enough to the insane person to allow the contract to stand or fall under the test of fairness, good faith and the absence of fraud. But let us examine into the theory of this doctrine as propounded. Putting aside the question of good faith, observe that the courts are careful to state that the contract must be executed and that it must be impossible to put the other contracting party in statu quo. There is no authority to the effect that an executory contract will be held binding, nor an executed contract where the party can be placed in statu quo. We may conclude, though it is a negative conclusion, that contracts of this kind are not binding. An eminent law professor, recently observed that there is no such a thing as an executed contract; that it is as absurd to speak of an executed contract as to speak of a "filled up" post hole. If, then, an executed contract is in reality no contract at all, it certainly follows that it is a poor test of the validity of a

contract.

8 Molton v. Camroux, 2 Ex. 501; Beal v. See, 10 Pa. St. 56; Lancaster Bank v. Moore, 78 Pa. St. 414; Dane v. Kirkwall, 8 C. & P. 679; Behrens v. McKenzie, 23 Ia. 333.

9 Eugene Wambaugh, LL.D., Harvard Law School.

Again, assuming good faith, fairness and absence of fraud, the courts still hold that if the person contracting with the insane party can be placed in statu quo the contract will not stand. What does this mean? If a contract is valid, what does the accidental fact that a party can be placed in statu quo, have to do with it? If I buy a horse and the bargain is fair, the mere fact that I can return the horse does not give me the right to do so and rescind the sale. It would seem that there is something wrong with this executed contract, or the fact that one party can place the other in statu quo would not in any way alter its binding effect. The contract is not valid. It is not, then, because the executed contract is valid or binding, that it will not be set aside, but because an innocent party without fault or negligence would be prejudiced thereby. As between these two innocent parties, the law will not interpose to effect a wrong on either, but will suffer the misfortune to stand where nature put it. It is true, the courts have not always made this distinction, but have reached the same result on the inaccurate theory of the validity of executed contracts. Assuming that this is what the courts mean when they speak of the validity of executed contracts, let us examine the conditions under which the plea of insanity may arise. The law presumes that

every man is sane, 10 and he who pleads insanity must prove it. When it is once proved, unless intermittent, or mere hallucinations, it is presumed to continue until the contrary is proved.11 In many of the States there are statutes providing for the appointment of a guardian over the property of one found to be insane. The liability of an insane person under such circumstances, though largely dependent upon the construction of the State statutes, is a matter of considerable doubt and uncertainty. The question is this, is a person bound to know that a party is insane from the fact that a commission or probate court in a proceeding to appoint a guardian, has found the party to be insane? The records of these proceedings, being res inter alios acta, and between different parties, would generally be inadmissible. It is held, however, that this class of cases is similar to actions in rem and that the records may be

10 Brown v. Brown, 39 Mich. 792.

11 Hix v. Whittemore, 4 Met. 545.

12

introduced. In England the record is presumptive evidence of insanity but may be rebutted by testimony. In the United States there are two lines of cases, one holding that the record is presumptive evidence of insanity,12 and the other maintaing that it is conclusive.18 The distinction seems to be this, that where the finding is by an extra-judicial commission, the record is presumptive evidence, but where it is a matter passed upon by the Probate Court the record is conclusive.14 In any case, it must depend largely

on the State statute. When the statute declares that all contracts, made by an insane person under guardianship shall be void, the courts hold that the record of the appointment of such guardian is conclusive evidence of insanity. Theoretically this would seem to be an absurd ruling, but it is probable that what the courts mean, is, that the record is conclusive as to the appointment, and by the statute, if there be a guardian, it is immaterial, so far as the validity of the contract is concerned, whether the ward be sane or insane. 15 The validity of the contract, in such a case does not depend upon the sanity of the party, but upon the existence or non-existence of a guardian. It is generally conceded that the law of insanity is in a very uncertain and unsettled state. This uncertainty, however, is not so much an uncertainty of the oretical law, as of practical application. It arises from the fact that our law attempts to produce practical results and not to vindicate theories of right. A. K. GARDNER.

