ing with Fitzherbert's "Natura Brevium" 202), no man could be allowed to stultify himself, and avoid his acts, on the ground of his being non compos mentis; but certainly the law did not allow the party himself to set aside, by any plea of insanity, acts of a public and notorious character, such as acts done in a court of record, and feoffments with livery of seisin, the doing or executing of which would not presumably be allowed, unless a party appeared to be of sound mind. The purchase also by a lunatic was valid, and vested the estate, and though his heirs might disagree to it, he could not (a). But the rule, as above laid down by Littleton and Coke, has, no doubt, in modern times been relaxed, and unsoundness of mind (as also intoxication) would now be a good defence to an action upon a contract, if it could be shewn that the defendant was not of capacity to contract, and the plaintiff knew it. The cases of Dane v. Viscountess Kirkwall (b), and Gore v. Gibson (c), were cited to prove this, and their authority fully supports the doctrine contended for. The plaintiff's counsel distinguished the cases of Browne v. Joddrell (d), and Baxter v. The Earl of Portsmouth (e), and other cases of that sort, on the ground that necessaries furnished to a lunatic were an exception to the general doctrine that he could not make a contract; and he cited the judgment of the Lord Chief Baron, in the case of Gore v. Gibson, as shewing a distinction between express and implied contracts, and deciding that all express contracts were void, if the parties to them were incapable of making a contract. On the other hand, it was argued by the defendant's counsel, that there was a distinction between contracts executed and executory; that executory contracts could not be enforced, but that executed contracts could not be disturbed, (a) Co. Litt. 2. (c) 13 M. & W. 623. (d) 1 Moo. & M. 105. 1848. MOLTON v. CAMROUX. 1848. MOLTON v. CAMROUX. if made in good faith and without notice of the incapacity; and he called our attention to this, that all the cases cited were cases where damages for the breach of an executory contract were in question, but that no case had yet decided, that an executed contract, if perfectly fair and bonâ fide, could be questioned on the ground of the unsoundness of mind of one of the parties; and he cited the cases of Howard v. The Earl of Digby (a), Williams v. Wentworth (b), and Selby v. Jackson (c), to shew that the House of Lords in the first case, and Lord Langdale in the two last, had recognised the liability of lunatics or their estate, in respect of contracts bonâ fide acted upon. The case of Niell v. Morley (d), before Sir William Grant, to the same effect, had been cited before by the counsel for the plaintiff. As far as we are aware, this is the first case in which it has been broadly contended, that the executed contracts of a lunatic must be dealt with as absolutely void, however entered into, and although perfectly fair, bonâ fide, reasonable, and without notice on the part of those who have dealt with the lunatic. On looking into the cases at law, we find that, in Browne v. Joddrell, Lord Tenterden says, "I think the defence (of unsoundness of mind) will not avail, unless it be shewn that the plaintiff imposed on the defendant." In Baxter v. The Earl of Portsmouth (e), (the Nisi Prius authority of which is in 2 C. & P. 178), Abbott, C. J., with the concurrence of the rest of the Court, laid down the same doctrine. In Dane v. Viscountess Kirkwall, Mr. Justice Patteson, in directing the jury, said, "It is not sufficient that Lady Kirkwall was of unsound mind, but you must be satisfied that the plaintiff knew it, and took advantage of it." We are not disposed to lay down so general a proposition, as that all executed contracts bonâ fide entered into must (a) 2 Cl. & Fin. 634. (b) 5 Beav. 325. (d) 9 Ves. 478. (c) 6 Beav. 192. be taken as valid, though one of the parties be of unsound mind; we think, however, that we may safely conclude, that when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bonâ fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic, or those who represent him. And this is the present case, for it is the purchase of an annuity which has ceased. On these grounds we think our judgment ought to be for the defendant. Judgment for the defendant (a). (a) Affirmed on error by the Court of Exchequer Chamber, (May 29, 1849). 