day of January, 1855, on default, against the plaintiff's intestate. The officer returned an attachment of real estate, and that he made service on the defendant "by leaving a summons at his last and usual place of abode," &c.

The fourth error assigned is, that "The said Asa Leach, at the time that the officer's return of service of said writ upon said Asa Leach purports to have been made, and for a long time before that date, and from that time until his decease after the rendition of said judgment, was non compos mentis, and incapable of taking care of himself, and of managing his business affairs." To this assignment of error, the defendant pleads "in nullo est erratum," which plea is a confession of all errors in facts which are well assigned. The depositions in the case prove the fact, and it is expressly admitted, that the plaintiff's intestate at the times when, &c., was non compos mentis, as alleged in the writ. Is this such an error as requires us to reverse the judgment? It is a fundamental principle, in all good governments, that no man shall be condemned, civilly or criminally, without first having had an opportunity to be heard in his defence. Saint Paul was exceedingly happy to have an opportunity to answer for himself, touching the things whereof he was accused by the Jews, and it would have been a great loss to the world if he had been deprived of it.

This is an error not appearing on the face of the record. It is an error of fact, if error it is.

"But a reversal may take place for errors of fact, as when the defendant was a maniac, or non compos mentis, being legally incapable of making a defence, or when he was absent from the State, and had no actual notice of the suit, and was defaulted and judgment rendered at the first term, without a continuance as the statute requires." Smith vs. Rhodes, 29 Maine 361, and cases there cited.

In Mitchell et al. vs. Kingman, 5 Pick. 431, it was held that a person may plead that he was non compos mentis, or show it in evidence under the general issue, in avoidance of his contract. In Seaver vs. Phelps, 11 Pick. 304, the doctrine of the above case has been again declared to be sound, and the established law of

Massachusetts, notwithstanding some recent decisions in England, which seem to hold a different doctrine. In Grant vs. Thompson, 4 Conn. 204, the defence of insanity was admitted to an action on a promissory note.

In Seaver vs. Phelps, WILDE, J., says,—It is sometimes difficult to determine what constitutes insanity, and to distinguish between that and great weakness of understanding. The boundary between them may be very narrow, and, in fact, often is, although the legal consequences and provisions attached to the one and the other respectively are widely different. In the present case, however, this point is settled by the verdict, and no question is made respecting it." The same point is settled in the case at bar. The fairness of the defendant's conduct, if fair it was, cannot supply the want of capacity in the plaintiff's intestate.

While the courts have power to protect the property of a defendant who is temporarily absent from the State, against a suit of which he has not had notice, if they have no power to protect the property of an insane man against a suit when there has been no hearing, and no opportunity for a hearing, and no notice to a responsible party of the existence of the suit, it is to be regretted, to be lamented. It is said this specification is insufficient, that the original defendant was "non compos mentis" at the time when, &c. When the insanity is once established, or admitted to have existed, the fact carries all the other necessary consequences along with it. It follows that there has been no hearing; no legal party.

In King vs. Robinson, 33 Maine 123, the late C. J. SHEPLEY says, "The law does not appear to have imposed it as a duty to be performed by the plaintiff to ascertain the mental capacity of the defendant and to bring it before the Court for its consideration, that such a guardian" (ad litem) "may be appointed." But with all due respect, it seems to us that reason and justice and safety do impose such a duty upon the plaintiff in a case like the present. In 1 Mass. 341, SEDGWICK, J., says,-" Although the Court cannot know the fact," (of absence from the State,) "otherwise than by suggestion entered on the record, yet, if the plaintiff will take judgment, he does it at his peril. It was his duty to make the

suggestion, and, in practice, it was always made, if made at all, under the former statute, by the plaintiff; for who else could make it? Not the defendant surely; for he is supposed to be wholly ignorant of the existence of the suit." Again, "the statute is against the common law, (by which personal notice is always necessary,) and, therefore, ought to be construed strictly. And it is of very great importance that judgments rendered against persons, who have not, in fact, had notice, should not be binding, unless the Court, from the positive provisions of the statute, are bound to say they are." DANA, C. J., says,-"But who is to make the suggestion? The plaintiff, undoubtedly, and if he will take a judgment, he does it at his peril." If a plaintiff will take judgment against a man hopelessly insane, without a suggestion of the insanity to the Court, or notice to guardian or next friend, must he not do it at his peril?

Can he thus carve for himself, without regard to the rights of others?

In commenting upon the case of White vs. Palmer, 4 Mass. 147, Mr. Justice SHEPLEY says, "the error assigned was, that the original defendant was non compos mentis, and that White and Hall, long before the teste of the writ, had been legally appointed guardians, and that they had no notice of the suit. The judgment was reversed for that cause, but the case does not decide that the judgment would not have been legal, if the non compos had not been under guardianship." Upon this hypothesis, it would seem that the judgment was reversed because there had not been due courtesy exercised toward the guardians, not on account of a wrong and injury done to the non compos, and to his estate.

