#### D. A. PARKER v. HENRY DAVIS.

An inquisition oflunaey is not conclusive against a person dealing with asupposed lunatic; but he may show that at the time of the contract, such supposed lunatic had sufficient capacity to make it.

(Oases of Arrington v. Short, 3 Hawks 71; Christmas v. Mitchell, 3 Ire. Eq. 533, and Hippy v. Gant, 4 Ire. 443, cited and approved. Case of Fessenden v. Jones, 7 Jones 14, cited and distinguished from this.)

*461Action of assumpsit for goods sold, and delivered, tried before Saunders, J., at tbe Spring Term, 1861, of Stanly Superior Court.

The defendant pleaded, specially, that he had a guardian, regularly appointed under a commission of lunacy. There was no contestation as to the sale and delivery of the goods, nor the price; and it appeared that they were of a proper kind, and useful for the subsistence of defendant and his family.

The defendant’s counsel produced the record of the inquisition of lunacy finding the defendant a lunatic and appointing to him a guardian, which was regular in form and not questioned.

The plaintiff then proposed to show, by witnesses, that at the time of the dealings, in question, the defendant was of sound mind. The evidence was objected to by defendant, but admitted by the Court: For which, defendant’s counsel excepted.

It was then stated by the witnesses, that the defendant had, for years, been in the habit of drinking spirits to great excess ; that when sober, he was a man of ordinary intelligence — capable of understanding what he was about and of making a contract; that for the last ten years, he generally came to town sober and went away drunk ; that he had a large family of children, and that the articles in question had been purchased either by his wife, or some one of his children, or by himself, when sober, and that they were family articles; that the account had been drawn off and given to the defendant, who, after taking it away, returned and said, £ all was right.’

The defendant’s counsel objected, that the suit could not be maintained against the defendant, as he had a regular guardian, and cited the case Fessenden v. Jones, 7 Jones 14.

His Honor charged the jury, that if they were satisfied the articles had been purchased by the defendant, or by his family, with his knowledge and approbation, when he was sober, and had sufficient capacity to understand the nature of the transaction ; that the account had been examined by him and *462admitted to be correct, he then having sufficient capacity to understand, they should find in favor of the plaintiff, but if the evidence failed to satisfy them as to the capacity of the defendant, their verdict should be for the defendant. Defendant’s counsel excepted to the former part of the charge.

Verdict and judgment for the plaintiff. Appeal by the defendant.

MeCorhle, for the plaintiff.

Ashe, for the defendant.

Battle, J.

We concur in the opinion expressed by his Honor in the Court below. An inquisition of lunacy is not conclusive, and a person who deals with the supposed lunatic may show that at the time when the contract was made, he had sufficient capacity to make it. This was expressly decided by the Court, in the case of Arrington v. Short, 3 Hawks, 71, and that decision has been confirmed by-the subsequent cases of Christmas v. Mitchell, 3 Ire. Eq. 535, and Rippy v. Gant, 4 Ire. Eq. 443.

The counsel for the defendant has referred us to the Revised Code, chap. 57, sec. 1, which enacts that guardians of lunatics shall have like powers, and be subject to like remedies on their bonds, as guardians of orphans, and he contends that all contracts for articles or for services intended for the benefit of lunatics, like those for infants, ought to be made with their guardians, and that if made with the lunatics, themselves, they are no more binding than such contracts would be if made with minors; Fessenden v. Jones, 7 Jones, 14. The analogy will not hold in cases like the present, because infants must necessarily remain such until they arrive at full age, when the guardianship of them terminates; but a lunatic may become of sound mind, and be capable of contracting for himself, and yet the guardianship may continue until another inquisition is found, by which he is declared to be of sound mind again. Besides, the provision in the Revised Code, to which reference has been made, was taken from the *463act of 1784, (Chap. 228 of Bev. Code of 1820,) which waslong before the decision, to which we have referred, was made. The finding of an inquisition and the appointment of a guardian for the defendant as a lunatic, not being conclusive upon the plaintiff, the testimony offered by him to show the capacity at the time when the goods were purchased, was properly admitted, and as no valid objection can be urged against the charge made thereupon by the presiding Judge, the judgu ment must be affirmed.

Per Curiam,

Judgment affirmed.