Sec 113a

It has been argued, that as an insane person is irresponsible, a divorce on ground of adultery cannot be granted against an insane person.1 To this it may be replied that divorce statutes are meant to relieve parties from intolerable wrong, and the wrong of adultery is none the less intolerable, because the party committing it was insane.2 This view was intimated in England in the Mor-daunt case, although that case was decided upon the peculiar construction of a statute.3 The insanity of either party is now held no bar to a divorce in England ;4 but in this country it has been held that a divorce will not be decreed in favor of an insane plaintiff.5

Sec 114

Although it was once held otherwise, it is now settled, that a party who makes, when insane, a contract which would otherwise bind him, may avoid it, when restored to his reason, and when it is still unexecuted, by setting up his incompetency at the time of the contract.6 And when a contract is done, and every step such as the one reached in the above decision carefully watched." In Baker v. Baker, L. R. 5 P. D. 145, it was held that the committee of a lunatic's estate was the proper person to bring, on his behalf, proceedings of divorce against his wife. It is said in Hancock v. Peaty, L. R. 1 P. &D. 335, that "thequestion for the court is, whether the mind of the contracting party is diseased or not at the time of the contract, and if the evidence establishes that the mind was, at the time of entering the contract, diseased, the court will not enter into the extent of the derangement." Per Lord Penzance.

Distinctive rule as to divorce.

Party may himself avoid contract on ground of mental incompetency.

That cohabitation with recognition is strong proof of ratification, see Bishop, Mar. and Div. 6th ed. sec 135 et seq.

3 Nichols v. Nichols, 31 Vt. 328; Wray v. Wray, 19 Ala. 522 ; Rathbun v. Rathbun, 40 How. Pr. 328 ; though it is conceded that suit may be brought for adultery committed when sane. lb.

2 Matchin v. Matchin, 6 Barr, 332 ; 1 Wh. & St. Med. Jur. sec 18.

3 Stat. 20 & 21 Vict. c. 85, sec 27. See the cases, Mordaunt v. Mordaunt, L. R. 2 P. 109, 382.

4 Baker v. Baker, L. R. 5 P. D. 145, affirmed 6 P. D. 12 ; Mordaunt v. Mon-crieffe, L. R. 2 H. L. (Sc.) 374.

5 Worthy v. Worthy, 36 Ga. 45 ; Bradford v. Abend, 89 111. 78.

6 Beavan v. McDonnell, 9 Exch. 309 ; Lang v. Whidden, 2 N. H. 435 ; Seaver v. Phelps, 11 Pick. 304; Gibson v. Soper, 6 Gray, 279 ; Grant v. Thompson, 4 Conn. 203; Rice v. Peet, 15 Johns. 503; Loomis v. Spencer, 2 Paige, 158; Bensell v. Chancellor, 5 Whart. 371; Morris v. Clay, 8 Jones, N. C. 216; McCreight v. Aiken, 1 Rice, 56; Titcomb v. Vantyle, 84 111. 371; McCarty v. Kearnan, 86 111. 291; Van Patten v. Beals, 46 Ind. 62; Fitzgerald v. Reed, 9 S. & M. 94 ; Broadwater v. Dame, 10 Mo. 277.

divisible, it binds the lunatic (supposing it to have been fair, and executed by the other party in ignorance of his lunacy) so far as concerns the part executed, while the unexecuted part cannot be enforced.1 But no proceedings can be taken by the lunatic personally until his reason is restored.2