have been appointed, their authority continues until majority ; but in all other cases, males at the age of fourteen, and females at twelve, have a right, with the approbation of court, to choose their own guardians; and it has been held in this State, that the power of guardians previously appointed ceases, of course, when the ward arrives at the age of choice. (a) It may be remarked, in general, that if any one of the acts which infants are disabled from doing of themselves are requisite to be done to protect their interests, they are to be done by their guardians.

§ 112. Idiots, Lunatics, and Deaf and Dumb Persons. (b) Per

far, persons are civilly liable at law for wrongs, when such acts, if they were the acts of adults, would be wrongs, done during infancy, when connected or supposed to be connected with contracts." Per Vice-Chancellor Knight Bruce, Stikeman v. Dawson, 1 De G. & S. 110. The question seems to be whether the action really sounds in contract or in tort. If in contract, then the plaintiff cannot, by choosing the form of an action ex delicto, render the infant liable. For instance, if a horse be let to an infant, and he uses him improperly, the wrong is so connected with the contract of hire, that the hirer cannot maintain any form of action. Jennings v. Rundall, 8 T. R. 335.

(a) Perry's Lessee v. Brainerd, 11 Ohio, 442.

(b) An insane person is liable for necessaries supplied to him. He is not bound by his contracts made or deeds executed after he has been judicially declared insane, and a committee or guardian has been appointed; such contracts and deeds are void. Where the inquest finds that he not only is insane at the date of the inquest, but has een so for a specified period antecedent, such finding does not conclude persons who alt with him during such antecedent period. Banker v. Banker, 63 N. Y. 409; Van son . Sweet, 51 N. Y. 378; Rippy v. Gant, 4 Ired. Eq. 443; Noel v. Karper, 58 97. If there is a question of fraud or imposition, the fact of insanity has in the determination of that question. In cases where there is no question of imposition, where the honesty of the transaction is not impugned, the law 3 as to the effect of the insanity of one of the parties. In England, the law settled. If such party has capacity to understand the transaction, though his ad is affected or impaired, the transaction is binding. If he is in fact insane, the law in England was established by Molton v. Camroux, first in the Exchequer, 2 Ex. 487, afterwards in Exchequer Chamber, 4 Ex. 17; confirmed in Beavan v. McDonnell, 9 Ex. 309; and more definitively determined in Matthews v. Baxter, L. R. 8 Ex. 132. It is, that a contract made by a person who is of unsound mind, so as to be incapable of understanding its effect, is not therefore absolutely void; it is voidable at that person's option, or the option of his representatives, unless the other contracting party did not believe, and had not reasonable cause to believe, that he was of unsound mind, in which case it is binding. Accordingly, partnership, which is a continuing partnership, is not dissolved by the insanity of one of the firm, but such insanity is ground for its dissolution by the court. 1 Lindley on Partnership, 235, and cases cited. The courts of chancery intimated in Price v. Berrington, 3 MacN. & G. 498; Elliott v. Ince, 7 De Gex, M & G. 475; Manning v. Gill, L. R. 13 Eq. 483; and held, in Campbell v. Hooper, 3 Smale & Giff. 153, that the same rule applies to deeds and mortgages. But they hold, also, that a voluntary deed, as a deed of disentailment and settlement- Elliott v. Ince, 7 De Gex, M. & G. 475, or a deed without consideration - Manning v. Gill, L. R. 13 Eq. 483,· is void. In the United States, it is generally held that contracts made by one of unsound mind are voidable. Seaver v. Phelps, 11 Pick. 304; Jackson v. Gumaer, 2 Cowen, 552; Ingraham v. Baldwin, 9 N. Y. 45; Chew v. Bank of Baltimore, 14 Md. 318; Fitzgerald v. Reed. 17 Miss. 94; Maddox v. Simmons, 31 Ga. 512; George v. Railway Co., 34 Ark. 613; Clark v. Trail, 1 Metc. (Ky.) 35; Musselman v. Cravens, 47 Ind. 1; Allen v. Berryhill, 27 Iowa, 534; Crowther v. Rowlandson, 27 Cal. 376.

