The answer, and the affidavits for the order of reference, showed that the defendant did not take issue upon the subject of the number and quantity of the articles specified in the bill of particulars, but that he alleged a breach of warranty and fraud and deceit in respect of the quality of the articles; and set up as a counter-claim a breach of warranty and fraud and deceit in respect of the quality of other merchandise purchased by the defendant of the plaintiff, not included in the complaint. The items of this last quantity of merchandise were admitted in the reply, except five; and the defendant in his affidavit stipulated to waive all damage as to those five items. Upon these facts, it was claimed that the action was not referable, and one of the grounds on which the claim was based, was that the gist of the action, or rather the issue, was fraud, and therefore within the constitutional inhibition. But the court thought otherwise. "Actions on contracts," said Church, C. J., "may be referred. This is an action on contract. The character of the action is determined by the complaint. The answer cannot change it. If the action is a referable one the answer cannot make it non-referable. The right to show fraud in the transaction and claim the damages by way of recoupment or counter-claim does not change the action, but permits a defense to the action to reach speedy justice and avoid circuity.'

14

This ruling must not be misunderstood. It does not go to the length of holding that, whether a case is referable is, in all cases, to be determined by the petition. In most cases, it is to be determined by the whole pleadings. The question is what issue is to be tried? Is it a single issue, or a number of distinct issues, such as a jury cannot be supposed, upon the hearing of oral testimony, to hold in their memories? Many cases go to show this. It is shown by a case already cited, from the Supreme Court of Wisconsin, where the plaintiff exhibited a bill of particulars which might, perhaps, have been called a long account; but as the only answer was payment, all the items of it were admitted, and therefore there was but one issue left to try, viz. the issue of payment, which

14 Welsh v. Darragh, 52 N. Y. 590.

did not necessarily involve a long account; and consequently it was not a case for a compulsory reference. 15

The meaning of the foregoing rule is this, that the general character of the action, that is, whether it be an action ex contractu or ex delicto, is determined by the petition; and where, upon the petition, it is an action ex delicto, as, for instance, an action for damages for fraud or deceit, the plaintiff is entitled to go to a jury. Tort being the groundwork of his action, he has a constitutional right to trial by jury, which the defendant cannot defeat by setting up a counter-claim which involves a long account. 16 Accordingly, it is held that the statute does not authorize a compulsory reference, when the accounts will arise and come in question collaterally. They must be the immediate object of the suit or the ground of the defense,-that is, directly and not collaterally involved." Possibly this conclusion rests upon the terms of the New York statutes, which the court cited

in support of it. 18 On the other hand, where

the complaint is an action upon a contract, and it appears that the trial thereof does involve the examination of a long account, it has been held that a defendant cannot defeat the plaintiff's right to have the case go to a referee, by tendering an issue of fraud in the transaction and claiming damages therefor by way of recoupment or counter-claim; 19 or by setting up any other counter-claim presenting an issue which would ordinarily be triable by a jury.20

§ 6. Statutes Embrace Equitable Actions. These statutes embrace actions of every sort. They are not arbitrarily restricted to actions upon contract, nor even to such actions as were formerly denominated actions at law. On the contrary, actions for equitable relief, which require the examination of a long account, may be referred.21

§ 7. Test of what is a Long Account.-The real test by which to determine whether or not

15 Knips v. Stefan, 50 Wis. 286.

16 Welsh v. Darragh, 52 N. Y. 590; Patterson v. Stettauer, 39 N. Y. Sup. Ct. 413.

17 Kaine v. Delano, 13 Abb. Pr. (N. S.) 29, 36. See, also, Todd v. Hobson, 3 Johns. Cas. 517.

18 New York Civil Proc., § 271; Laws of 1801, c. 90; § 2.

19 Verplanck v. Kendall, 45 N. Y. Sup. 525. 20 Broolyn, etc. R. Co. v. Reid, 21 Hun, 273. 21 Dane v. Liverpool, etc. Co., 21 Hun, 259.

