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235 ; Wadsworth v. Sherman, 14 Barb.
1G9. Contra, in Pennsylvania, In re
Gangwere's Estate, 14 Pcnn. 417.
In Leonard v. Leonard, 14 Pick. 280,
the court said : — "It is suggested,
on the part of the defendant, that an
inquisition of lunacy in England is not
conclusive on the question of sanity ;
but it is a sufficient answer, that such an
inquisition is very diff'erent from the
proceedings in a court of probate under
our statute. The plaintiff insists that
the guardianship is conclusive of the
disability of the ward, in relation to all
subjects on which the guardian can act,
and that the only mode of preventing
this operation is by procuring the guard-
ianship to be set aside. And there can
be no question but that the judge of
probate has power to reconsider the
subject, and if it shall appear that the
cause for the appointment of a guardian
has ceased, or that the guardian is an
irnpropcr per.'^on for the office, the letter
of guardianship may be revoked. Mc-
Donald V. Morton, l" Mass. R. 543. In
the case of White v. Palmer, 4 Mass.



VOL. I.



28



R. 147, it was held that the letter of
guardianship was competent evidence
of the insanity of the ward, and the rea-
soning tends to show that it is conclu-
sive ; but this was not the question then
before the court. If this were not the
general principle of the law, the situation
of the guardian would be extremely un-
pleasant, and it would be almost im-
possible to execute the trust. In every
action he might be obliged to go before
the jury upon the question of sanity, and
one jury might find one way, and another
another. We are of opinion that as to
most subjects the decree of the probate
court, so long as the guardianship con-
tinues, is conclusive evidence of the dis-
ability of the ward ; but that it is not con-
clusive in regard to all. For example,
the ward, if in fact of suflScient capacity,
may make a will, for tiiis is an act
which the guardian cannot do for him.
But the transaction now in question
falls within the general rule." So j)ro-
ceedings in a court of equity, establish-
ing the lunacy of a party, are admissible
to pi'ove the lunacy in an action at law,
against third persons not a party to the
proceedings in equity. McCreight v.
Aiken, 1 Rice, 56. And creditors of an
obligor to a bond, if not interested in
the result, are competent witnesses to
prove the obligor's lunacy. Hart r.
Deamer, 6 Wend. 497. And to prove
a party's lunacy at the time of making
a contract, evidence of the state of his
mind before, at, and after such time is
admissible. Grant v. Thompson, 4
Conn. 203. Although the mere opinion
of witnesses not medical men, relative
to the sanity of a party, are not admis-
sable, yet their opinions, in connection
with the facts upon which they are
founded, may be. Grant v. Thompson.
4 Conn. 203; McCurrv v. Hooper, 12
Ala. 823.

(0 Sergcson v. Sealey, 2 Atk. 412;
Faulder v. Silk, 3 Camp.'l26. And the

[325]



314* THE LAW OF CONTRACTS. [BOOK I.

been held, that even where the statute expressly declares all
the contracts of a lunatic under guardianship void, or disa-
*bles him from entering into contracts, it is not the purpose
nor effect of such provision to annul his contract for neces-
saries, if made with good faith by the other party, and under
circumstances which justify the contract; (u) and if a lunatic
be sued, or a claim is made upon him, perhaps any person,
though not expressly authorized, may in his case, as in that
of an infant, make, in good faith, a legal tender for him,
which shall enure for his benefit.

Courts of law, as well as equity, afford protection to those
who are of unsound mind. They endeavor to draw a line
between sanity and insanity, but cannot distinguish between
degrees of intelligence. Against the consequence of mere
imprudence, folly, or that deficiency of intellect which makes
mistake easy, but does not amount to unsound or disordered
intellect, even equity gives no relief, unless another party
has made use of this want of intelligence to do a positive
wrongful act. (v)

In this country, where provision is made by statute that
persons of unsound mind may be put under guardianship,
this may be done upon a representation and request, either
of the authorities of the town in which he resides, or of his
friends or relatives, and after proper inquiry into the facts,
and into the evidence and character of the insanity. The
guardian so appointed gives bonds for the due management
and care of the estate and person of the insane. He then is
put in possession of the estate of his ward, and has the
general disposition and control of it.

Similar provisions are often made with respect to

SECTION II.
SPENDTHRIFTS.

In regard to these persons, the appointment of a guardian,
and the depriving them of all power over their own property,

same rule was recognizecl in Hart v. {v) Osmond v. Fitzroy, 3 P. Wms.
Deamer, 6 Wend. 497. See also Hop- 129 ; 1 Fonbl. Eq. 5th ed". 66 ; Lewis v.
son V. Boyd, C B. Monroe, 296. Pead. 1 Yes. Jr. 19.

