lished or conceded, the presumption is shifted to the other side, and sanity is then to be shown. (d) The party himself may set up as a defence, and in avoidance of the contract, that he was non compos mentis when it was alleged to have been made. The principle advanced by Littleton and Coke, (e) that a man shall not be heard to stultify himself has been properly exploded, as being manifestly absurd and against natural justice. (ƒ) The rule formerly was, that intoxication was no excuse, and created no privilege or plea in avoidance of a contract; (g) but it is now settled, according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, * 452 though his incompetency be produced by intoxication, *is void. (a) This question was fully and ably considered in Barrett v. Buxton; (b) and it was decided that an obligation, executed by a man when deprived of the exercise of his understanding by intoxication, was voidable by himself, though the (d) Swinb. part 2, sec. 3, ¶ 4, 7. Attorney General v. Parnther, 3 Bro. C. C. 441. Lord Erskine, in White v. Wilson, 13 Vesey, 88. Jackson v. Van Dusen, 5 Johns. 144. Ballew, v. Clarke, 2 Ired. (N. C.) 23. Allis v. Billings, 6 Metcalf, 415. (e) Littleton, sec. 405. Beverley's case, 4 Co. 123. Co. Litt. 247 a. (ƒ) F. N. B. 202, D. Yates v. Boen, Str. 1104. Lord Holt, in Cole v. Robins, Buller (N. P.) 172. Webster v. Woodford, 3 Day, 90. Grant v. Thompson, 4 Conn. 203. Mitchell v. Kingman, 5 Pick. 431. Rice v. Peet, 15 Johns. 503. Ballew v. Clarke, 2 Ired. (N. C.) 23. In Baxter v. Earl of Portsmouth, supra, p. 450, n. b., Littledale J., said that a specialty might be avoided by plea of lunacy, if, at the time it was executed, the defendant was non compos mentis; but that the rule did not apply to the case of necessaries supplied to a person insane on some particular subject and sound on others, though found by inquisition to have been of unsound mind when the contract was made. And in Brown v. Jodrell, 3 Carr. & Pa. 30 S. C. 1 Moody & Malk. 105, Lord Tenterden would not allow a defendant to stultify himself in an action of assumpsit for work and labor, unless he could show imposition in consequence of mental imbecility. The point, whether unsound mind could be a defence in the case of an unexecuted contract, was expressly waived in the case of Baxter v. Earl of Portsmouth. The rule, allowing defendant to stultify himself by plea, seems now to be confined to specialties. (g) Co. Litt. 247 a. Johnson v. Medlicott, cited in 3 P. Wms. 130. (a) Lord Holt, in Cole v. Robins, Buller N. P. 172. Lord Ellenborough, in Pitt v. Smith, 3 Campb. 33. 1 Starkie N. P. 126. Sir William Grant, in Cooke v. Clayworth, 18 Vesey, 12. Wade & Massy v. Colvert, 2 Mill Const. 26. Ring v. Huntington, 1 Ibid. 162. Foot v. Tewksbury, 2 Vermont, 97. Prentice v. Achorn, 2 Paige, 30. Burroughs v. Richmond, 1 Green (N. J.) 233. Harbison v. Lemon, 3 Blackf. (Ind.) 51. Hotchkiss v. Fortson, 7 Yerger, 67. Gore v. Gibson, 13 Mees. & W. 623. (b) 2 Aikin (Vt.) 167. Hutchinson v. Tindall, 2 Green Ch. 357, (N. J.) S. P. See, also, Birdsong v. Birdsong, 2 Head, 289. intoxication was voluntary, and not procured through the circumvention of the other party. (c) 1 Imbecility of mind is not sufficient to set aside a contract when there is not an essential privation of the reasoning faculties, or an incapacity of understanding, and acting with discretion in the ordinary affairs of life. This incapacity is now the test of that unsoundness of mind which will avoid a deed at law. The law cannot undertake to measure the validity of contracts by the greater or less strength of the understanding; and if the party be compos mentis, the mere weakness of his mental powers does not incapacitate him. (d) Weakness of understanding may, however, be a material circumstance in establishing an inference of unfair practice or imposition; and it will naturally awaken the attention of a court of justice to every unfavorable appearance in the case. (e) Nor is a person born deaf and dumb to be deemed absolutely non compos mentis, though by some of the ancient authorities he was deemed incompetent to contract. (f) The proposition would seem to be a reasonable one, that every such person was primâ facie incompetent, inasmuch as the want of hearing and speech must exceedingly cramp the * * 453 (c) Drunkenness rendered a contract void by the civil law. Pothier, Traité des Oblig. 