the issue to be tried involves the examination of a long account, is to consider whether the items in dispute are too numerous to be retained in the minds of a jury, who keep no minutes of the evidence.22

§ 8. Numerous Items Involved in a Single Transaction.-A bill of particulars exhibiting numerous items, all of which were involved in a single transaction, is not a long account, within the meaning of such statutes. It has been so held where the action was by an attorney for professional services and disbursements, and the bill of particulars contained a large number of charges for services performed and disbursements made, in the prosecution of a single action.23 But in a case in Wisconsin, there was a single item for $2,564.20, as per bill rendered, apparently for professional services in a case which had been three times before the Supreme Court of that State. As this aggregate item probably involved a long account in itself, the Supreme Court held that a stipulation admitting other items, and thus abbreviating the account, would not have the effect of keeping the case from a referee.24

§ 9. Issues in Mandamus Proceedings.―The New York Code of Civil Procedure,25 provides that "an issue of fact joined upon an alternative writ of mandamus must be tried by a jury, unless a jury trial is waived, or a reference is directed by consent of parties." This special statute would seem to control the more general provision of the Code,26 empowering the court "to direct the trial of the issues of fact by a referee, when the trial will require the examination of a long account on either side." But the contrary has been held; and where the issue in a mandamus proceeding manifestly required the examination of a long account, the court sent it to a referee.27

§ 10. In Partition Proceedings.-The New York Code of Civil Procedure, 28 provides for

22 Brooklyn, etc. R. Co. v. Reid, 21 Hun, 273; Schmidt v. Rose, No. 929 St. Louis Court of App., opinion by Hayden, J.

23 Tracy v. Stearns, 61 How. Pr. 265.

24 Carpenter v. Shepardson, 46 Wis. 557. "Examination of Mutual Accounts." Under the Kansas statute, cases may be referred against the objection of a party, when they involve "the examination of mutual accounts." Civil Code Kas., § 292; Williams v. Elliott, 17 Kas. 523; Galbraith v. McCormick, 23 Kas. 706. 25 § 2083.

the sending of a cause to a referee in two cases: 1. Where the trial will require the examination of a long account; and, 2. Where it will not require the decision of difficult questions of law. Where, in an action for partition, there were a large number of defendants and many separate appearances, and the case presented four distinct questions of fact, two of which affected distinct parts of the property, and the other two affected undivided shares in the whole of the remainder, the case was regarded as one which ought to go to a referee, but for the latter clause of the statute; the court holding, as we understand the decision, that the question of title as to the two pieces of property involved difficult questions of law, which must, if any of the parties should insist upon it, be tried by a jury; but the conclusion was that the action might be severed and an issue made as to those questions of title which should be tried by a jury, and the remainder of the matters in controversy go to a referee.29

§ 11.-In Actions on Penal Bonds.-Where an action was upon a penal bond, and there was a statute relating to such actions, which contained a provision for ascertaining, by a verdict of a jury, whether the penalty of the bond had been forfeited, and the amount of damages, it was nevertheless held that another statute authorizing compulsory reference of issues which would involve the examination of a long account, so far controlled the former statute, that if, in an action upon a penal bond, it should clearly appear to the court that the issues raised would involve an examination of a long account, it was competent for the court, against the objection of either party, to send the issues to a referee. Such an order was made in an action upon the bond of a county treasurer, where it was obvious that the plaintiff must, in order to make out a prima facie case, investigate and prove nearly his entire account with the supervisors for his whole term of office. 30-ED. CENT. L. J.

28 § 1093.

29 Cassidy v. Wallace, 61 How. Pr. 240.

30 Supervisors v. Dunning, 20 Wis. 210. In Actions of Covenant. The question was raised, in an old case in New York, whether an action of covenant was a proper cause for a reference, where the issue raised involved the examination of a long account. The question was not, however, decided. The court held that there was nothing of the nature of an account in the issue raised, although there may have been sundry items of damage Thomas v. Reab, 6 Wend. 503.

DEED OF INSANE PERSON.

GRIBBEN v. MAXWELL.*

Supreme Court of Kansas, July 9, 1885.

