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§ 180. Torts Against Infants. An infant has the same right as an adult to sue for injuries caused by the torts or wrongs of another.31 Such actions are governed by the ordinary rules of law, and, if the infant fails to exercise due care, his contributory negligence may bar his right of recovery. The due care required by law being due care under the circumstances of the case, a less degree of care will ordinarily be required of an infant than of an adult, and therefore an infant too young to be capable of exercising due care is held, as a matter of law, incapable of contributory negligence; and in general, only such care will be required of an infant as is due care in one of his years and experience.32 In some jurisdictions the negligence of the parent or guardian will be imputed to the child.33

A greater degree of care is required of an adult in dealing with an infant than with an adult.34 An adult who places a dangerous agency, which from its nature is attractive to children, where it is accessible to them, may be liable for injuries caused thereby, although the children are trespassers.35

§ 181. Infants as Parties to Actions. An infant cannot sue in person or by attorney, but only by guardian or next friend; and, when sued, he cannot appear in person, by attorney, or next friend, but only by a general guardian or by guardian ad litem. In most states this matter is now regulated by statute. Where an infant is sued, and appears by guardian ad litem, he is bound by a judgment at law or a decree in equity as fully as an adult.


§ 182. Insanity Defined. Insanity is "a manifestation of disease of the brain, characterized by a general or partial derangement or one or more faculties of the mind, and in which, while consciousness is not abolished, mental freedom is perverted, weakened, or destroyed." 37 The term is used broadly in the law to denote all kinds of mental alienation, and as synonymous with the phrase non compos mentis.38 Coke enumerates four classes of persons who are deemed in law to be insane or non compos mentis, namely: (1) An idiot or fool natural- that is, a person who has been of unsound mind since his birth; (2) he who was of good sound mind and memory, but, by the act of God, has lost it; (3) a lunatic, lunaticus, qui gaudet lucidis intervallis, who sometimes is of good sound mind and memory, and sometimes non compos mentis; and (4) one who is non compos mentis by his own

31. See 22 Cyc. 629; Tiffany Pers. & Dom. Rel. 403.

32. See 29 Cyc. 535; Tiffany Pers.

& Dom. Rel. 403.

33. See 29 Cyc. 552.

34. See 26 Cyc. 1173; 29 Cyc. 429. 35. See 29 Cyc. 447.

36. See 22 Cyc. 627, 634.

37. Black L. Dict. tit. "Insanity." 38. See 22 Cyc. 1109.

act, as a drunkard. The last class will be considered separately, for drunkenness is not generally understood as a phase of insanity in law, and in many respects the rules relating to insanity do not apply in the case of drunkenness. The status of an insane person is peculiar. As he is lacking in mind, he can, as a rule, do no act which requires an intelligent mental operation.39


§ 183. Guardianship. The guardianship of persons non compos mentis is provided for by statute in most jurisdictions. Generally, the probate or other similar court is given the power to appoint a guardian or committee of the persons and estates of insane persons, and in some states the power is extended to include drunkards or spendthrifts.40 Such guardianship is governed by substantially the same rules of law as the guardianship of infants.11 § 184. Contracts of Insane Persons. As a general rule, a contract entered into by a person when he is so insane as to be incapable of understanding its nature and effect is voidable at his option; but the rule is subject to the following exceptions: (1) Contracts created by law, or quasi-contracts, are binding. (2) He is liable for necessaries furnished to himself, or, by the weight of authority, to his wife and children. (3) In most jurisdictions, but not in all, he cannot avoid his contract where the other party thereto acted fairly and in good faith, without actual and constructive knowledge of his insanity, and the contract has been so far executed that the other party cannot be placed in statu quo.43 In most jurisdictions, but not in all, contracts by a person who has been judicially declared insane and placed under guardianship are absolutely void; and in a few states deeds and powers of attorneys, or other appointments of an agent, are held to be absolutely void 44

A voidable contract of an insane person may be ratified or disaffirmed by himself when sane, or by his guardian during insanity, or by his personal representatives or heirs after his death.45 By the weight of authority, the right to disaffirm is personal to the insane party or his representatives, and does not extend to the other party or to strangers. In a few jurisdictions the consideration received by the insane person need not be returned as a condition precedent to avoidance, if he is unable to return it, but the weight of authority is the other way; and in all jurisdictions it must be returned, if it can be.47


39. See, generally, 22 Cyc. 1169 et seq.

40. See 22 Cyc. 1120 et seq.; and supra, 164.

41. See supra, § 164 et seq.

42. See 22 Cyc. 1169 et seq., 1194 et seq.

43. See 22 Cyc. 1200-1206; Tiffany

Pers. & Dom. Rel. 418; Clark Contr.
(2d ed.) 178.

