liable thereon by suing him in an action in form ex delicto. (8)1 Thus he is not liable on a bill because he represented himself to be of full age, nor could the plaintiff reply that fact on equitable grounds.(t)

An infant drawing and indorsing bills may convey a title to the indorsee so that the indorsee can sue the acceptor and all other parties except the infant himself; (u) but the infant may avoid the contract, except where the acceptor has estopped himself by admitting (as we shall see he does) the capacity of an infant drawer to indorse.(x)2

An infant may sue on a bill.(y) But payment should be made

(8) Grove v. Neville, 1 Keb. 778; Johnson v. Pye, 1 Keb. 905-913; 1 Lev. 169, s. c.; Manby v. Scott, 1 Sid. 109; Jennings v. Rundall, 8 T. R. 335; Price v. Hewitt, 8 Exch. 146; and see Cranch v. White, 1 Bing. N. C. 417 (27 E. C. L. R.); 1 Scott 314, s. c. But in some cases he is liable for fraud: Byles on Bills, 6th Amer. edition, p. 100; Nelson v. Stocker, 28 L. J., Cha. 760; Re King, 27 L. J., Btcy. 33; see Wright v. Leonard, post, 65. See also Burnard v. Haggis, 32 L. J., C. P. 191, where an infant who had hired a horse was held liable for its misuse.

(t) Bartlett v. Wells, 1 Best & Smith 836 (101 E. C. L. R.).

(u) Taylor v. Croker, 4 Esp. 187; Nightingale v. Withington, 15 Mass. American Rep. 272; and see Drayton v. Dale, 2 B. & C. 299, 302 (9 E. C. L. R.); Grey v. Cooper, 1 Selw. N. P.; see Smith v. Johnson, 27 L. J., Exch. 363; 3 H. & N. 222, s. c.

(z) See the chapter on ACCEPTANCE.

(y) Chitty 20; Warwick v. Bruce, 2 M. & Sel. 205; Holliday v. Atkinson, 5 B. & C. 501 (11 E. C. L. R.) ; 8 D. & R. 163, s. c. By next friend, see Order XVI., r. 8.

1

Where a contract is the substantive ground of action against an infant the plaintiff cannot sue in tort: Wilt v. Welsh, 6 Watts 9. An infant is not liable for a fraud in a contract which he is incapable of making: Brown v. Durham, 1 Root 273; West v. Moore, 14 Vermont 447; Wallace v. Morss, 5 Hill 391; Morrill v. Aden, 19 Vermont 505. But trover will lie against an infant for goods which came into his hands by means of an illegal contract: Vasse v. Smith, 6 Cranch 226; Lewis v. Littlefield, 3 Shepley 233; Fitts v. Hall, 9 N. Hamp. 441; Town v. Wiley, 23 Vermont 355.

An infant may, for a valuable consideration, indorse a negotiable promissory note or bill of exchange so as to transfer the property to an indorsee: Nightingale v. Withington, 15 Mass. 272. The indorsement of an infant payee enables his indorsee to sue the maker: Frasier v. Massey, 14 Indiana 352. As to liability of sureties on note of infant: Baker v. Kennett, 54 Mo. 82.

to his guardian; yet payment to the infant may under some circumstances be good.(z)

An infant is not in case of contract estopped by his own representations.(a)

*The exercise of undue influence over persons of full age [*63] giving bills, notes or other securities, affords ground for the interference of a court of equity, which will either set aside the securities, or by a perpetual injunction restrain all proceedings. (b)1 This jurisdiction is not confined to the case of guardian and ward, but applies wherever there exists between the parties a relation or connection constituting anything like a trust or guardianship, or conferring authority, control or influence. It comprehends parents and step-parents, and may extend to other relatives, according to the circumstances of the case. It reaches not only regular medical men, but quacks and impostors. It comprehends legal advisers, such as counsel or attorney, and extends to ministers of religion of any persuasion. In these cases the court will not suffer any such securities to be enforced, unless satisfied that they were given freely and voluntarily, and independently of any influence over the giver.(c)

The burden of proof lies on the upholder of the instrument. (d) The defendant in an action at law might avail himself of this defence by pleading an equitable plea, or now the facts, (e) which however would not, it is conceived, be a good defence against a holder for value without notice.

It is a general rule of universal law that the contracts of a luna

(2) Bayley 255.

(a) Cannam v. Farmer, 3 Exch. 698. But may be made a bankrupt: Ex parte Lynch, L. R., 2 Chan. D. 227.

