354 COLEGATE D. OWINGS' CASE.—1 BLAND.

Thompson v. Leach, 3 Mod, 301; 1 Ld. Raym. 313; 2 Stra. 1104.
This maxim has received the entire approbation of few of the
English lawyers, and, by many of them, it has been not only
questioned, but severely reprobated. 1 Coll. Idiots, 406; Coop.
Med. Jur. 377. It is alleged to have been set up in defiance of
natural justice and the universal practice of all the civilized
nations in the world. 1 Fonb. 48. It has been shewn from the
most unquestionable authority, that, the ancient common law,
without deviation, down to about the year 1330, recognized the
right of the party himself to rely upon and prove his own insanity
as a means of avoiding any contract made during his insanity.
F. N. B. 466; 1 Poic. Cont. 19. And in a case which was decided
about the year 1420, it appears that the plaintiff was permitted to
allege as the ground of the relief he asked and obtained, that he
was of great age, and that his discretion many times, and for the
most part, had passed away from him, and that the bargain had
been made when he was out of himself. 1 Lond. Jurist. 340. It
is said by one of the most eminent of the English Judges, sitting
in an Ecclesiastical Court, that it is perfectly clear in law, that a
party may come forward to maintain his own past incapacity, and
also that a defect of incapacity invalidates the contract of mar-
riage, as well as any other contract. Turner v. Meyers, 1 Hagg.
Con. Rep. 414. After the most solemn and deliberate investiga-
tion, this maxim has been rejected in Connecticut; and in New
York and Virginia it seems to have been put aside as unworthy of
the least consideration or notice. Webster v. Woodward, 3 Day,90;
Rice v. Peet, 15 John. 503; Homer v. Marshall, 5 Mun. 460.

Mere weakness of mind alone, without imposition or fraud,
forms no ground for vacating a contract. But if there be any un-
fairness in the transaction, then the intellectual imbecility of the
party may be taken into the estimate, to shew such fraud as will
afford a ground for annulling it. Courts of justice disclaiming all
pretension to measure men's capacities, recognize no legal distinc-
tion * but that which is drawn between persons of sound
378 mind, and those who are non compos mentis. All persons in
the former condition of mind, not otherwise disqualified, may
make a valid contract; but all contracts made by those in the
latter situation are deemed utterly void. 1 Fonb. 66. And yet,
according to this maxim, no man can be allowed to stultify him-
self; that is, to shew that he had not merely a weak mind, but that
he was absolutely non compos mentis. If a man be of ever so fee-
ble a capacity, short of lunacy, he may be allowed to prove that
fact; or, in other words, partially to stultify himself in connexion
with other circumstances, in order to shew that he had been de-
frauded. But if he be absolutely non compos mentis, he shall not be
permitted to prove that fact, or to stultify himself altogether;
although it would seem to be difficult to understand how the ob-