#### WILLIAM MORRIS et ux v. JOHN H. CLAY, Adm’r.

The modern decisions have qualified the old doctrine, that a man shall not be heard to allege his own lunacy or intoxication, and these are now held to ■ be a defense to acts done under their prevalence.

Action of debt, tried before Saunders, J., at the last Pa’ll Term of Person Superior Court.

The bond declared on was made by Long-, the defendant’s intestate, as a means of giving to the plaintiff’s wife (his sister) the sum called for in it, $500. The proof of its execution was unquestioned, but it was alleged that the intestate, at the time he made the bond, was non compos mentis, arising from extreme drunkenness and mental debility ensuing therefrom. There was evidence joro and con as to the state of Long’s intellect, and the only question, in the case, is, as to his Hon- or’s instruction as applicable to this evidence. The case states that the “ Court charged that the law did not consider drunkenness alone, a sufficient reason to invalidate, except when carried to such an excess as to deprive the party of all consciousness as to what he was then doing, and whatever may have been the law, the party was “ never” (now ?) allowed to stultify himself by showing he was not capable, from drunkenness, of understanding the act which he had done. In the present case, if the jury believed the bond had been written at the request of the deceased for the $500, with the view of making his sister a present, no matter what may have been *217his motive, and that he understood what he was doing, and did what he intended to do when he executed the bond, the jury should find for the plaintiff's. But on the other hand, if he did not have capacity of understanding what he was doing from the effects of hard drink or paroxysm of delirium tremens or any other cause, they should find for the defendant.” Defendant’s counsel excepted to the charge.

Verdict for the plaintiffs. Judgment and appeal by the defendant.

Heade, for the plaintiffs.

Fowle and Hill, for the defendant.

Pearson, C. J.

The charge of his Honor, when he comes to make the application of the law to the case, then being-tried, is supported by all the modern authorities, and he gives the defendant the full benefit of the law, as it is now understood to be, in opposition to the exploded dogma of the old law, “ that a man could not be heard to stultify himself.” Indeed, the only matter which has at all embarrassed this Court, arises out of the general remarks at the commencement of the charge, in which his Honor is made to say, “ whatever may have been the law, the party was never allowed to stultify himself.” This is inconsistent with the particular charge in reference to the case before him, but may be reconciled by the suggestion that the word “never,” was inserted by misprison in place of the word “now,” which, on examination, was the word first written by the clerk, and is crossed out. So, we are satisfied it ought to read whatever may have been the law, the party was now allowed to stultify himself; which is in exact accordance with what is said by Park B. in Gore v. Gibson, 13 Mees. and Wells. 623 : “The modern decisions have qualified the old doctrine, that a man shall not be allowed to allege his own lunacy or intoxication ; and total drunkenness is now held to be a defense.” See 1 Parson’s on Contracts, 310, note m.

*218 We feel warranted in understanding from the whole record, that such was the charge of his Honor. There is no error.

Per Curiam,

Judgment affirmed.