(b) Harvey v. Mount, 14 L. J., Chan. 233; Archer v. Hudson, 15 L. J. 211; Maitland v. Irving, 16 L. J. 95; Rhodes v. Bate, 35 L. J. 267, and authorities there collected; Lyon v. Home, L. R., 6 Eq. 656, and cases cited.

(c) Eskey v. Lake, 22 L. J. 336; Williams v. Bayley, L. R., 1 H. L.; Ford v. Olden, L. R., 5 Eq. 461; Kempson v. Ashbee, L. R., 10 Chan. Ap. 15. See also the remarks of Lord Selborne in Morris v. Lord Aylesford, L. R., 8 Ch. Ap., and see post, chapter on INTEREST.

(d) Lyon v. Home, L. R., 6 Eq. 681.

(e) Heap v. Marris, L. R., 2 Q. B. D. 630.

1 Bennett v. Ford, 47 Ind. 264.

:

tic, an idiot, or other person non compos mentis from age or personal infirmity, are utterly void. (f) And the old authorities in the English law, that a man cannot be allowed to stultify himself by alleging his own lunacy, are shaken by the modern decisions.(g)

But it had been before held that if a note be made by a lunatic or person of imbecile mind, known to be so by the payee, it is a fraud in the payee, and the note is void even in the hands of an indorsee, at least if there be anything *unusual on the face of the note.(h) So, if the consideration be executory merely, [*64] it was said that it might perhaps be void, though the party dealing with the lunatic were not cognizant of his infirmity.(i) But it was held that a defendant could not set up his own insanity as a defence, unless it were known and taken advantage of by the plaintiff, so that there was a fraud in him.(j) And it still seems that, according to the English law, in order to avoid a fair contract on the ground of lunacy, the mental incapacity must be known to the other contracting party.(k)1

(f) Furiosus nullum negotium gerere potest, quia non intelligit quid agit: Inst. Lib. 3, tit. 20, s. 8; Dig. Lib. 50, tit. 1. 5, 40, 124.

(g) Kent's Comm. 451; and see the observations of Parke, B., in Gore v. Gibson, 13 M. & W. 623; and Alcock v. Alcock, 3 M. & G. 268 (42 E. C.

L. R.).

(h) Sentence v. Poole, 3 C. & P. 1 (14 E. C. L. R.); Baxter v. Lord Portsmouth, 2 C. & P. 178 (12 E. C. L. R.); 5 B. & C. 170 (11 E. C. L. R.); 8 Dowl. & R. 614, s. c.

(i) Ibid.

(j) Brown v. Jøddrell, 1 M. & M. 105; 3 C. & P. 30 (14 E. C. L. R.), s. c. ; Levy v. Baker, 1 M. & M. 106; but see Gore v. Gibson, 13 Mees. & W. 623. In Putnam v. Sullivan, 1 Mass. American Reports, it is said by Parsons, C. J., "that perhaps, if a blind man had a note falsely and fraudulently read to him, and he indorsed it, supposing it to be the note read to him, he would not be liable as indorser, because he is not guilty of any laches." It is, however, conceived that he must plead the fraud specially.

(k) Molton v. Camroux, 4 Exch. Rep. 19; Beavan v. M'Donnell, 9 Exch. 309; Elliot v. Ince, 26 L. J., Chan. 821; 7 De G., M. & G. 475, s. c. But the law of America seems more in accordance with general law, where it has been held that incapacity to contract arising from drunkenness makes a note void and incapable of confirmation. See Byles on Bills, 6th American edition, p. 104.

1 Sanity is to be presumed, and the burden of proof is on the party denying it. But after a general derangement has been shown, the burden is upon the other party to show the sanity at the time of doing a particular act: Jackson v. Van Dusen, 5 Johns. 144. To set aside promissory notes on the ground

Imbecility of mind cannot be proved under a plea that defendant did not make a promissory note.(?)

(7) Harrison v. Richardson, 1 Mood. & Rob. 504.

of mental incapacity it is not necessary to prove partial derangement. It is sufficient if there appears such weakness of mind as to incapacitate the party to guard himself against imposition and undue influence: Johnson v. Chadwell, 8 Humph. 145. An inquisition of lunacy is not conclusive against any person not a party to it: Den v. Clark, 5 Halst. 217. It is, however, not only primâ facie evidence of lunacy, but amounts to full proof until overpowered: Rogers v. Walker, 6 Penna. State Rep. 371. The acts of a lunatic before office found are not void, but voidable: Jackson v. Gumaer, 2 Cowen 552. After office found they are void: Pearl v. McDowell, 3 J. J. Marsh. 658. In an action by indorsee against the maker, insanity in the payee and indorser at the time of the indorsement is a good defence: Burke v. Allen, 9 Foster 106. In trover for a promissory note pledged to P. by S. when he was insane, it is no defence that P. did not know of nor have any reason to suspect the insanity, and acted bona fide: Seaver v. Phelps, 11 Pick. 304.