DEED. [Insane Person.] Not Void, and when not Voidable.-Where a purchase of real estate from an insane person is made, and a conveyance is obtained in perfect good faith, before an inquisition and finding of lunacy, for a fair and reasonable consideration, without knowledge of the insanity, and no advantage is taken by the purchaser, the conveyance cannot be avoided by the insane person, or one representing him, if the consideration has not been returned to the purchaser, and no offer has been made to return the same.

Error from Cowley county.

Action commenced December 7, 1883, by Noah Gribben, as guardian of Olive E. Gribben, a lunatic, against Samuel E. Maxwell, to set aside a conveyance executed by Olive E. Gribben, on June 11, 1883. The petition, among other things, alleged that on June 11, 1883, the said Olive E. Gribben, being a lunatic, made, executed, acknowledged, and delivered to the defendant a quitclaim deed for three-sevenths interest of the E. 1⁄2 of the N. E. 1⁄44 of section 15, and the S. 1⁄2 of the N. W. 4 of section 14, all in township No. 34 S., of range 4 E., in Cowley county, in this State. The defendant filed an answer, the second defense of which was as follows:

"That he purchased of the said Olive E. Gribben the lands described in said petition in good faith; that he paid to the said Olive E. Gribben for said lands, the sum of three hundred and fifty dollars lawful money of the United States; that the said sum of money, paid for said lands as aforesaid, was a fair and reasonable price for the same at the time said purchase was made; that the said defendant had no knowledge or information of the lunacy of the said Olive E. Gribben; that at the said time, and before, there was nothing in the looks or conduct of the said Olive E. Gribben to indicate she was of unsound mind, or incapable of the transaction of business; but, on the contrary, at the time of said purchase, and for a long time prior thereto, the said Olive E. Gribben was apparently in possession of her full mental faculties, and was then, and had been for a long time prior thereto, engaged in the transaction of business for herself.

"Wherefore, the said defendant prays the said petition of the said plaintiff be dismissed, and that the title of the said defendant in and to the said lands be quieted against the claims of the said Olive E. Gribben, and all persons claiming or to claim under, through, or by her, and for such other and further relief as to the court may seem equitable.”

To the second defense of the answer the plaintiff filed a demurrer, upon the ground that it was insufficient in law to constitute any defense what

*S. c., 7 Pac. Repr. 584.

As a general rule, the contract of a lunatic is void per se. The concurring assent of two minds is wanting, "They who have no mind cannot concur in mind' with one another; and, as this is the essence of a contract, they cannot enter into a contract." 1 Pars. Cont. (6th ed.) 383; Powell v. Powell, 18 Kan. 371. Notwithstanding this recognized doctrine, the decided cases are far from being uniform on the subject of the liability or extent of liability of lunatics for their contracts. An examination of the cases upon the subject shows that there is an irreconcilable conflict in the authorities. We think, however, the weight of authority favors the rule that where the purchase of real estate from an insane person is made, and a deed of conveyance is obtained in perfect good faith, before an inquisition and finding of lunacy, for a sufficient consideration, without knowledge of the lunacy, and no advantage is taken by the purchaser, the consideration received by the lunatic must be returned, or offered to be returned, before the conveyance can be set aside at the suit of the alleged lunatic, or one who represents him. Wright, C. J., in Corbit v. Smith, 7 Iowa, 60, thus states the law:

"In the next place, a distinction is to be borne in mind between contracts executed and contracts executory. The latter the courts will not in general lend their aid to execute. where the party sought to be affected was at the time incapable, unless it may be for necessaries. If, on the other hand, the incapacity was unknown, no advantage was taken, the contract has been executed, and the parties cannot be put in statu quo, it will not be set aside."

In Behrens v McKenzie, 23 Iowa. 333, Dillon J., said:

"But, with respect to executed contracts, the tendency of modern decision is to hold persons of unsound mind liable, in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo.”