12 Hart v. Deamer, 6 Wend. 497; Van Dusen v. Sweet, 51 N. Y. 381.

13 Wait v. Maxwell, 5 Pick. 217.

14 Leonard v. Leonard, 14 Pick. 280.

15 Rannels v. Gemer, 80 Mo. 477.

Supreme Court of South Dakota, December 15, 1893. 1. An agent intrusted with a real estate mortgage, executed and acknowledged in blank as to the sum to be secured thereby, and authorized to fill such blank before its delivery, must pursue his authority strictly, and, if he exceeds his authority, the mortgagor is not bound by such mortgage, as between himself and a mortgagee who takes it with knowledge that it was so executed in blank, and has been filled up by such agent.

2. A real estate mortgage, executed and acknowl

edged by a wife and her husband, upon the homestead, and executed in blank as to the sum to be secured thereby, and intrusted by her to the husband with authority to fill such blank for the sum of $1,000, and which he, without the knowledge or consent of his wife, filled up with the sum of $1,500 in the presence of the mortgagee, and his attorney is invalid in the hands of such mortgagee as against the wife and the homestead property.

CORSON, J.: This was an action to foreclose a mortgage alleged to have been executed by Wiiliam S. Wait and Lucy A. Wait, his wife, on a quarter section of land in Lincoln county, to secure the payment of a promissory note for $1,500, executed by said William S. Wait. The defendant Lucy A. Wait, answered, alleging that she signed said mortgage in blank, and that thereafter the said plaintiff did, without right or authority from her, insert therein the name of the mortgagee and the amount purported to be secured thereby; and further alleged that the property described in the mortgage was the homestead of herself and her said husband, and was her separate property; and she prayed that the mortgage be canceled of record. Certain issues of fact were submitted to a jury, who found in favor of the defendant Lucy A. Wait (the respondent herein), which were adopted and supplemented by findings of fact by the court, and judgment rendered thereon in favor of the respondent, and the mortgage ordered to be canceled and discharged of record. From this judgment, and the order denying a motion for a new trial, the plaintiff appeals to this court.

The findings of the court, and its conclusions of law thereon, are as follows: (1) That, at all the times in this action mentioned, the defendants, William S. Wait and Lucy A. Wait, were and are now husband and wife, and residing together as such. (2) That at all times in this action mentioned, the premises affected by this action, were the homestead of these defendants, and occupied as such. (3) That the defendant Lucy A. Wait did not sign or deliver the mortgage set forth in the complaint, and recorded in Book O of Mortgages, page 586. (4) That the defendant Lucy A. Wait never signed or delivered any mortgage upon said premises, but did sign and deliver a blank paper to her husband, William S. Wait; that thereafter, without the knowledge or consent of Lucy A. Wait, and without any authority from her, the same was filled out as a mortgage, at the special instigation of the said plaintiff. (5) That the debt secured by said purported mortgage was an antecedent debt owing from William S. Wait to the plaintiff, and that no new consideration passed under the same." "Conclusions of law: (1) That the mortgage mentioned in the complaint, and recorded in Book O of Mortgages, on page 586, in the office of the register of deeds of said Lincoln county, South Dakota, is void and of no force or effect, and the same is no lien upon the premises therein described. (2) That the defendant is

entitled to have the same canceled and discharged of record."

Numerous errors are assigned, but, as only one question was argued by the learned counsel for appellant. it will not be necessary to insert them in this opinion. The facts, briefly stated, are as follows: "The mortgage in controversy, with the exception of the amount it was given to secure, was filled up by Mr. Wait at his home, some miles distant from Canton, and signed and acknowledged by himself and wife before a neighboring justice of the peace. The mortgage was executed in the name of one Levi Paxton as mortgagee, but he admits that he had no interest in the mortgage, and that be only acted as the agent of the plaintiff, to whom he transferred the legal title to the mortgage soon after the same was delivered. It appears from the evidence of Mr. Wait and his wife (the respondent herein) that she verbally authorized her husband to insert in the mortgage, as the amount to be secured thereby, the sum of $1,000, on condition that he should not give a mortgage upon his cattle. Subsequent to the execution and acknowledgment of the mortgage in blank as to the amount to be secured thereby, Mr. Wait took it to Canton, where he, in the presence of the counsel for the plaintiff, Mr. Paxton, the person named as mortgagee, and of the plaintiff herein, and in the absence of his wife, and without any other or further authority from her than that above stated, filled up the mortgage by inserting, as the amount to be secured thereby, the sum of $1,500, and delivered the same to said Paxton, and also executed a chattel mortgage upon his cattle, and delivered

that also.