(u) McCrillis v. Bartlett, 8 N. H. 569.
[326]



en. XIX.] PERSONS OF INSUFFICIENT MIND TO CONTRACT. 315

is generally put on the ground of a danger that they may
become chargeable to the town or other body corporate who
will be bound to support them if they become paupers. The
application must come, therefore, from the authorities of such
town; and set forth that the party, by drinking, gaming, or
other debauchery, is so spending and wasting his means as
to be in danger of becoming chargeable. Here also there is
to be a judicial inquiry into the facts, after due notice to the
alleged spendthrift ; and upon a finding of the facts in ac-
cordance with the petition, a guardian is appointed as before,
and after such appointment all contracts of the spendthrift,
except for necessaries, are void. Where a provision is made
for recording such complaint and petition in a public regis-
try, no valid contract, excepting as before for necessaries,
can be made by the spendthrift, after such record, provided
a guardian be subsequently appointed on the petition, (w)
And it has been held that the acknowledgment or new
promise of a spendthrift under guardianship is not suffi-
cient to take a former promise out of the statute of limita-
tions, (x)



(lo) It was held in Smith v. Spooncr,
3 Pick. 229, that the Massaciuisctts
statute of 1818, c. 60, wliich, in case a
guardian shall be appointed to a spend-
thrift, avoids " every gift, bargain, sale,
or transfer of any real or personal es-
tate," made by the spendtiirift after the
complaint of the selectmen to the judge
of probate, and the order of notice
thereon shall have been filed in the regis-
try of deeds, does not apply to promis-
sory notes. But tliis case is explained by
Shaiv, C. J., in Manson v. ITelton, 1.3
Pick. 208, as depending wholly upon
the construction of the statute of 1818.
(x) In Manson v. Felton, 13 Pick.
206, Shaw, C. J., said: — "The ques-
tion, then, is, whether a spendthrift, un-
der guardianship, is competent to make
a valid contract for the payment of mo-
ney. The plaintiff" relies upon Smith
w. Spooner, 3 Pick. 229, as decisive.
But we think that that case turns upon
a very diftcrent principle. That action
was brought upon a note executed after
a ''omplaint made by the selectmen, and
before the actual appointment of a
guardian. It depended, therefore, whol-
ly upon the construction of the statute



of 1818, providing that after sucli com-
plaint made, and a copy filed with the
register of deeds, every gift, bargain,
sale, or transfer of real or personal es-
tate, shall be void. It was decided on
the ground that before the actual ap-
pointment of a guardian there was no
disability to make contracts, except the
specific disability created by the statute ;
that such a disability ought not to be
extended by construction, being in de-
rogation of a general right and power of
persons over their own property; and
that the making of a promissorj' note
was not a gift, sale, or transfer of pro-
perty within tiie meaning of the act.
It is to be remarked that the disability
created by this act is to take efl'ect upon
a mere complaint, before any adjudica-
tion, or even inquiry into the trutli of
the facts charged, and before the ap-
pointment of a responsible officer com-
petent and bound to take charge of the
property, and provide for the wants of
the spendthrift and those dependent on
him. Tlicse considerations form a
marked distinction between the case of
an actual adjudication, conclusively
fixing the disability contemplated by

[327]



;16 THE LAW OF CONTRACTS. [BOOK I.



SECTION ni.

SEAMEN.

The reckless and improvident habits of seamen, and their
inability to protect themselves against the various parties with
whom they deal, have induced courts both of law and equity
to extend to them a certain kind of disability for their pro-
tection ; that is, certain contracts with seamen, taking away
their rights, or laying them under wrongful obligations, are
annulled. A number of statutes have been enacted both in
England and in this country in relation to the shipping arti-
cles, as they are termed, or the contracts by which seamen
engage their services for a voyage. The Act by which this
subject is principally governed at this time is that of 1813,
ch. 2. And it has been very distinctly decided that any sti-
pulations in shipping articles, which derogate from the gene-
ral rights and privileges of seamen, wall be held void in
admiralty, and to a certain extent at common law, unless it
shall be made apparent by proof on the part of the owner
that the nature and effect of such stipulations were explained
to and understood by the seaman, and an additional com-
pensation allowed him, fully adequate to all that he lost by
the stipulation. (ij) In the case of The Juliana, referred to by

