Sec 101

Even supposing insanity to exist to such an extent as to preclude a party from making a binding contract, his estate will nevertheless be liable for necessaries furnished for his support. Such, as we have seen, is the rule humanely prescribed in reference to infants,1 and such, for the same reason, is the rule in reference to insane persons.2 The wife of a lunatic may buy necessaries for herself on his credit, though he be at the time confined in an asylum.3 And a lunatic's liability for necessaries continues even under a statute which provides that all the contracts of a lunatic under guardianship shall be void.4 Legal expenses incurred in the protection of the lunatic and his estate fall under the head of necessaries.8

Sec 102

As insanity is a generic term, covering mental disturbance of all grades, the better view is, that no rule absolutely and universally determining its effects can be imposed.1 The monomaniac is held by the highest authorities to be insane; yet the monomaniac is responsible in matters to which his delusion does not extend. There are probably as few persons perfectly sane as there persons perfectly insane. No bargain was ever made in which one of the parties was not superior to the other in mental capacity ; none, if there was a consenting mind on both sides, in which absolute incapacity on either side could be proved. Hence, after first swinging to the position that insanity can never be set up by a party to avoid his contracts, and then rebounding to the position that all contracts by insane persons are void, the courts have settled on the rule that the question of competency is one of fact to be determined on the special circumstances of the particular case. If the party making a contract was at the time without the capacity to contract, then the contract is void. But such incapacity is rarely, if ever, absolute. The mere fact of apparent consent indicates some degree, however small, of reason.-The question then first arising is, was there reason sufficient for the particular act ? " Whether in any particular case," says Mr. Pollock,2 "a state of consciousness of this kind (drunkenness) does or does not amount to absolute deprivation of a consenting mind for the purposes of contract, is a question which it would be probably impracticable and certainly undesirable for a court of justice to enter into. The same considerations apply with almost or quite the same force to the capacity of a lunatic." And he declares the English rule to be "that the contract of a lunatic or drunken man, who by reason of his lunacy or drunkenness is not capable of understanding its terms or forming a rational judgment of its effect upon his interest, is not void, but only voidable at his option; and this only if his state is known to the other party." Wherever there is mental capacity to contract, in other words, there a contract may be made, subject to be avoided at the option of a party whose eccentricity or debility of mind has been knowingly practised on by the other side. When there is no capacity to contract,-i. e., in cases of idiocy and frenzy, -then there is no contract for want of a consenting; mind.1- The distinction between "voidable" and "void" contracts has been already generally discussed.2 It is proper here to say, that the fact that "void" and "voidable" are used in many cases as convertible terms makes it necessary to appeal rather to the reason on which such cases rest than to their particular words.3

Exception always recognized as to necessaries.

Prevalent view now is that where there is capacity there is liability : but that contract is voidable when made with party with notice.

1 Supra, sec 64 et seq.

2 1 Wh. & St. Med. Jur. 4th ed. sec 1; Bagster v. Portsmouth, 7 D. & R. 614; 5 B. & C. 170; Niell v. Morley, 9 Ves. 478 ; Dane v. Kirkwall, 8 C. & P. 679 ; Tarbuck v. Bispham, 2 M. & W. 6 ; Sawyer v. Luf kin, 56 Me. 308; Mc-Crillis, v. Bartlett, 8 N. H. 569 ; Lincoln v. Buckmaster, 32 Vt. 652 ; Kendall v. May, 10 Allen, 59; Skidmore v. Romaine, 2 Bradf. (N. Y.) 122; Van Horn v. Hann, 39 N. J. L. 207 ; La Rue v. Gilkyson, 4 Barr, 375;.

Richardson v. Strong, 13 Ired. L. 106 ; Carr v. Holliday, 5 Ire. Eq. 167; Nor-thington ex parte, 1 Ala. Sel. Ca. 400 ; Coleman v. Frazer, 3 Bush, 300 ; Mc-Cormick v. Little, 85 111. 62 ; Infra, sec 121.

3 Read v. Legard, 6 Exch. 636 ; Shaw v. Thompson, 16 Pick. 198.

4 McCrillis v. Bartlett, 8 N. H. 569.

5 Meares in re, L. R. 10 Ch. D. 582; Williams v. Wentworth, 5 Beav. 325 ; Hallett v. Oakes, 1 Cush. 296; see supra, sec 71; infra, sec 122.

1 1 Wh. & St. Med. Jur. 4th ed. sec 2 Follock, 3d ed. 102. 531 et seg.