COLEGATE D. OWINGS' CASE. 377

in this State. Therefore, whether it ought to be now received, or
rejected, must depend upon the nature of the reasons and the policy
by which it is sustained.

In England, it is said, that the progress of this notion is some-
what curious; and although it has *been handed down as settled
law, yet, that later opinions, feeling the, inconvenience of the rule,
have in many points endeavoured to restrain it.( j) 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.(k) 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.(I) It has been shewn from the most unquestionable
authority, that the ancient common law, without deviation, down
to about the year 1330, recognised 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 ;(m) 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 him-
self, (n) 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 marriage, as well as any other contract.(o) After the
most solemn and deliberate investigation, 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, (p)

Mere weakness of mind alone, without imposition or fraud,
forms no ground for vacating a contract. But if there be any
unfairness 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, recognise no legal distinc-

(j) 2 Blac. Com. 291; Thompson v. Leach, 3 Mod. 801; 1 Ld. Raym. 313;
2 Stra. 1104.—(fc) 1 Coll. Idiots, 406; Coop. Med. Jur. 877.—(J) 1 Fonb. 48.
(m) F. N. B. 466; 1 Pow. Cont. 19.—(n) 1 Lond. Jurist, 840.—(o) Turner v.
Meyers, 1 Hagg. Con. Rep. 414.—( p) Webster v. Woodward. 8 Day, 00; Rice v.
Peet, 15 John. 503; Horner v. Marshall, 5 Mun. 466.

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