49. Heinecc. Elem. Juris. Nat. 1, 13. The rule in equity is, that the court will not interfere to assist a person on the ground merely of intoxication; but if any unfair advantage has been taken of the person's intoxication, it will render all proper aid. Cooke v. Clayworth, 18 Vesey, 12. Hutchinson v. Tindall, 2 Green (N. J.) 357. Crane v. Conklin, Saxton Ch. (N. J.) 346. Dealing with persons non compos is evidence of fraud; but if the evidence of good faith is full and the contract beneficial to the infirm person, the court of chancery will not interfere. Jones v. Perkins, 5 B. Mon. 227. (d) Osmond v. Fitzroy, 3 P. Wms. 129. Lord Hardwicke, in Bennett v. Vade, 2 Atk. 324. Ball v. Mannin, I Dow (N. S.) 380. Bracton de Exceptionibus, lib. 5, ch. 20. (e) Blatchford v. Christian, 1 Knapp, 73. (f) Brower v. Fisher, 4 Johns. Ch. 441. Fleta, lib. 6, ch. 40. Bro. tit. Escheat, pl. 4. sons to be fit subjects for a curator or guardian. nius and Ferriere, h. t. 1 In Gore v. Gibson, cited supra, a distinction is taken between an express and implied contract. In the latter, as for money had and received, necessaries furnished, &c., drunkenness may be no defence. As to intoxication at the commission of a crime, see People v. Rogers, 18 N. Y. 19. 2 When this degree of incapacity exists, proceeding from any cause whatever, a writ quasi de lunatico inquirendo will now be supported. Baker's case, 2 Johns. Ch. 232. Ridgeway v. Darwin, 8 Vesey, 65. powers, and limit the range of the human mind. But it is well known, by numerous and affecting examples, that persons deprived of the faculty of speech and the sense of hearing, possess sharp and strong intellects, susceptible of extensive acquirements in morals and science. (a) If the contract be entered into by means of violence offered to to the will, or under the influence of undue constraint, the party may avoid it by the plea of duress; and it is requisite to the validity of every agreement, that it be the result of a free and bona fide exercise of the will. (b) If a person be under an arrest for improper purposes, without a just cause, or where there is an arrest for a just cause, but without lawful authority, he may be considered as under duress. The general rule is, that either the imprisonment or the duress must be tortious and without lawful authority, or by an abuse of the lawful authority to arrest, to constitute duress by imprisonments. (c) Nor will a contract be valid if obtained by misrepresentation or concealment, or if it be founded in mistake as to the subject-matter of the contract. But (a) Mr. Justice Story, in his Commentaries on Equity Jurisprudence, pp. 227-245, has fully discussed the question, and examined the authorities both in the English and the civil law, which bear on it, respecting the relief afforded in equity against contracts and other acts of persons wholly or partially non compos mentis. (b) By the Scotch law, force and fear annul engagements, when they are such as to shake a mind of ordinary firmness. Bell's Principles of the Law of Scotland, p. 5. Fear of unlawful imprisonment will constitute a case of duress per minas, and avoid a contract. Co. Litt. 253 b. 2 Inst. 483. Foshay v. Ferguson, 5 Hill (N. Y.) 154. (e) Nicholls v. Nicholls, 1 Atk. 409. Thompson v. Lockwood, 15 Johns. 259. Watkins v. Baird, 6 Mass. 511. Stouffer v. Latshaw, 2 Watts (Penn.) 165. Richardson v. Duncan, 3 N. Hamp. 508. This last case states, that even an arrest for a just cause and under lawful authority, may amount to duress, if done for unlawful purposes. 5 Hill (N. Y.) 157, S. P. There is a material distinction between duress of the person and duress of goods, and the latter will not render an agreement void. Skeate v. Beale, 11 Adol. & Ell. 983. Powell J, in 11 Mod. 203. But though a man may not avoid his bond procured by an illegal distress of his goods, Mr. Justice Bronson had no doubt that a contract procured by threats and the fear of battery, or the destruction of property, might be avoided on the ground of duress. Foshay v. Furguson, sup.2 1 Sec Breck v. Blanchard, 2 Foster, 303. Payments made in case of duress of personal property, may be recovered back. Fleet wood v. City of New York, 2 Sandf. (N. Y.) 475. Harmony v. Bingham, 1 Duer, 229. S. C. 2 Kernan, 99. See, also, Oates v. Hudson, 5 Eng. L. & Eq. 469. Mayor of Baltimore v. Lefferman, 4 Gill, 425. Beckwith v. Frisbie, 32 Vermont, 559. Shaw v. Woodcock, 7 Barn. & Cress. 73. Parker v. Bristol & Exeter R. R. 7 Eng. L. & Eq. 528. As to what constitutes duress, see Strong v. Grannis, 26 Barb. (N. Y.) 122; Burr v. Burton, 18 Ark. 214. the distinctions under this head will be considered at large in a subsequent part of the lecture. II. The lex loci as to contracts. Questions have frequently arisen on the effect to be given to foreign laws, when brought into view in discussions concerning personal rights and contracts. The inquiry is, how are contracts made abroad to be construed, and in what manner and to what extent are they to be enforced and discharged, when the law of the country in which they were made, and the law of the country in which performance is sought, are in collision? The subject forms a secondary branch of the