In Allen v. Berryhili, 27 Iowa, 534, it was decided:

That where a contract made by an insane person has been adopted, and is sought to be enforced by the representatives of such person, it is no defense to the sane party to show that the other party was non compos mentis at the time the contract was made."

Cole, J., dissenting, expressed his views as follows:

"In every case of contract with a lunatic, which has been executed in whole or in part, the fact

* * **

that the parties can or cannot be placed in statu quo, will have an important bearing in determining whether such contract shall stand. When the parties cannot be placed in statu quo, and the contract is fair, was made in good faith, and without knowledge of the lunacy, it will not be set aside, even at the suit of the lunatic. And this, not because the contract was valid or binding, but because an innocent party, one entirely without fault or negligence, might, and in the eyes of the law would, be prejudiced by setting it aside. Both parties are faultless. and therefore stand equal before the law; and in the forum of conscience the law will not lend its active interposition to effectuate a wrong or prejudice to either. It will suffer the misfortune to remain where nature has cast it."

In Bank v. Moore. 78 Pa. St. 407, a lunatic was held liable upon a note discounted by him at the bank, and Mr. Justice Paxson, in delivering the opinion of the court, said, among other things:

"Insanity is one of the most mysterious diseases to which humanity is subject. It assumes such varied forms, and produces such opposite effects, as frequently to baffle the ripest professional skill and the keenest observation. In some instances it affects the mind only in its relation to or connection with the particular subject, leaving it sound and rational upon all other subjects. Many insane persons drive as thrifty a bargain as the shrewdest business man, without betraying in manner or conversation the faintest trace of mental derangement. It would be an unreasonable and unjust rule that such persons should be allowed to retain the property of innocent parties, and retain both the property and its price. Here, the bank in good faith loaned the defendant the money on his note. The contract was executed, so far as the consideration is concerned, and it would be alike derogatory to sound law and good morals that he should be allowed to retain it to swell the corpus of his estate."

Mr. Pomeroy, in his treatise on Equity Jurisprudence, says:

"In general, a lunatic, idiot, or person completely non compos mentis, is incapable of giving a true consent in equity, as at law. His conveyance or contract is invalid, and will generally be set aside. While this rule is generally true, the mere fact that a party to an agreement was a lunatic will not operate as a defense to its enforcement, or as ground for its cancellation. A contract executed or executory, made with a lunatic in good faith, without any advantage taken of his position, and for his own benefit, is valid both in equity and at law. And where a conveyance or contract is made in ignorance of the insanity, with no advantage taken, and with perfect good faith, a court of equity will not set it aside, if the parties cannot be restored to their original position, and injustice, would be done." Vol. 2, § 946 p. 465. See, also, Scanlan v. Cobb, 85 Ill. 296; Young v. Stevens, 48 N. H. 133; Eaton v. Eaton,

37 N. J. Law, 108; Freed v. Brown, 55 Ind. 310; Ashcraft v. De Armond, 44 Iowa, 229.

Applying the law thus declared in the case at bar, the district court committed no error in overruling the demurrer. It appears from the pleadings that the conveyance was executed and delivered before an inquisition and finding of lunacy; that no offer was made to return to the purchaser his money paid for the conveyance of the land: and the answer sets forth good faith on the part of the purchaser; that he paid a fair and reasonable price for the land; that he had no knowledge or information of the lunacy of Olive E. Gribben, the ward of the plaintiff; that there was nothing in her looks or conduct at the time to indicate that she was of unsound mind, or incapable of transacting business, but, on the contrary, that she was apparently in possession of her full mental faculties, and was then, and had been for a long time prior, engaged in the transaction of business for herself. Our attention is called to the case of Powell v. Powell, supra, as decisive that the conveyance in question is void; but a consideration of the views above expressed and the authorities cited shows that all the reasons to avoid a marriage with a lunatic do not apply in the case of a deed obtained in good faith from a lunatic, executed before an inquisition and finding of lunacy. We have examined fully the authorities on the other side of the question, and especially In re Desilver, 5 Rawle, (1835) 111; Gibson v. Soper, 6 Gray, 279; Van Deusen v. Sweet, 51 N. Y. 378; Dexter v. Hall, 82 U. S. (15 Wall.) 9.