the statute, and appointing a guardian elusion. Shearman v. Akins, 4 Pick,
to act in place of the person disabled, 283. And see Pittam v. Poster, 1 B. &
and the limited and temporary restraint C. 248; Ward r. Hunter, 6 Taunt. 210;
established by the statute of 1818, on (y) Brown v. Lull, 2 Sumner, 444;
the construction of which the case of Harden v. Gordon, 2 IMason, 541 ; 3
Smith V. Spooner was decided. But Kent's Com. 193; The Juliana, 2 Dod-
thcre are several expressions in the son, 504. In Brown v. Lull, supra,
opinion of the court, in that case, im- Story, J., speaking of the effect of a sti-
plying a distinction in their minds be- pulation in the shipping articles, which
tween the case of a person actually un- in that case was relied upon as con-
der guardianship, and that of a person trolling the right of the seaman to wa-
in relation to whom the incipient mea- gcs, said : — "It is well known that the
sures have been taken to establish such shipping articles, in their common form,
a guardianship. The court speak of are in perfect coincidence with the gene-
the note, made after complaint filed, but ral principles of the maritime law as to
before the appointment of a guardian, seamen's wages. It is equally well
as a note made " on the eve of a disa- known that courts of admiralty arc
bility to contract." And the closing in the habit of watching with scrupulous
remarks in the opinion of the Chief jealousy every deviation from these
Justice strongly imply the same con- principles in the articles, as injurious to

[328]



en. XIX.] PERSONS OF INSUFFICIENT MIND TO CONTRACT. 317

Judge Story in Harden v. Gordon, the true doctrine on this
subject is set forth by Lord Stoivell with great clearness and
force. The general principle in all these decisions is, that
where a man has made a promise to one who has taken a
wrongful advantage of his circumstances or his necessities,
he shall not be bound by such promise. And the same prin-
ciple has been enforced against seamen ; as where in the



the rights of seamen, and founded in an
unconscionable inequality of benefits
between the parties. Seamen are a
class of persons remarkable for their
rashness, thoughtlessness, and improvi-
dence. They are generally necessitous,
ignorant of the nature and extent of their
own rights and privileges, and for the
most part incapable of duly appreciating
their value. They combine, in a singu-
lar manner, the apparent anomalies of
gallantry, extravagance, profusion in
expenditure, indiflerence to the future,
credulity, which is easily won, and
coniidence, which is readily surprised.
Hence it is that bargains between them
and shipowners, the latter being per-
sons of great intelligence and shrewd-
ness in business, are deemed open to
much observation and scrutiny; for
they involve great inequality of know-
ledge, of forecast, of power, and of con-
dition. Courts of admiralty on this
account are accustomed to consider
seamen as peculiarly entitled to their
protection ; so that they have been, by
a somewhat bold figure, often said to be
favorites of courts of admiralty. In a
just sense they are so, so far as the
maintenance of their rights, and the pro-
tection of their interests against the
effects of the superior skill and shrewd-
ness of masters and owners of ships are
concerned. Courts of admiralty are
not by their constitution and jurisdic-
tion confined to the mere diy and posi-
tive rules of the common law. But
they act upon the enlarged and liberal
jurisprudence of courts of equity, and in
short, so f\ir as their powers extend,
they act as courts of equity. "Whenever,
therefore, any stipulation is found in
the shipping articles which derogates
from the general rights and privileges
of seamen, courts of admiralty hold it
void, as founded upon imposition, or an
undue advantage taken of their necessi-
ties and ignorance and improvidence,
unless two things concur; first, that the

28*



nature and operation of the clause is
fully and fairly explained to the sea-
men ; and secondly, that an additional
compensation is allowed, entirely ade-
quate to the new restrictions and risks
imposed upon them thereby. This doc-
trine was fully expounded by Lord Stow-
ell, in his admirable judgment in the case
of The Juliana, (2 Dods. R. 504) ; and
it was much considered by this court in
the case of Harden v. Gordon, (2 Ma-
son, R. 541, 556, 557) ; and it has re-
ceived the high sanction of Mr. Chan-
cellor Kent in his Commentaries, (iii.
§ 40, p. 193.) I know not, indeed, that
this doctrine has ever been broken in
upon in courts of admiralty or in courts
of equity. The latter courts are accus-
tomed to apply it to classes of cases, far
more extensive in their reach and ope-
ration; to cases of young heirs selling
their expectancies ; to cases of rever-
sioners and remainder-men dealing with
their estates; and to cases of wards
dealing with their guardians ; and above
all to cases of seamen dealing witii their
prize-money and other interests. If
courts of law have felt themselves
bound down to a more limited exercise
of jurisdiction, as it seems from the
cases of Appleby r. Dodd, (8 East, 300,)
and Jesse v. Roy, (1 Croinp. Jerv. &
Rose. R. 316, 32y, 339,) that they are,
it is not that they are insensible of the
justice and importance of these consi-
derations, but because they are restrain-
ed from applying them by the more
strict rules of the jurisprudence of the
common law, which they are called
upon to administer.'' In the case of
The Betsy & Rhoda. in the District
Court of Maine, (3 N. Y. Legal Ob-
server, 215,) it was held that a negotia-
ble note taken by a seaman for wages
will not extinguish his claim for wages,
nor his lien on the ship, unless he be
informed of this effect, and have addi-
tional security given him by way of
compensation.

