themselves or to acquire rights thereby. This disability is now removed by statutes in the several states, and with a few exceptions married women may contract as though single.

97. Persons mentally deficient.-Idiots, lunatics and imbeciles cannot make binding contracts. This follows from the nature of a contract. Persons having no mind cannot contract, for an act of mind is required. But as there are many degrees of mental unsoundness, varying from mere weakness of intellect to entire incapacity, it is sometimes difficult to say just what cases are void for lack of mental capacity.

In general, to invalidate the contract there must be such a mental disability as from its character and intensity disables the person from understanding the nature and effect of his acts. So mere mental weakness or disability from old age, if not to the extent just stated, will not invalidate a contract entered into by a party so affected. And even an insane adult may become liable for necessaries.31

The insanity, to avoid the contract, must exist at the time of entering into it, and though the party afterwards recover his mind, he may repudiate a contract made while insane. Though the mental incapacity be caused by the party's own fault, as by his drunkenness, he may still avoid the contract unless his intoxication was part of a scheme to defraud.

A lunatic is a person once of sound mind, but who has lost his mental capacity through sickness or acci

31 Hovey v. Hobson, 53 Me. 451; Richardson v. Strong, 35 N. C. 106; see subjects, PERSONS, QUASI-CONTRACTS.

dent. He may avoid all his contracts save those bona fide made for necessaries. The term "necessaries" here means the same as in the case of infants; that is, all proper things as well as indispensables. His contracts, except those for necessaries, may be avoided by his guardian or other representative if he were actually insane at the time of making the contract, though he was seemingly sane and no unjust advantage was sought to be taken of him.

The law aims to protect insane persons or those mentally incapable of caring for themselves, but not those who are merely ignorant or careless. So one who, lacking ordinary intelligence or shrewdness, makes a bad or foolish bargain, may not avoid it on the ground of his incapacity.32

Persons incapable by reason of extreme prodigality to preserve their property may be put under guardianship, and thus lose the right to make contracts. These are called spendthrifts. The same is true of habitual drunkards.

Seamen are protected by law from their own carelessness both as regards their person and rights. The United States Revised Statutes contain many provisions for their protection and benefit. And an agreement by a seaman to shipping articles which do not contain the general rights and privileges prescribed for such articles is void.

98. Aliens. An alien is a person born out of the jurisdiction of a country in which he lives, and not naturalized therein. By a rule of law and construction the children of ambassadors, ministers, etc.,

32 Clark, Contracts (2d ed.), § 117.

though born out of the jurisdiction of their country, are yet citizens. Furthermore, children born to citizens while temporarily sojourning in a foreign country are citizens of their parents' country, but they may elect to become citizens of the country where born.

Aliens at common law could not hold real property, and their right to personal property was precarious. The rights of aliens to hold real property are regulated by the statutes of the several states, and, with a few exceptions, where they have been limited as to the amount they might acquire in each county, they have the same right to acquire and hold property as citizens. The Congress of the United States has the power to confiscate the goods and properties of alien enemies, and in time of war may give the subjects of the power with whom the United States is at war a stated time to remove from our territory. Until so ordered out, aliens may sue and be sued in our courts, both in peace and war; but they must obey the laws and are amenable to all laws of the jurisdiction in which they live.33

During the war of the rebellion, the inhabitants of the Northern and Southern states were enemies, and all contracts made between them during the continuance of hostilities were void.34 Contracts existing before the war were not ended or void, but the remedy was suspended until peace was restored.35

33 Clarke v. Morey, 10 Johns. 68 (N. Y.); Brooke v. Filer, 35 Ind. 402; McVeigh v. U. S., 11 Wall. 259 (U. S.).

34 Masterson v. Howard, 18 Wall. 99 (U. S.); Mutual Ben. Life Ins. Co. v. Hillyard, 37 N. J. L. 444.

35 University v. Finch, 18 Wall. 106 (U. S.); Cohen v. New York Mutual Life Ins. Co., 50 N. Y. 610.

99. Professions.-The early English common law prevented barristers and physicians from suing for their services. These disabilities were never recognized in the United States, except in a regulative manner. Thus, statutes require physicians, attorneys, and brokers to be licensed before they may sue for services.36

100. Convicts. In the absence of statutory provisions, a convict may enter into contracts and sue or be sued thereon. But if a state statute suspends civil rights of convicts, his contract would be void. He may be sued by creditors, for although his civil rights are suspended, the rights of his creditors continue.37

101. Corporations.-A corporation is said to be an artificial or fictitious person. More properly, it is said to be an aggregation of individuals who are treated in law as one person. The corporation has the capacity to contract, even if the legislature has not expressly granted that power. But the corporate powers being limited, certain contracts are beyond its charter powers. Such are called ultra vires contracts. The enforcibility of such contracts is discussed in the article on corporations.

102. Power of a state to contract.-The power of the United States and the various states to enter into contracts within their respective functions is an incident to the general right of sovereignty. Thus, where the proper officers of the United States Treasury Department had taken from an agent a voluntary

36 Clark, Contracts (2d ed.), § 90.

37 Clark, Contracts (2d ed.), § 89.

bond for the faithful performance of his duties, it was held to be a binding contract between him and his sureties and the United States, even if there was no positive law requiring such a bond.38 "Upon full consideration of this subject," recites the opinion in the case cited, "we are of opinion that the United States have such capacity to enter into contracts. It is, in our opinion, an incident to the general right of sovereignty; and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers. "The same rule applies to contracts by state governments.39

The United States and the states have the same power to sue and to maintain actions on contracts made with them that an individual has. But neither the United States nor a state may be sued without its consent.40 The rule is the same as to foreign states or sovereigns."1

41

38 United States v. Tingey, 5 Pet. 115 (U. S.).

39 Danolds v. State, 89 N. Y. 36.

40 Michigan State Bank v. Hastings, 1 Doug. 225 (Mich.).

41 Mighell v. Sultan of Johore (1894), 1 Q. B. D. 149 (Eng.).

1