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It seems to have been held that a contract is void (1) if made with one whose insanity is evident to any one of ordinary capacity and prudence, in Lincoln v. Buckmaster, 32 Vt. 652; Halley v. Troester, 72 Mo. 73; (2) if there is no consideration moving to him, as in a contract of suretyship-Van Patten v. Beales, 46 Iowa, 46; a gift to a charity, Riggs v. American Tract Society, 84 N. Y. 330; or as an accommodation indorser-Hicks v. Marshall, 15 N. Y. Supreme Ct. R. 327; Wireback v. Bank, 97 Pa. St. 543.

sons laboring under mental incapacity are of two kinds; namely, those who have no intellect, and those who have one in a deranged

But where the contract is fair, and the other contracting party is ignorant of his condition, and the contract has been executed by him or so far executed that he cannot be put in statu quo, the contract will not be rescinded, but will be enforced against him, and he will be required to pay his promissory note so given. Young v. Stevens, 48 N. H. 133; Yanger v. Skinner, 14 N. J. Eq. 389; Matthieson v. McMahon, 38 N. J. Law, 537; Beals v. See, 10 Barr, 56; Lancaster Bank v. Moore, 78 Pa. St. 407; Carr v. Holliday, 5 Ired. Eq. 167; Simms v. McLure, 8 Rich. Eq. 286; Wilder v. Weakley, 34 Ind. 181; McCormick v. Little, 85 Ill 62; Behrens v. McKenzie, 23 Iowa, 332.

A power of attorney, like all other volunteer deeds, executed by an insane person, is void. Dexter v. Hall, 15 Wall. 9.

It was decided in The Estate of Desilver, 5 Rawle, 111, that the deed of an insane person is void. The same was held in Van Deuson v. Sweet, 51 N. Y. 378. The case of The Estate of Desilver was decided on the ground that the law was long since settled by the case of Thompson v. Leach, that while the feoffment of a lunatic is only voidable, his conveyance by deed, or which takes effect only by deed, is void; and that, as in the United States there is no feoffment, but only conveyance by deed, the deed of an insane person is void. Prominence was given to this reasoning by its being adopted by Justice Strong of the Supreme Court of the United States in Dexter v. Hall. In that case, however, it was obiter dictum, as the case was upon a power of attorney, and it has never been questioned that the power of attorney of either infant or non compos is wholly void. Thompson v. Leach, which went twice to the House of Lords, is found reported in 3 Mod. 296, 301; 12 Mod. 173; 3 Lev. 284; Salk. 300, 427, 565, 576; Carthew, 435; Comberbach, 469. The rule is found in 12 Mod. 173, "The surrender is void; for whatever is done by an infant or non compos mentis which takes effect only by deed is void; but it is otherwise in case of a feoffment, by reason of the notoriety and solemnity thereof." It is stated in Hobart, p. 224, and other of the older books, that a lunatic's conveyance by fine, or by common recovery, when the lunatic appeared to the precipe in person and not by power of attorney, was voidable, not void. The distinction between voidab'e and void conveyances of a lunatic was between such public and solemn acts as a feoffment, a fine and a recovery, and secret deeds as surrender and release. The deed in Thompson v. Leach, though technically delivered, was retained by the surrenderer, was without consideration, and did not come to the knowledge of the surrenderee till more than five years after its execution. Lord Mansfield, in his masterly opinion in Zouch v. Parsons, held, announcing the decision of the court, that the ruling in Thompson v. Leach, so far as it referred to infants, was not law. It certainly cannot be said to be law in England now as to insane persons.

In the United States, conveyance is generally made by deed of bargain and sale. Here a deed of bargain and sale operates as a feoffment; the delivery of the deed transfers seisin. Arnold v. Richmond Iron Works, 1 Gray, 434; Hare v. Jernigan, 76 N. C. 471; and being executed in the presence of witnesses, acknowledged before a public officer, and placed on record where they are open to the inspection of all, they have as great "notoriety and solemnity” as a feoffment. Accordingly, in the United States generally, the deed of an insane person is held to be voidable only. Hovey v. Hobson, 53 Maine, 451; Arnold v. Richmond Iron Works, 1 Gray, 434; Eaton e. Eaton, 37 N. J. Law, 108; Crawford v. Scovell, 94 Pa. St. 48; Evans v. Horan, 52 Md. 602; Riggan v. Green, 80 N. C. 236; Elston v. Jasper, 45 Texas, 409; Breckenbridge v. Ormsby, 1 J. J. Marshall, 239; Freed v. Brown, 55 Ind. 310; Scanlan v. Cobb, 85 Ill. 296; Mohr v. Tulip, 40 Wis. 66.

A deed will not be avoided because the grantor is affected by monomania, unless the monomania is such that it infects the transaction. Ekin v. McCracken, 11 Phila. (Pa.) 534. It will not be avoided because the grantor is a monomaniac on the subject of religion. Burgess v. Pollock, 53 Iowa, 273.