[329]



318



THE LAW OF CONTRACTS.



[BOOK I.



course of a voyage they compelled the master to make a new
contract with them for liigher wages, by threats of deser-
tion, (z) And contracts made with pilots or salvors, under
circumstances of necessity, for exorbitant or unjust compen-
sation, have been set aside on the same principle. But, in
general, contracts respecting the wages of seamen will be
construed liberally in their favor, in all cases where there
may be room for such construction. As where by the usual
clause no seaman was entitled to his wages, or any part
thereof, wiiil the arrival of the ship at the port of discharge,
the words italicized are not construed as a condition prece-
dent, but only as determining the time and place of pay-
ment, (a)



(z) Bartlett v. Wyman, 14 Johns.
26i. In this case the court said that
the new contract made by the master
was not binding on him, because made
'• in contravention of the poHcy of the
Act of Congress of the 20th July, 1790.
This statute requires, under a penalty,
every master of a sliip or vessel, bound
from a port in the United States to any
foreign port, before he proceeds on the
voyage, to make an agreement in writ-
ing or print with every seaman or mari-
ner or board, with the exception of
apprentices or servants, declaring the
voyage, and term of time for which the
seaman or mariner shall be sliipped.
In the present case this was done, and
the rate of wages fixed at seventeen
dollars per month for the whole voyage.
To allow the seamen, at an interme-
diate port, to exact higher wages, un-
der the threat of deserting the sliip, and
to sanction this exaction by holding the
contract, thus extorted, binding on the
master of the ship, would be not only
against the plain intention of the sta-
tute, but would be holding out encou-
ragement to a violation of duty, as well
as of contract. The statute protects the
mariner, and guards his rights in all
essential points ; and to jnU the master
at the mercy of the crew takes away
all reciprocity."

(a) Swift V. Clark, 15 Mass. 173:
Johnson v. Sims, 1 Tct. Ad. 21.5. And
in The George Home, 1 Hagg. Ad. 370,
on an engagement to go "from London

[330]



to Batavia, the East India seas or else-
ivhere, and until the final arrival at any
port or ports in Europe." It was Iteld,
that upon the arrival of the ship at
Cowcs for orders, (as previously agreed
between the oivners and master,) the sea-
men were not bound to proceed on a
further voyage to Rotterdam. But in
Webb V. Duckingfield, 13 Johns. 391,
where a seaman who had signed ship-
ping articles, by which he engaged
not to absent himself from the vessel
without leave, " until the voy-^gc was
ended, and the vessel was discharged of
her cargo," on the vessel's arriving at her
last port of discharge, and being there
safely moored, refused to remain and
assist in discharging the cargo, but ab-
sented himself without leave ; it was
held that by such desertion he had for-
feited his M-ages. — So mutinous and
rebellious conduct of the mariners, if
persisted in, forfeits their right to wa-
ges. Relf V. Ship Maria, \ Pet. Ad.
186. — So does desertion ; and the sta-
tute of the United States, declaring any
unauthorized absence of a seaman from
his ship for forty-eight hours to be de-
sertion, applies to all cases where the
seaman does not return within such
time, although he may have been pre-
vented by the sailing of the ship. For
the ship is not bound to wait for him,
but he is bound to rejoin the ship within
that period, suo periculo. Coffin r. Jen-
kin.s, 3 Story, 108.



CH. XIX.] PERSONS OF INSUFFICIENT MIND TO CONTRACT. 319



SECTION IV.
PERSONS UNDER DURESS.

A contract made by a party under compulsion is void ;
because consent is of the essence of a contract, and where
there is compulsion there is no consent, for this must be
voluntary, (b) Such a contract is void for another reason.
It is founded on wrong. The violence was itself an injury
to the party suffering it ; the party using the violence had no
right to do so, and cannot establish a right on his own
wrong-doing.

