Sec 121

A drunkard, as is the case with lunatics and infants, is liable for necessaries sold him; though the action in such cases should be for goods sold and delivered, and not for an account stated, or for goods bargained and sold.5 The creditor is entitled to recover from the drunkard, "when sober, for necessaries supplied to him when drunk."1

Ratification to be inductively shown.

No defence in an action for necessaries.

French v. French, 8 Ohio, 214; Mansfield v. Watson, 2 Iowa, 111, at p. 115. But that equity will only relieve where fraud has been practised, and not otherwise, see Hutchinson v. Brown, 1 Clarke Ch. 408 ; Prentice v. Achorn, 2 Paige, 30; Wager v. Reid, 3 T. & C. (N. Y.) 332; Seymour v. Delancy, 3 Cowen, 445 ; Pittenger v. Pittenger, 3 N. J. Eq. 156; Hutchinson v. Tindall, 3 N. J. Eq. 357; Jones v. Perkins, 5 B. Mon. 222; Scanlan v. Cobb, 85 111. 296, at p. 298; White v. Cox, 4 Hayw. (Tenn.) 213; Campbell v. Ketcham, 1 Bibb, 406 ; Rutherford v. Ruff, 4 Des-saus. 350; Johnson v. Medlicott, 3 P. Wms. 130; Shaw v. Thackray, 3 Sm. & G. 537.

1 Supra, sec 58.

2 Gore v. Gibson, 13 M. & W. 623; Joest v. Williams, 42 Ind. 565 ; Richardson v. Strong, 13 Ired. 106; Williams v. Inabnet, 1 Bailey, 343.

3 Matthews v. Baxter, L. R. 8 Ex. 132; Barrett v. Buxton, 2 Aik. 169; Seymour v. Delancy, 3 Cow. 445 ; Dorr v. Munsell, 13 Johns. 430; Taylor v. Patrick, 1 Bibb, 168; Fitzgerald v. Reed, 9 S. & M. 94.

4 Kelly, C. B., Matthews v. Baxter, L. R. 8 Ex. 133, and see other cases, supra, sec 118.

5 Cooke v. Clayworth, 18 Ves. 15 ; Gore v. Gibson, 13 M. & W. 623; Pitt v. Smith, 3 Camp. 33 ; Sawyer v. Luf~ ton, 56 Me. 309 ; Kendell v. May, 10 Allen, 59 ; Seymour v. Delancy, 3 Cow. 445 ; Prentice v. Ahorn, 2 Paige, 30; Vanhorn v. Hann, 39 N. J. L. 207; Jenners v. Howard, 6 Blackf. 240; Darby v. Cabarme, 1 Mo. Ap. 126; Jones v. Perkins, 5 B. Mon. 228.

Sec 122

As necessaries may be regarded the expenses of suits involving the protection of the drunkard and of his estate.2 sec 123. An inquisition of lunacy is not conclusive of lunacy in a contest between the alleged lunatic and third parties to test the validity of the lunatic's contracts. But the inquisition is admissible as prima facie evidence.3 The same rule applies to inquisitions in cases of drunkenness.4

Legal expenses may be necessaries.

Inquisition prima facie evidence.

1 Pollock, C. B., Gore v. Gibson, 13 M. & W. 623; adopted in Benj. on Sales, 3d Am. ed. sec 30, citing McCrillis v. Bartlett, 8 N. H. 569 ; Richardson v. Strong, 13 Ired. L. 106.

2 Meares in re, L. R. 10 Ch. D. 552; Williams v. Wentworth, 5 Beav. 325; Hallet v. Oakes, 1 Cush. 296 ; supra, sec 71, 92.

3 Sergeson v. Sealey, 2 Atk. 412; Faulder v. Silk, 3 Camp. 126 ; Dane v. Kirkwall, 8 C. & P. 683; Frank v. Frank, 2 M. & Rob. 315; Dexter v. Hall, 15 Wal. 9 ; Sawyer v. Lufkin, 56 Me. 308; Stone v. Damon, 12 Mass. 488 ; Hamilton v. Hamilton, 10 R. I. 538 ; Hoyt v. Adee, 3 Lans. 173 ; Hart v. Deamer, 6 Wend. 497 ; Banker v. Banker, 63 N. Y. 409 ; Gangwere's Est., 14 Penn. St. 417 ; McCreight v. Aiken, 1 Rice, 56. As assigning greater conclusiveness see Fitzhugh v. Wilcox, 12 Barb. 235 ; Wadsworth v. Sherman, 14 Barb. 169. In Leonard v. Leonard, 14 Pick. 280, it was said that "as to most subjects, the decree of the probate court, so long as the guardianship continues, is conclusive evidence of the disability of the ward ; but that it is not conclusive in regard to all." See L'Amoureux v. Crosby, 2 Paige, 422. Cf. Wh. on Ev. sec 1254; Leggate v. Clark, 111 Mass. 308.

4 Leonard v. Leonard, 14 Pick. 280; Wadsworth v. Sharpsteen, 8 N. Y. 388 ; Klohs v. Klohs, 61 Penn. St. 245. In Blakely v. Blakely, 33 N. J. Eq. 502, it is intimated that by inquisition capacity to do business is determined ; and seeTozer v. Saturlee, 3Grant, Penn. 162. In Van Deusen v. Sweet, 51 N. Y. 378, it was held that an inquisition to the effect that a grantor at the time of the execution of a deed was non compos mentis, is only prima facie proof of incompetency; and this was followed, as to marriage, in Banker v. Banker, 63 N. Y. 409. Supra, sec 113. And see Goodell v. Harrington, 3 T. & C. 345. In L'Amoureux v. Crosby, 2 Paige, 422, the chancellor said : "As to acts done by a lunatic or drunkard, before the issuing of the commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, but not conclusive, evidence of incapacity. But all gifts of the goods and chattels of the idiot, lunatic, or drunkard, and all bonds or other contracts made by him after the actual finding of the inquisition declaring his incompetency, and until he is permitted to assume the control of his property by the court, are utterly void." See article in 16 Alb. L. J. 292, S. P.; Breed v. Pratt,.