suggestion, and, in practice, it was always made, if made at all, under the former statute, by the plaintiff; for who else could make it? Not the defendant surely; for he is supposed to be wholly ignorant of the existence of the suit." Again, "the statute is against the common law, (by which personal notice is always necessary,) and, therefore, ought to be construed strictly. And it is of very great importance that judgments rendered against persons, who have not, in fact, had notice, should not be binding, unless the Court, from the positive provisions of the statute, are bound to say they are." DANA, C. J., says, "But who is to make the suggestion? The plaintiff, undoubtedly, and if he will take a judgment, he does it at his peril." If a plaintiff will take judgment against a man hopelessly insane, without a suggestion of the insanity to the Court, or notice to guardian or next friend, must he not do it at his peril?

Can he thus carve for himself, without regard to the rights of others?

In commenting upon the case of White vs. Palmer, 4 Mass. 147, Mr. Justice SHEPLEY says, "the error assigned was, that the original defendant was non compos mentis, and that White and Hall, long before the teste of the writ, had been legally appointed guardians, and that they had no notice of the suit. The judgment was reversed for that cause, but the case does not decide that the judgment would not have been legal, if the non compos had not been under guardianship." Upon this hypothesis, it would seem that the judgment was reversed because there had not been due courtesy exercised toward the guardians, not on account of a wrong and injury done to the non compos, and to his estate.

In Seaver vs. Phelps, before cited, WILDE, J., says, "The general doctrine, that the contracts and other acts in pais, of idiots and insane persons, are not binding in law or equity, is not denied. Being bereft of reason and understanding, they are considered. incapable of consenting to a contract, or of doing any other valid act."

Actions may have been maintained against persons non compos for necessaries, as in Bagster et al. vs. The Earl of Portsmouth, 5

Barn. & Cres. 172, and Thompson vs. Leach, 3 Wend. 310. But this is an exception, and not the general rule. "If, then, idiots and insane persons are liable on their contracts for necessaries, they are certainly entitled to as much protection as infants. It matters not, however, how this may be, since the contract in question is not one for necessaries :" 11 Pick. 307. If the contract in this case had been for necessaries, and that had been a legal answer, the defendant in error should have pleaded the fact in bar of the writ.

"The Court will generally allow the defendant in error to come in and plead that the said judgment is not erroneous, in any matter of fact, in manner and form, &c., and tender an issue tc the country. With this plea, he may be required to file a specification, setting forth, in addition to a denial of the fact assigned for error, any other matter of fact in avoidance, on which he relies, tending to show that the judgment ought not to be reversed." 6 Met. 489.

It was held in Lamprey vs. Nudd, 9 Foster 303, that the fact that a person against whom a suit was commenced was, at the time of the service of the process upon him, a person of insane mind, and that he so continued until the time of the rendition of judgment, even if he appeared in person, or by attorney, or not at all, was good cause for reversing the judgment on error.

The case of King vs. Robinson seems to be relied upon by the defendant in error as decisive of this case. In that case, there was an appearance by attorney. In that case, it was not admitted, as it is in this, that the plaintiff in error was, at the time when, &c., actually non compos. While that question was suspended in doubt in the mind of the Judge, it would be a question addressed to his discretion, whether a guardian ad litem should or should not be appointed. But when it is once incontestably settled in the affirmative, it would be manifestly against first principles, for the Court to proceed to render judgment against a man or his estate, when he had no capacity to take care of himself or to employ some other person to do so.

In Hix v. Whittemore, 4 Met. 545, the error assigned was that,

at the time of the service of the said original writ, and at the time of the rendition of said judgment, the plaintiff in error was insane; and an issue was made to the jury. There was no intimation from the Court or counsel that the assignment was insufficient, if founded in fact.

The verdict was for the plaintiff in error, and was set aside on exceptions, on account of the supposed misdirection of the Judge as to the burden of proof, or as to the presumption of the continuance of the insanity, when once proved to have existed.

It becomes unnecessary to discuss the questions arising out of the other assignments of error; as we regard the fourth error assigned sufficient in law, and proved and admitted in fact.

Judgment reversed. APPLETON, CUTTING, and DAVIS, Js., dissented.

TENNEY, C. J., RICE, MAY, and KENT, Js., concurred in the opinion.

Case came before all the Judges.

It seems well settled that contracts by lunatics and persons of unsound mind, as a general rule, are not binding. Lincoln vs. Buckmaster, 32 Vt. R. 652, and numerous cases there cited. But there are many exceptions to this general rule.

1. Where merchants, apparently sane, have purchased goods in the ordinary course of their business, and having disposed of them, in whole or in part, so that the goods cannot be restored to the seller, there is no question of the general liability upon such contracts, notwithstanding it should appear that the purchaser was in fact insane at the time of the purchase. Beals vs. Lee, 10 Barr 56; Molton vs. Camroux, 2 Exch. R. 502; S. C. 4 Id. 17. And the same rule extends to all cases where the seller has parted with his property in good faith, and it is not in the power of the lunatic to restore it. Even

courts of equity refuse to interpose to set aside the contracts of lunatics, unless the parties can be restored to their former condition, or the sane party has taken some unconscionable advantage in the bargain. Neil vs. Morley, 9 Vesey 478. The parties are left to their legal rights. Sageron vs. Leaky, 2 Atk. R. 412.