It is not, however, all compulsion which has this effect;
it must amount to durilies, or duress. But this duress may
be either actual violence, or threat, (c) And actual violence,
if not so slight as to be quite unimportant, is sufficient to
annul a contract made under its influence. Imprisonment,
in a common gaol or elsewhere, is duress of this kind; but
to have this effect it must either be unlawful in itself, or, if
lawful, then it must be accompanied with such circumstances
of unnecessary pain, privation, or danger, that the party is in-
duced by them to make the contract, (d)

(b) 1 Rol. Abr. 688, though, in fact, the plaintiff had no

(c) 1 Bl. Com. 131. cause of action. And although the im-
{d) Watkins i'. Baird, 6 Mass. 511 ; prisonmcnt be lawful, yet unless the

Eichardson v. Duncan, 3 New Ilamp. deed be made freely and voluntarily, it
508 ; Stouffcr v.Latshaw, 2 Watts, 167 ; may be avoided by duress. And if the
Nelson v. Suddarth, 1 Hen. & Munf imprisonment be originally lawful, yet,
350. — An arrest, though for a just if the party obtaining the deed detain
cause, and under lawful authority, yet the prisoner in prison unlawfully by
if it be for an unlawful purpose, is du- covin with the jailer, this is a duress
rcss of imprisonment. Severance v. which will avoid the deed. But when
Kimball, 8 New Hamp. 386. — In Wat- the imprisonment is unlawful, although
kins V. Baird, supra, Parsons, C. J., by color of legal process, yet a deed
observed : — " It is a general rule that obtained from a prisoner for his de-
imprisonment by order of law is not liverance, by him who is a party to
duress ; but, to constitute duress by ini- the unlawful imprisonment, may be
prisonment, either the imprisonment or avoided by duress of imprisonment,
the duress after must be tortious and In Allen, 92, debt was sued on a bond,
unlawful. If, therefore, a man, sujipos- and duress of imprisonment pleaded in
ing that he has cause of action against bar. The plaintiff had, on charging
another, by lawful process cause him to the defendant with felony in stealing a,
be arrested and imprisoned, and the de- horse, procured a warrant from a jus-
fendant voluntarily executed a deed for tice, on which the defendant was arrcst-
his deliverance, he cannot avoid such ed and imprisoned, and sealed the bond
deed by duress of imprisonment, al- to the plaintitf to obtain his discharge,

[331]



320



THE LAW OF CONTRACTS.



[book I.



Duress by threats exists not wherever a party has entered
into a contract under the influence of a threat, but only
where such a threat excites a fear of some grievous wrong ;
as of death, or great bodily injury, or unlawful imprisonment.
It is a rule of law, which is applied to many cases, that
where the threat is of an injury for which full and entirely
adequate compensation may be expected from the law, such
duress will not, of itself, avoid a contract, for the threatened
person ought to have sufficient resolution to resist the threat
and rely upon the law ; as where the threat is of an injury to
property, or of a slight injury to the person, [e) But no ver-



which was done, the horse appearing to
be his own horse. Roil, J., directed the
jury tliat the proceedings being had to
cover the deceit, tlie bond was obtained
by duress. And, in our opinion it is
a sound and correct principle of law,
when a man shall falsely, maliciously,
and without probable cause, sue out a
process, in form regular and legal, to
arrest and imprison another, and shall
obtain a deed from a party thus arrest-
ed to procure his deliverance, such deed
may be avoided by duress of imprison-
ment. Tor such imprisonment is tor-
tious and unlawful, as to the party
procuring it ; and he is answerable in
damages for the tort, in an action for
a false and malicious prosecution : the
suing of legal process being an abuse of
the law, and a proceeding to cover the
fraud. And althougli JBridgman, in
Lev. 68, 09, is made to say that impri-
sonment in custody of law by the king's
writ will not be duress to avoid a deed,
when the arrest is without cause of ac-
tion, because the party has his remedy
by action of the case, yet this must be
a mistake, as there is no remedy by
action for suing a groundless suit, un-
less the suit be without probable cause,
and malicious. And if it be, certainly
the imprisonment is wrongful, as to the
party who maliciously procured it." — In
Richardson v. Duncan, 3 New Hamp.
508, it was held that where there is an
arrest for improper purposes, without
just cause, or an arrest for just cause,
but without lawful authority, or an ar-
rest for a just cause, and under lawful
authority, for an improper pui-pose, and



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