Notwithstanding the recognized ability of the judges rendering these decisions, we are better satisfied with the doctrine herein announced. The order and judgment of the district court will be affirmed.

All the justices concurring.

NOTE.-Upon the question of the principal case the authorities are exceptionally discordant. The fundamental idea of a contract is, that it requires the consent of two minds, and as a lunatic is wanting in mental capacity, it would seem impossible that he could enter into a valid obligation. There cannot be a "meeting of the minds," for only one mind is present. Thus, the very essence of the contract fails. See Bishop on Cont., § 296; 1 Pars. on Cont., 383; 1 Addison on Cont., 231 et seq.; Gidson v. Soper, 6 Gray, 279; Dexter v. Hall, 15 Wall. 20; In re Desilver, 5 Rawle, 111; Van Densten v. Sweet, 51 N. Y. 378.

But, however correct this view may be, in principle, and notwithstanding that there are numerous authorities to support it, the law seems to be otherwise.

The rule generally followed is, that the deed of an insane person is not void, but voidable. 1 Pars. on Cont. 283; 3 Washb. R. Pr. 558; 4 Kent's Com. 450; Dart. on Vend. and Pur. 3; 1 Story's Eq., §§ 222, 228; Allis v. Billings, 6 Metc. 415; Arnold v. Richmond Iron Works, 1 Gray, 434. In this respect Blackstone classes infants with insane persons. He says that idiots and persons of non-sane memory, infants and persons under duress, are not totally disabled to convey or purchase, but sub modo only. For these conveyances and purchases are voidable, but not actually void. 2 Bl. Com. 291. See the following where both views of this

question are considered: 2 Sugden on Powers, 179; Beverley's Case, 4 Rep. 123; Thomson v. Leach, Comb. 468; S. C., 3 Salk, 300; 2 Kent's Com., 235 and notes; Ownes v. Ownes, 8 C. E. Green, 63; Zouch v. Parsons, 3 Burr. 1794; Bool v. Mix, 17 Wend. 119.

The general rule, that contracts with lunatics and insane persons are void, is subject to the qualification that a contract made in good faith with a lunatic, for a full and fair consideration, which has been executed without a knowledge of the insanity, or such information as would lead a prudent person to the belief of the incapacity, will be sustained. Mathiessen v. McMahan, 38 N. J. L. 36: Eaton v. Eaton, 37 N. J. L. 108; Beavan v. McDonell, 9 Exch. 309; Lincoln v. Buckmaster, 32 Vt. 652; Yauger v. Skinna, 1 McCarter, 389, where the rule is concisely stated. Lord Cranworth, in Elloit v. Ince, 7 DeG. M. & G. 475, after a full examination of the anthorities, states the rule, "that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding."

There is a class of cases such as Baxter v. Earl of Portsmouth, 2 C. & P. 178, in which imposition upon a lunatic-advantage taken of his mental infirmity-is held to be an essential ingredient of the defence-but these are cases of contracts for necessaries-contracts which lunatics, known to be such, are capable of entering into, and are exceptions to the general rule.

Other contracts with lunatics not strictly for necessaries which have been fully executed, and on which a consideration of benefit to the lunatic has been given, may be within the reason of the exception, where the transaction is shown to be perfectly fair and reasona ble, at least, so far as to allow the recovery back of the consideration given, or to prevent a rescission by the lunatic or his representatives, without restoring the consideration, whenever a restoration is practicable. The liability of the lunatic in such cases is upheld, not on the ground of the contract, but on the fact that the lunatic has received and enjoyed an actual benefit from the contract. This view is advanced by Pollack, C. B., in Gore v. Gibson, 13 M. & W. 626, and by Redfield, C. J., in Lincoln v. Buckmaster, 32 Vt. 658. On this principle, Brown v. Jodrell, 3 C. & B. 30; Dane v. Kirk wall, 8 Id. 676; Niell v. Morley, 9 Vesey, 478; Felby v. Jackson, 6 Beaven, 192; and the observations of Shaw, C. J., in Arnold v. Richmond Iron Works, 1 Gray, 434, may be reconciled with the other cases. See further, McCrillis v. Bartlett, 8 N. H. 569; Mut. Ins. Co. v. Hunt, 79 N. Y. 541; Young v. Stevens, 48 N. H. 133; Van Horn v. Hann, 10 Vroom. 207; 2 Pars on Cont. 386.

