Sec 11

Administrators may avoid contract of insane decedent, sec 12. And so of representatives and guardians, sec 13. And so of party himself, sec 14. Lunatic liable for torts, sec 15.

Idiots are distinguished, by Lord Tenterden, in Ball v. Mannin, 3 Bligh (N. S.), 1, from lunatics by the test of permanency. As to idiocy, Lord Tenterden says : "I find in an old book on this subject, that if a person is capable of learning the alphabet, he is not within the legal definition of idiocy; yet it is impossible to hold that persons no further qualified are capable of executing a deed." And he further holds that it was right to tell a jury that to constitute mental incapacity, "it was not necessary he (the party whose sanity is in dispute) should be without any glimmering of reason."

2 Dennett v. Dennett, 44 N. H. 531; Mann v. Betterly, 21 Vt. 326; Brown v. Brown, 108 Mass. 386; Titcomb v. Vantyle, 84 111. 371; Willemin v. Dunn, 93 111. 511 ; Somers v. Pumphrey, 24 Ind. 231; Henderson v. McGregor, 30 Wis. 78 ; Coleman v. Frazer, 3 Bush, 300.

Sec 99

The rule laid down by Coke, that a man "should not be allowed to stultify himself,"2 was for some time so applied as to preclude either a party, or his representatives, from subsequently setting up his mental incapacity as a ground for avoiding a contract. This rule is as without foundation in the Roman law as it is repugnant to reason and good morals.3 sec 100. The extreme view of Coke, that mental incapacity cannot be set up to avoid a contract, was followed, in natural reaction, by the acceptance of the rule that all contracts are avoided by proof of mental incapacity.4 It is true that it is probable that nothing more was meant by this, than that when a man is transparently an idiot no contract made by him will be enforced.5 It is certain that it was never meant, that when there is nothing in the conduct and appearance of a party to notify those dealing with him that he is insane, and By early authorities, lunacy, unless involving total incapacity, no ground for avoidance of contract when such parties have no notice of his insanity, their bargains with him, no matter how much they may be to his advantage, are void. That a person apparently sane, for instance, should lease a house and occupy it and then be protected from payment, the bargain having been fair and advantageous to him, or that under similar circumstances he should buy goods and use them, and then be relieved from paying for them, never could have been intended. But in the rebound from the position of Coke, it was natural that expressions should be dropped to the effect that lunacy of all kinds should in all cases destroy capacity to contract.

Subsequent tendency to hold all contracts with lunatics void.

1 Infra, sec 177 et stq.

2 4 Co. 123; Co. Litt. 2476.

3 1 Story, Eq. Jur. sec 225 ; 1 Fonblan-que's Eq., Bk. 1, ch. 2, sec 1; Pollock, Wald's ed. 78. The Roman authorities distinguish between furiosus and the mente captus or demens. L. 25 C. de nupt. 5, 4; L. 8, sec 1, D. de tut. dat. 26, 5 ; L. 6, D. de cur. fur. 27, 10; L. 28, C de episc. and. 1, 4, cited Wind-scheid, Pandekt. sec 54, 11. Windscheid makes Wahnsinn convertible with lunacy, as afterwards defined, and Geis-tesschwachheit with idiocy, as defined above. In the Roman law, the lunatic is furiosus, the idiot fatuus. L. 2, D. de post. 3, 1; L. 21, D. de reb. auct. jud. 42, 5. Cicero, Tusc. iii. 5, speaks of the condition of the former as insania; and to same effect see L. un. C. 9, 7. Even as late as Brown v. Jodrell, 3 C.

& P. 30, where lunacy was pleaded as a defence to an action for work and labor done, Lord Tenterden said, "no person can be suffered to stultify himself, and set up his own lunacy in defence." He proceeded, however, to say that it would be otherwise, where the mental incapacity of one party was used by the other party to extort unfair conditions.

4 See Lang v. Whidden, 2 N. H. 435 : Mitchell v. Kingman, 5 Pick. 431; Grant v. Thompson, 4 Conn. 203 ; Rice v. Peet, 15 Johns. 503 ; Hope v. Ever-hardt, 70 Penn. St. 235 ; Fitzgerald v. Reed, 9 S. & M. 94 ; Hines v. Potts, 56 Miss. 346.

5 To this effect is Dexter v. Hall, 15 Wall. 9. For an exposition of the fluctuations of English law, see Pollock, op cit., 78-9.