law of nations; *454 and the rules by which such questions are governed are founded on the principles of general jurisprudence, and are incorporated into the code of national law in all civilized countries. It is sometimes called private international law, and it exists not strictly ex jure gentium, but rests on the comitas gentium. But if one independent state allows commercial intercourse and contracts between its citizens and those of another, the rights of the parties and the relation between them would seem to have a higher claim than that of mere comity, a claim of justice, though perhaps of imperfect obligation under the laws of independent states within their own territories. The principal events which produce a conflict in respect to personal rights and the distribution of property between the laws of the country where the judicial discussions arise and the laws of the place of the party's domicil, are marriage, death, bankruptcy, and the application of remedies. We have already adverted to the subject, (though necessarily in the brief manner which the nature of the present undertaking required,) in respect to the effect of foreign suits and judgments; (a) and in respect to marriage, (b) divorce, (e) infancy, (d) assignments in bankruptcy, (e) the discharge of insolvent debtors, (f) and the distribution of intestates' estates. (g) A further view of the doctrine will be useful, and (a) Supra, p. 118. (b) Supra, pp. 91, 183, 184. (d) Supra, p. 233. (f) Supra, pp. 392, 393. (g) Supra, pp. 67, 428-434. Those universal personal qualities which the laws of all civilized nations consider as essentially affecting the capacity to contract, as majority and cannot fail to be interesting to the student, in its application to contracts at large; for questions arising on the extra-territorial operation of statutes, usages, and judicial decisions, are becoming frequent and delicate topics of discussion in our American law. A contract, valid by the law of the place where it is made, is, generally speaking, valid everywhere jure gentium, and by tacit assent. The lex loci contractus controls the nature, construction, and validity of the contract; and on this broad foundation the law of contracts, founded on necessity and commercial convenience, is said to have been originally established. (h) If the rule were otherwise, the citizens of one country could not safely contract, or carry on commerce, in the territories of another. The *455 necessary intercourse of mankind requires that the acts of parties, valid where made, should be recognized in other countries, provided they be not contrary to good morals, nor repugnant to the policy and positive institutions of the state. (a) The doctrine of the lex loci is replete with subtle distinctions and embarrassing questions, which have exercised the skill and learning of the earlier and most distinguished civilians of the Italian, French, Dutch, and German schools, in their discussions on highly important topics of international law. (b) These topics minority, marriage or celibacy, sanity or lunacy, &c., are regulated by the lex domicili and travel with parties wherever they go, as see post, p. 456. (h) Ex hoc jure gentium omnes pæne contractus, introducti sunt — usu exigente et humanis necessitatibus. Inst. 1, 2, 2. Pardessus, Droit Commercial, tom. v. p. 1482. Trasher v. Everhart, 3 Gill & Johns. 234. Pickering v. Fisk, 6 Vermont, 102. Story's Com. on the Conflict of Laws, § 242. Rectores imperiorum id comiter agunt ut jura cujusque populi intra terminos ejus exercita, teneant ubique suam vim, quatenus nihil potestati aut juri alterius imperantis ejusque civium præjudicetur. Huber, tit. 3, de Conflictu Legum, sec. 2. (a) This principle of public law, says Toullier, (Droit Civil, tom. x. sec. 80, n.,) is well explained and enforced by M. Bayard, in the Nouvelle Collection de Jurisprudence, tom. ix. 759, and which he undertook in conjunction with M. Camus. (b) Among a host of jurists who have displayed their research and acuteness on these subjects, the most preeminent are, Dumoulin, d'Argentre, Burgundus, Rodenburgh, P. & J. Voet, Boullenois, Bouhier, and Huberus; and their respective doctrines, pretensions, and merits, were critically and ably examined by Mr. Livermore, of New Orleans, in his Dissertation on Personal and Real Statutes, published in 1829- -a work which is very creditable to his learning and vigorous spirit of inquiry. A curious fact is mentioned by Mr. Robertson, in his Treatise on the law of Personal Succession. He says that of the ninety-one continental writers on the subject of the Conflict of Laws, quoted or referred to by the American jurists, Livermore and Story, a large proportion of them was not to be found in the public law libraries in London, but all of them, except six, |