1848. MOLTON v. CAMROUX. GAWLER v. CHAPLIN and two Others. June 8. the case against the sheriff, the declaration, af ter reciting that two writs of fi. CASE. The declaration stated, that two several writs In an action on of fieri facias had issued out of the Court of Queen's Bench, directed to the sheriff of Middlesex, upon two several judgments recovered by one James Lees against the now plaintiff, which said writs were indorsed &c., and were afterwards, and before the respective returns thereof, to wit, on &c., delivered to the defendants W. J. Chaplin and J. L., who then, and from thence until and at and fa. had been delivered to him to be executed, defendant, as such sheriff, under colour of the writs, wrongfully and injuriously seized goods of the plaintiff, of much greater value than sufficient to pay and satisfy the sum of money, interest, poundage, &c., indorsed on the writs, although the defendants well knew that the money arising from a part of the goods so seized would be sufficient to satisfy the indorsement on the writs; yet the defendant, contriving &c., afterwards, under colour of the said writs, wrongfully &c. did sell and dispose of more goods than necessary to satisfy the indorsement on the writs; and the defendant, further disregarding his duty &c., then sold the said goods for a much less sum of money than he could, might, and ought to have sold the same:- -Held sufficient, on motion in arrest of judgment. 1848. GAWLER υ. CHAPLIN. after the return of the said writs, were sheriff of the said county of Middlesex; and the defendant M. S., as their bailiff, afterwards and before the return of either of the said writs, to wit, on &c., within the bailiwick of the said W. J. Chaplin and J. L., as such sheriff as aforesaid, under colour of the writs, wrongfully and injuriously seized and took in execution divers goods and chattels, that is to say, (specifying them), of the now plaintiff, of much greater value than sufficient to pay and satisfy the sums of money, interest, poundage, and expenses, so indorsed on the said several writs, and thereby directed to be levied as aforesaid, to wit, of the value of &c., although the now defendants then well knew, that the money arising from the sale of part of the said goods and chattels so seized and taken in execution as aforesaid, would be sufficient to satisfy and pay the said sum of money, interest, poundage, and expenses, so indorsed and directed to be levied as aforesaid; yet the now defendants, contriving and wrongfully and unjustly intending to injure, oppress, &c., the now plaintiff, afterwards, to wit, &c., under colour and pretence of the said several writs, wrongfully and injuriously did sell and dispose of many more of such goods and chattels than were necessary and sufficient to pay and satisfy the said sums of money and interest, poundage and expenses, so indorsed and directed to be levied as aforesaid, to wit, the whole of the said goods and chattels so seized as aforesaid, and thereout levied a much greater sum than was sufficient to pay and satisfy all said sums of money, interest, poundage, and expenses, to wit, &c.; whereas the defendants then levied the said sum of money, interest, poundage, and expenses out and by means of the sale of part of the said goods and chattels, to wit, one-fifth part thereof: and the defendants, further disregarding their duty in that behalf, and contriving to injure the plaintiff, wrongfully and injuriously then sold the said goods and chattels for a much less sum of money, to wit, for &c., being much less, to wit, &c., less than the same were really worth, and for which the defendants could and might have and ought to have sold the same: and the defendants then converted and disposed of the monies arising from the said sale to their, the defendants', own use; by means whereof &c. The defendants pleaded not guilty, with other pleas, upon which issue was joined. At the trial of the cause, before Rolfe, B., at the Middlesex sittings, in Hilary Term last, the plaintiff obtained a verdict. In the same term, (Jan. 19), Humfrey moved for a rule calling on the plaintiff to shew cause why the judgment should not be arrested, or for a venire de novo; or why there should not be a new trial, on the ground of the verdict being against the evidence. There are three breaches in the present declaration, and, if the Court should be of opinion that either of them is insufficient, the defendants will be entitled to a venire de novo. The first breach is bad. It charges the defendants with seizing goods of the plaintiff, of greater value than sufficient to satisfy the sums indorsed upon the writ of execution. But the sheriff is justified in seizing enough to satisfy all demands for rent and taxes. The breach does not contain any allegation that the seizure was excessive or unreasonable. The second breach is also bad on the same grounds. It should have alleged that the defendants sold more goods than sufficient to meet the rent. Then the third breach does not state that the goods were sold negligently or improperly. [Rolfe, B.-That breach alleges that the goods were sold for much less than the defendants could, might, and ought, to have sold them for.] He referred to Phillips v. Bacon (a). [Parke, B.-The same question, with respect to the second and third breaches, arose in a case nearly similar to the present, Slade v. (a) 9 East, 298. 1848. GAWLER v. CHAPLIN. |