An executed contract by a merchant for the purchase of goods, before the day from which the inquest find him to have been non compos, cannot be avoided by proof of insanity at the time of the purchase, unless there has been a fraud committed on him by the vendor, or he has knowledge of his condition: Beals v. See, 10 Barr 56. The executed contract of a non compos mentis for necessaries bonâ fide supplied stands on the footing of an infant's contract for necessaries. Therefore the executor of a lunatic is liable for necessaries furnished to his testator while non compos mentis before a commission issued, and after the issuing of the commission and before the appointment of a committee: La Rue v. Gilkyson, 4 Barr 375. So a lunatic is bound for medical or surgical services administered to his wife: Pearl v. McDowell, 3 J. J. Marshall 658; Fitzgerald v. Reed, 9 Smedes & Marshall 94. Contracts with lunatics are not all absolutely void, but such as are fairly made with them for necessaries, or things suitable to their condition and habits of life, will be sustained: Richardson v. Strong, 13 Iredell 106. When a person apparently of sound mind and not known to be otherwise, and who has not been found a lunatic, fairly and bonâ fide purchases property, and receives and uses the same, whereby the contract becomes so far executed that the parties cannot be placed in statu quo, such contract cannot afterwards be set aside, or payment for the goods be refused either by the alleged lunatic or his representative: Wilder v. Weakley, 34 Maryland 181; Moore v. Hershey, 90 Pa. St. 196. Where habitual unsoundness of mind is once shown to exist, it is presumed to continue until something is shown to rebut the presumption: State v. Reddick, 7 Kansas 143; Carpenter v. Carpenter, 8 Bush 283. Where, however, the paroxysms of insanity are periodical, and the party generally recovers from them in a few days, the presumption of incapacity does not apply Carpenter v. Carpenter, 8 Bush 283; Staples v. Wellington, 58 Maine 453; People v. Francis, 38 California 183. Evidence that the payee of a negotiable instrument payable to order was insane during all the time from

It was formerly held that a man could not protect himself from any deed or agreement by pleading drunkenness, unless he also showed that the drunkenness was brought about by the management and contrivance of him who procured the deed or contract.(m) And this may still be the law in a case of partial drunkenness.'

But where there is total drunkenness the modern decisions have qualified the old doctrine. Total drunkenness producing a complete and manifest though temporary suspension of reason is of itself a defence to an action on a bill or note.(n) "It is just the same," says Alderson, B., "as *if the defendant had written his

name on the bill in his sleep in a state of somnambulism."(o) [*65]

But as an answer to an action on a bill or note, drunkenness must be specially pleaded.(p)

The contracts of a married woman are void at the common law. Without authority from her husband, therefore, she cannot at the common law charge either him or herself, by making, drawing, accepting or indorsing negotiable instruments;(q) not even if she live apart from him, and have a separate maintenance secured by

(m) Johnson v. Medlicotte, 3 P. Wms. 130; Cooke v. Clayworth, 18 Vesey 12. (n) At least by a person who had notice: Molton v. Camroux, 2 Exch. 487; 4 Exch. 17, s. c. In Matthews v. Baxter, a replication of a ratification when sober was held good on demurrer: L. R., 8 Ex. 132.

(0) Gore v. Gibson, 13 M. & W. 623. Marriages have been set aside on this ground: Browning v. Reane, 2 Phil. 69.

(p) Gore v. Gibson, supra.

(g) She cannot, like an infant, convey a title to third persons: Barlow v. Bishop, 1 East 432; 3 Esp. R. 266, s. c.

the issuing of the paper until his death is admissible to disprove the validity of the transfer: Hannahs v. Sheldon, 20 Mich. 278.

1

1 Mental incapacity at the time of contracting, produced by drunkenness or any other cause, is a good defence against a contract, whether by deed or parol: Jenners v. Howard, 6 Blackf. 240. Whenever a man loses his memory and understanding he is entitled to legal protection, whether such loss is occasioned by his own imprudence or misconduct or by the act of Providence : Bliss v. The Railroad, 24 Vermont 424. A note given by one incapable to contract from drunkenness is not merely voidable, but void, and is incapable of confirmation by the subsequent conduct of the maker: Barkeley v. Canon, 4 Richardson 136. See also Holland v. Barnes, 53 Ala. 83. Drunkenness is no defence against an innocent holder: State Bank v. McCoy, 69 Pa. St. 244.