The contract must be bona fide, and there must be ignorance of the lunacy to render the contract voidable only. Price v. Berrington, 7 Hare. 402; Matthews v. Baxter, L. R. 8 Exch. 132; Bank v. Moon, 78 Pa. St. 407; Behrens v. McKenzie, 23 Iowa, 333; Succession of Smith, 12 La. Ann. 24; Carr v. Holliday, 1 Dev. & Bat. Eq. 344; Molton v. Comroux, 2 Exch. 487. But Bishop asserts that this knowledge is never absolutely controlling, "for if insanity exists, though unknown to the other, and the case is not one of contract created by law, it is not binding." Bish. Cont., § 294. See Hovey v. Hobson, 53 Me. 451, 453.

Many cases hold that such a contract, although not binding on the lunatic, cannot be rescinded by him or his representatives, unless the parties can be placed in statu quo. Bush v. Fenton, 14 Bush. 490; Fitzhugh v. Wilcox, 12 Barb. 235; Dane v. Kirkwall, 8 C. & P. 679. Other cases hold that the parties need not be placed in statu quo before a rescission. Gibson v. Toply, 6 Gray, 279, holds that an insane person, or his

guardian, may bring an action to recover lands, of which a deed was made by him while insane, which deed has not since been ratified or confirmed, without first restoring the consideration to the grantee. Thomas, J., reasons: To say that an insane man, before he can avoid a voidable deed, must put the grantee in statu quo, would be to say, in effect, that in a large majority of cases, his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain so as to be able to make restitution. If he was so far demented as not to know or recollect what the bargain was, the difficulty will be still greater.

This is good law where there is fraud practiced upon one who is known at the time to be insane, but is not the law where the purchase and conveyance are made in good faith, for a good consideration and without knowledge of the insanity; not only must the consideration be returned in such cases, before the conveyance will be avoided, but courts of equity and courts of law have gone further, and held that when persons of apparently sound mind and not known to be otherwise, enters into a contract which is fair and bona fide, and which is executed and completed, and the property, (the subject matter of the contract), cannot be restored so as to put the parties in statu quo, such contracts cannot be set aside either by the alleged lunatic or those who represent him. Eaton v. Eaton, 37 N. J. L. 108, 118; Yauger v. Skinner, 1 McCarter, 389; Molton v. Comroux, 2 Exch. 487; s. C., 4 Exch. 17. St. Louis, Mo. EUGENE MCQUILLIN.

MARRIED WOMEN'S PROPERTY.

CLARK v. KEMP.

Maryland Court of Appeals, Jan. 1885.

1. A judgment in favor of husband and wife for injuries to the wife, is "property."

2. It is "property of the wife," and is protected from an attachment of the husband's creditor's by a provision that "the property of the wife shall be protected from the debts of the husband."

3. Such a provision in the Constitution of a State is self-executing,- the property is protected without legislation.

4. But such a judgment is "property acquired by judgment," and is not made separate property by a statute securing to the wife all property acquired by "gift, grant, purchase, devise, bequest."

5. The respective rights of husband and wife in such a judgment discussed.

6. Notes by David Stewart.

BRYAN, J., delivered the opinion of the court: Charles E. Kemp and wife obtained a judgment against the Baltimore City Passenger Railway Company for bodily injuries to the wife. This judgment was attached by a creditor of the husband, and it was decided by the Court of Common Pleas that it was not attachable.-The attaching creditor has appealed to this court.

I. Rights of Husband and Wife at Common Law. -By the common law it was necessary that husband and wife should join in every action brought