In some States it has been held that restitution of the consideration is not required before a judicial avoidance of the deed of an insane person. Gibson r. Soper, 6 Gray, 279; Crawford v. Scovell, 94 Pa. St. 48; Nichol v. Thomas, 53 Ind. 42. In the first two cases it is intimated that only such restitution would in any event be adjudged as would be equitable under the circumstances. The action in Crawford v. Scovell was ejectment. But in Pennsylvania ejectment can be brought upon an equitable title. By the civil code of Louisiana, a deed or contract will be avoided only on the ground of notorious insanity; and reimbursement is ordered for only so much of the consideration as accrued to the benefit of the insane person. Fecel v. Guinault, 32 La. An. 91; Legay v. Marston, 32 La. An. 170.

state. As to the former, whether the want of intellect exist from birth, or be occasioned by some subsequent cause, we may call them idiots, though this term is usually restricted to persons born without mind. But in either case the result is the same. Here is a lack of mental power, a deficiency of intellect. As applied to crimes, the criterion is inability to distinguish right from wrong. As applied to civil matters, the criterion is inability to understand common things or manage common affairs. There need not be a total want of mind, but only such a degree of weakness or imbecility as to require guardianship.

The other class, including those who have intellect, but in a deranged state, may be called lunatics. There need not be frenzy or raving madness, such as to require confinement, but only a derangement, greater or less, of the reasoning faculties. And here the true criterion is delusion, which consists in believing without evidence, acting without motive, reasoning without premises, and treating fancies as realities. It is not enough that the delusion have an insufficient basis. It must have no basis at all; and it must so thoroughly possess the mind as to become a fixed idea, out of which the subject cannot be reasoned. This insanity may be either total or partial. There may be a general kind of delusion upon all subjects, or only upon one or more subjects. The latter kind is called monomania. Here reason is not wholly dethroned, but delusion sits beside her. The mind is not wholly darkened, but only some of its apartments. The monomaniac may be perfectly sane on all subjects but one, and perfectly wild on that. And it is chiefly with respect to this kind of insanity that difficulties arise in jurisprudence. With respect to crimes, it is now settled that monomania is no excuse, unless the delusion be directly connected with, and the cause of, the crime. With respect to civil matters, such as contracts and wills, the better opinion is, that monomania will not set them aside, unless it be so directly connected with them as either to have wholly produced, or essentially modified them. There is another kind of insanity called moral by medical writers, which exists when there is no intellectual delusion, but only a perversion of the moral sentiments and affections. this has never been recognized in jurisprudence, and I trust never will be; because it would not only furnish an universal apology for crime, but introduce the utmost uncertainty into civil transactions. (a)

But

Where the purchase was a fair one, and made in ignorance of the insanity of the grantor, and the consideration paid, the court has, in the following cases, held_the deed valid and refused to set it aside. Riggan v. Green, 80 N. C. 236; Rusk v. Fenton, 14 Bush, 490; Scanlan v. Cobb, 85 III. 296; Ashcraft v. De Armand, 44 Iowa, 223. Under the same circumstances, the mortgage of an insane person has been foreclosed. Insurance Company v. Hunt, 79 N. Y. 541; Crouse v. Holman, 19 Ind. 30. An insane person is civilly liable for his torts, but only in compensatory, not in vindictive damages. Morse v. Crawford, 17 Vt. 499; Krom v. Schoonmaker, 3 Barb. 647; Ward v. Comatser, 4 Baxter (Tenn.), 64. He is not, however, liable for libel or slander. 6 Humph. 199.

(a) State v. Spencer, 1 Zabriskie (N. J.), 207.

This

I may here say a word upon the subject of drunkenness. is not regarded by the law as insanity, though it may lead to it. Hence mere intoxication is no excuse for crime; though where a particular state of mind must exist in order to constitute a crime, it may perhaps be taken into view in determining whether such state of mind existed. But as to contracts, the rule now is, that if a man be so drunk at the making of a contract as not to know what he is about, the contract is void. (a)

As to deaf and dumb persons, it by no means follows that they are incapable of taking care of themselves. On the contrary, under the present provision made for educating them, they are enabled, by signs and by writing, to do almost every thing which persons blessed with speech and hearing can do. Of course, the fact of being deaf and dumb does not of itself invalidate civil acts, nor excuse crime. Our statute, however, provides for such as are incapable of managing their affairs, in the same manner as for idiots and lunatics.