The learned counsel for the appellant contends that, as Mrs. Wait authorized her husband to fill the blank in the mortgage, and the husband actually filled the blank, no private understanding between herself and husband as to the amount to be inserted can defeat the appellant's right to foreclose the mortgage; and he further contends that, for the same reason, the delivery of the mortgage was a valid delivery, although the husband in fact executed and delivered a chattel mortgage on his cattle. The learned counsel for the respondent contends that authority to fill a blank in a mortgage cannot be conferred by a verbal authority, under the statute of frauds in this State, and that such an authority can only be conferred by a written instrument. He also contends that, even if such an authority can be verbally conferred, the authority was limited to $1,000, and when Mr. Wait inserted $1,500, he exceeded his authority, and the mortgage, as to Mrs. Wait, was void. He also contends that, as Mr. Wait was only authorized to deliver the realestate mortgage on condition that he should not execute a chattel mortgage on his cattle, therefore, when he did in fact execute a chattel mortgage on his cattle. his authority to deliver the real-estate mortgage ceased, and the delivery thereof was unauthorized and void. The doctrine contended for by the counsel for appellant as

applicable to negotiable instruments, and which he seeks to have applied in this case, is thus stated by the Supreme Court of the United States in Bank v. Neal, 22 How. 107: "Where a party to a negotiable instrument intrusts it to the custody of another, with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted, or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and, as between such party and innocent third parties, the person to whom it was so intrusted must be deemed the agent of the party who committed such instrument to his custody, or, in other words, it is the act of the principal, and he is bound by it." Daniel. Neg. Inst. § 142; Angle v. Insurance Co.. 92 U. S. 330; Bank v. Douglass, 31 Conn. 180. It will be noticed that the doctrine laid down in the cases cited is limited to negotiable instruments in the hands of innocent third parties.

But while the free circulation, use, and transfer of negotiable commercial paper seemed to require the adoption of the rule contended for, and which seems to be sustained by the weight of authority, there is not, in our opinion, any necessity for extending the rule of real estate mortgages in favor of parties who have knowledge that the instrument has executed in blank, and the blank filled up by another person. We do not deem it necessary to consider the first proposi tion of the counsel for the respondent.- that a verbal authority to fill up a blank in a mortgage is insufficient to authorize the agent to fill the same and that such authority must be in writing,-upon which question the authorities are not agreed; but, in our view of this case, we shall assume that a verbal authority is sufficient. We are of the opinion, however, that the agent authorized to fill the blank must pursue his authority strictly, and, if he exceeds his authority, the mortgagor is not bound, as between himself and the mortgagee, who takes it with full knowledge of the fact that it was so executed in blank. Such mortgagee. taking the mortgage with notice that it was so executed in blank, and is filled up by an agent, takes it with full knowledge that it was an imperfect mortgage as it came from the hands of the maker, and that, unless the same is filled up by the agent strictly in pursuance of the authority conferred. the maker is not bound by it, and that it is not his mortgage. If, having notice of the defect in the mortgage, the mortgagee chooses to take it and rely upon the good faith of the agent in filling the blank, without requiring the mortgage to be reacknowledged after the blank is filled up, he assumes the risk that it is filled up in accordance with the authority conferred upon the agent, and, if it is not so done. the mortgage will be void as to the party whose instructions have not been followed. We think there is no injustice in requiring a mortgagee dealing with an agent, under the circumstances disclosed in the case at bar, to ascertain the extent of the agent's authority to