In Seaver vs. Phelps, before cited, WILDE, J., says, "The general doctrine, that the contracts and other acts in pais, of idiots and insane persons, are not binding in law or equity, is not denied. Being bereft of reason and understanding, they are considered incapable of consenting to a contract, or of doing any other valid act."

Actions may have been maintained against persons non compos for necessaries, as in Bagster et al. vs. The Earl of Portsmouth, 5

Barn. & Cres. 172, and Thompson vs. Leach, 3 Wend. 310. But this is an exception, and not the general rule. "If, then, idiots and insane persons are liable on their contracts for necessaries, they are certainly entitled to as much protection as infants. It matters not, however, how this may be, since the contract in question is not one for necessaries:" 11 Pick. 307. If the contract in this case had been for necessaries, and that had been a legal answer, the defendant in error should have pleaded the fact in bar of the writ.

"The Court will generally allow the defendant in error to come in and plead that the said judgment is not erroneous, in any matter of fact, in manner and form, &c., and tender an issue tc the country. With this plea, he may be required to file a specification, setting forth, in addition to a denial of the fact assigned for error, any other matter of fact in avoidance, on which he relies, tending to show that the judgment ought not to be reversed." 6 Met. 489.

It was held in Lamprey vs. Nudd, 9 Foster 303, that the fact that a person against whom a suit was commenced was, at the time of the service of the process upon him, a person of insane mind, and that he so continued until the time of the rendition of judgment, even if he appeared in person, or by attorney, or not at all, was good cause for reversing the judgment on error.

The case of King vs. Robinson seems to be relied upon by the defendant in error as decisive of this case. In that case, there was an appearance by attorney. In that case, it was not admitted, as it is in this, that the plaintiff in error was, at the time when, &c., actually non compos. While that question was suspended in doubt in the mind of the Judge, it would be a question addressed to his discretion, whether a guardian ad litem should or should not be appointed. But when it is once incontestably settled in the affirmative, it would be manifestly against first principles, for the Court to proceed to render judgment against a man or his estate, when he had no capacity to take care of himself or to employ some other person to do so.

In Hix v. Whittemore, 4 Met. 545, the error assigned was that,

at the time of the service of the said original writ, and at the time of the rendition of said judgment, the plaintiff in error was insane; and an issue was made to the jury. There was no intimation from the Court or counsel that the assignment was insufficient, if founded in fact.

The verdict was for the plaintiff in error, and was set aside on exceptions, on account of the supposed misdirection of the Judge as to the burden of proof, or as to the presumption of the continuance of the insanity, when once proved to have existed.

It becomes unnecessary to discuss the questions arising out of the other assignments of error; as we regard the fourth error assigned sufficient in law, and proved and admitted in fact.

Judgment reversed.

APPLETON, CUTTING, and DAVIS, Js., dissented.

TENNEY, C. J., RICE, MAY, and KENT, JS., concurred in the opinion.

Case came before all the Judges.

It seems well settled that contracts by lunatics and persons of unsound mind, as a general rule, are not binding. Lincoln vs. Buckmaster, 32 Vt. R. 652, and numerous cases there cited. But there are many exceptions to this general rule.

1. Where merchants, apparently sane, have purchased goods in the ordinary course of their business, and having disposed of them, in whole or in part, so that the goods cannot be restored to the seller, there is no question of the general liability upon such contracts, notwithstanding it should appear that the purchaser was in fact insane at the time of the purchase. Beals vs. Lee, 10 Barr 56; Molton vs. Camroux, 2 Exch. R. 502; S. C. 4 Id. 17. And the same rule extends to all cases where the seller has parted with his property in good faith, and it is not in the power of the lunatic to restore it. Even

courts of equity refuse to interpose to set aside the contracts of lunatics, unless the parties can be restored to their former condition, or the sane party has taken some unconscionable advantage in the bargain. Neil vs. Morley, 9 Vesey 478. The parties are left to their legal rights. Sageron vs. Leaky, 2 Atk. R. 412. The same rule extends to contracts made with infants. Farr vs. Sumner, 12 Vt. R. 28; Taft vs. Pike, 14 Id. 405; Wead vs. Beebe, 21 Id. 495. But the recovery in both cases should be upon the quantum meruit, rather than upon the contract.

2. Contracts for necessaries for the lunatic or his family are binding to the same extent, and much upon the same principles as similar contracts by infants. Thompson vs. Leach, 3 Mod. R. 310; Seaver vs. Phelps, 11 Pick. R. 304, 306. Some of the American cases go the length of holding, that no re