The substance of our statutory provision is this: (6) Upon application to an associate judge, by any relative, overseer of the poor, or other inhabitant of the township, he is empowered to call a jury of five persons, not of the same township, to hold an inquest. If the jury find that the person complained of is an idiot or lunatic, they certify whether he is a pauper or not, and whether he ought to be confined or not. If they find that he is an idiot and pauper, he is committed to the charge of the overseers of the poor. If they find that he is a lunatic and pauper, and ought to be confined, he is committed to jail until he can be received into the lunatic asylum. If they find that he is an idiot or lunatic, but not a pauper, and not requiring confinement, the associate judges appoint a guardian (c) to take charge of the person and property of himself and his children. When a person indicted for homicide is acquitted on the ground of insanity, the jury are to specify this in their verdict; and if the court think it would be dangerous for him to go at large, he is committed to jail until he can be received into the asylum. In all cases, when there is reason to believe insanity has ceased, provision is made to ascertain the fact by inquest, and restore the party to his rights.

§ 113. Powers and Duties of Guardians. (d) Any person may

(a) In England the rule as to the liability of a person upon his contracts or deeds made while drunk is the same as to his liability upon the same made while insane. Molton v. Camroux, 2 Ex. 487, 4 Ex. 17; Pollock on the Principles of Contract, pp. 76-82. In the United States the liability is generally the same. Morris v. Clay, 8 Jones, Law, 216; Jenness v. Howard, 6 Blackt. 240; Johns v. Fritchey, 39 Md. 258; Joest v. Williams, 42 Ind. 565; Bates v. Ball, 72 Ill. 108; Cavender v. Waddingham, 5 Mo. App. 457.

(b) Since 1853 this jurisdiction has been transferred to the probate court. (c) And such guardian may sue in his own name 1 West. Law Jour. 454. (d) Este v. Strong, 2 Ohio, 401; 6 id. 118; Ohio v. Humphreys, 7 id. pt. 1, 233; Davis v. Ford, 7 id. pt. 2, 104; Pedan v. Robb, 8 id. 227; Stall v. Macalester, 9 id. 19; Perry v. Brainard, 11 id. 442; Maxsom v. Sawyer, 12 id. 195; Bohart ». Atkinson, 14 id. 228; Davies v. Lowrey, 15 id. 655; State v. Sloan, 20 id. 327; Case v. Ohio, 10 Western Law Journal, 163; Wright, 119, 200, 390, 562, 657.

be a testamentary guardian, whom the testator may think fit to appoint. But no executor or administrator of an estate in which a minor is interested can be his statutory guardian. Guardians are required to give bonds with security, in such sum as the court shall determine, for the faithful discharge of their duty, before the letter of guardianship is granted; and being amenable for all their doings to the court appointing them, they are liable to removal on good cause shown. Within three years from their appointment, and at subsequent intervals of two years thereafter, guardians of minors are required to settle their guardianship accounts to the approval of the court, for which purpose they must be filed one term beforehand, and public notice thereof given by the clerk, in order that any person interested may file objections. The settlements thus made are final, unless the ward, within two years after becoming of age, see fit to question them by a proceeding in chancery. In case of neglect, a settlement will be enforced by citation and attachment. The compensation of guardians for their services is a matter wholly in the discretion of the court. The general rule is, that they cannot speculate for their own advantage with the funds of their wards; that all profits must be accounted for by them; and that if they neglect to make interest on money in their hands, without good reason, they are nevertheless chargeable with interest. If the delinquency be gross, they are chargeable with compound interest. (a) Their power over the persons of their wards, is the same as that of parents over their children, with this exception, that they cannot bind them out by indenture, without the approbation of the court. Their power over the personalty of their wards is the same as that over their own; except that they cannot bind their wards by future contracts, without special provision of law. Their power over the realty is not so extensive. They have the management of it, and of the rents and profits of it, and may bring trespass and ejectment in their own names; (b) but they cannot sell it, as they can personalty, without express leave of court; and this leave will not be granted unless the court is satisfied that such sale will be for the advantage of their wards, or is necessary for their maintenance. (c) Indeed, this is going further than is generally allowed. In most places, the realty of minors can only be sold for their maintenance; but here, by special provision, it may be sold for the purpose of making a better investment. The mode of proceeding will be described hereafter. On the whole, perhaps this is well; for it often operates injuriously upon the interests of the commu

(a) Armstrong v. Miller, 6 Ohio, 118; 2 Kent, Com. 231, and note. See post, § 177. Even after the ward's coming of age, the guardian is held to good faith, and a purchase of the ward's property after he or she comes of age, for an inadequate price, will be, per se, evidence of fraud. Eberts v. Eberts, 55 Penn. State, 110.

(b) They may lease, but such lease is terminable on the majority of the ward or the appointment of another guardian. Emerson v. Spicer, 55 Barb. 428; s. c. 46 N. Y. 594. See also Richardson v. Richardson, 49 Mo. 29.

(c) See Acts of April 12, 1858, and March 30, 1859.