Farr vs.

The same rule extends to contracts made with infants. Sumner, 12 Vt. R. 28; Taft vs. Pike, 14 Id. 405; Wead vs. Beebe, 21 Id. 495. But the recovery in both cases should be upon the quantum meruit, rather than upon the contract.

2. Contracts for necessaries for the lunatic or his family are binding to the same extent, and much upon the same principles as similar contracts by infants. Thompson vs. Leach, 3 Mod. R. 310; Seaver vs. Phelps, 11 Pick. R. 304, 306. Some of the American cases go the length of holding, that no re

every can be had against a lunatic, upon a contract express or implied, unless for necessaries. Seaver vs. Phelps, supra; Fitzgerald vs. Reed, 9 Sm. & Marshall: Pearl vs. McDowell, 3 J. J. Marsh. 658; 2 Greenl. Ev. 369; Lincoln vs. Buckmaster, supra.

The rule in regard to instituting legal proceedings against a lunatic is much the same as that which obtains in the case of infants; and there would seem to be more reason for a strict enforcement of it in the former case than in the latter, since infants, long before they get out of their nonage, are entirely competent to select counsel, and conduct the defence of a suit.

This subject is very elaborately discussed by WOODBURY, J., in Lang vs. Whidden, 2 N. H. R. 435, where the authorities, prior to that date (1822), will be found very extensively quoted, and the subject very learnedly discussed, and satisfactorily disposed of by the court. It is here said the guardian must be notified, in all cases, or the judgment will be erroneous.

The same rule has been adopted in many of the American States. Aldridge vs. Montgomery, 9 Ind. R. 302; Snowden vs. Danbury, 11 Penn. St. R. 522; 2 Barb. Ch. R. 387; Wright's Appeal, 8 Barr 57; 6 B. Mon. R. 239. But if one who is a lunatic be arrested or imprisoned in a civil suit, he is not entitled to his release on that account. guardian ad litem may be appointed, and the suit proceed. Bush vs. Pettibone, 4 Comst. R. 300; Aldrich vs. Williams, 12 Vt. R. 413.

A

There seems to be no good ground to question the decision in the principal case. The same rule has long been established in regard to judgments rendered against infants, without the appointment of guardians ad litem. 2 Saund. R. 212, n. 4; Castlemain vs. Moody, 4 B. & Ad. 90; see also Mason vs. Dennison, 15 Wendell 64; Wead vs. Marsh, 14 Vt. R. 77; Crockett vs. Drew, 5 Gray 399.

I. F. R.

In the Supreme Court of the State of New York, Oct. 22, 1862.

THE PEOPLE ex rel. THE HANOVER BANK v8. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY AND COUNTY OF NEW YORK.

[Before Ingraham, Barnard, and Clerke, Js.1]

1. By the second section of the Act of Congress, passed February 25, 1862, it is provided that "All stocks, bonds, and other securities of the United States, held by individuals, corporations, or associations within the United States, shall be exempt from taxation by or under State authority." The effect of this sec

1 We owe this case to the courtesy of INGRAHAM, P. J., for which he will accept our thanks.-EDS.

tion is to exempt from taxation, under the laws of this State, all stocks, bonds, and other securities issued by the United States after the passage of the act. 2. This Court is bound by the decision of the Court of Appeals, in the case of The People ex rel. The Bank of the Commonwealth, 23 N. Y. 192; (1 Am. Law Reg. N. S. 81), as to cases coming within its scope. By force of that decision, securities of a like nature, issued before the passage of the act in question, and owned by a resident of the State, are not exempt from taxation under State laws, if no unfriendly discrimination to the United States, as borrowers, is applied by the State law; and property in United States stock is subjected to no greater burdens than property in general.

3. Congress has no power, by retrospective legislation, to withdraw from State taxation stocks and other like securities, issued by the United States, already subject to such taxation, and so far as the Act of February 25, 1862, exempts, from State taxation, United States securities previously issued, it is extra constitutional and inoperative.

The relators, the Hanover Bank, having a capital of $1,000,000, were assessed at $908,119, the assessors having deducted from the capital the value of the real estate, and stocks in other corporations. The bank objected to this assessment, upon the ground that the bank owned stocks, bonds, and other securities of the United States to the amount of $896,560, and claimed to be entitled to have the amount reduced to $105,000. The Commissioners of Taxes and Assessments refused such application, and the case was brought to this Court on certiorari.

Charles Tracy, Esq., for relator.

H. H. Anderson and Greene C. Bronson, Esqs., for respondents.

By the Court.

INGRAHAM, P. J.-So far as the questions involved in this case were discussed and decided by the Court of Appeals, in the case of The People ex rel. The Bank of the Commonwealth, 23 N. Y. Rep. 192, we do not feel at liberty to express any opinions at variance therewith. That case must be understood as deciding that stock of the United States held by a corporation or by individuals may be taxed under the laws of this State, where such taxation is general as applying to all personal property, and no unfriendly discrimination to the United States stock is applied by the State law, or, in other words, that where the taxation was general on the