44. See 22 Cyc. 1171, 1198.
45. See 22 Cyc. 1209.

46. See 22 Cyc. 1210.

47. See 22 Cyc. 1210; Tiffany Pers. & Dom. Rel. 424; Clark Contr. (2d ed.) 184.

§ 185. Crimes and Torts of Insane Persons. We have already seen that, as a general rule, an insane person is not criminally responsible for his acts.48 This rule, however, does not apply to his torts. Generally, an insane person is liable for his torts, to the extent of compensation for the actual damage sustained by the injured party; but when the wrong involves personal capacity, and such capacity is impossible because of mental derangement, there can be no recovery; nor is he liable for punitive or exemplary damages. Thus an insane person is liable for the actual damage if he commits assault and battery or trespass upon another's land; but, according to the better view, he cannot be held liable for a tort of which malice is an essential element, such as libel or slander, or malicious prosecution, if he was so insane as to be incapable of entertaining malice.19


§ 186. Contracts of Drunken Persons. A contract or conveyance made by a person, when he is so drunk that he is incapable of understanding its nature and effect, but not otherwise, is voidable at his option; but, like an infant or insane person, he is liable on contracts created by law, and for necessaries. The rules as

to ratification and avoidance of contracts are substantially the same as in the case of infants and insane persons."



§ 187. Crimes and Torts of Drunken Persons. As we have seen in another chapter a drunken person is, with certain exceptions, criminally responsible for his acts to the same extent as if sober." A drunken person is also liable to individuals for his torts or wrongs to the same extent as if he were sober, except that the fact of drunkenness may mitigate the damages in some cases by excluding the question of malice; 52 and when it amounts to insanity, it may perhaps operate as a full defense, as far as insanity is a defense to an action in tort.53


§ 188. In General. An alien is a person born out of the jurisdiction of the United States, subject to some foreign government, and who has not been naturalized under their constitution and laws. Children of citizens of the United States born abroad are citizens, and not aliens.54 An alien domiciled in the United

48. See supra, § 90, c.

49. 1 Jaggard Torts 154, 155. See 22 Cyc. 1211, 1212.

50. See 14 Cyc. 1103; Tiffany Pers. & Dom. Rel. 435; Clark Contr. (2d ed.) 186.

51. See supra, § 90, d.

52. 1 Jaggard Torts 165; Tiffany Pers. & Dom. Rel. 437.

53. 1 Jaggard Torts 165.

54. See Tiffany Pers. & Dom. Rel. 440; 2 Cyc. 81; and supra, § 26.

States is subject to the laws of the United States and of the State in which he resides to the same extent as a citizen.55

An alien has the same rights as a citizen with respect to acquiring, holding, and disposing of personal property, and may contract in relation thereto and sue and be sued on his contracts.50 An alien may also sue and be sued for torts.57 At common law an alien cannot take and transmit land by descent.58 He can, however, take by devise or purchase, subject to the right of the State to enforce a forfeiture by inquest and office found. His title is good as against all persons but the State, and is good as against the State until office found.59 So also an alien can dispose of land acquired by purchase or devise, and his grantee or devisee will take a good title against every person but the State. The common law in this respect has been abolished in some States, and modified in others, by statute.61

An alien enemy cannot, without leave of the government, make any fresh contract or enforce any existing contract during the continuance of war between his government and the United States. Some courts require adherence to the enemy by a resident alien to disqualify him. He may be sued on existing contracts, and in such a case he may defend. Preexisting contracts are not dissolved by the war, but the remedy is merely suspended, unless they are of a continuing nature, and antagonistic to the rules governing a state of war. In England it has been held that an alien enemy cannot sue in tort, but it is possible that this rule does not obtain in the United States.63


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A. Corporeal and Incorporeal Hereditaments.

189. Corporeal Hereditaments.

190. Incorporeal Hereditaments at Common Law.

a. In General.

b. Advowsons and Tithes.

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g. Rents.

191. Incorporeal Hereditaments in the United States-Profits à Prendre, Rents, and Easements.

A. CORPOREAL AND INCORPOREAL HEREDITAMENTS § 189. Corporeal Hereditaments. Hereditaments, under which term are included all forms of real property, are either corporeal or incorporeal. Corporeal hereditaments include all real property of a visible and tangible nature. To this species of property the common law applies the term "land"; but land, in this sense, includes, not only the soil itself, but also all houses or other buildings erected thereon, as well as all other objects permanently annexed thereto. It extends down to the center of the earth and upward to the highest heavens.1

We have seen that the term "hereditaments" was used in feudal England to indicate such property as might be inherited; that is, such as was capable of passing to the heir, upon his ancestor's death, by operation of law. It will be shown later that the law draws a distinction between the descent of personal property and that of realty. The latter passes to the heir immediately upon the death of the ancestor, while the former goes temporarily to the personal representative, that is, the executor or administrator of the estate, and is distributed by him according to the directions in the will of the deceased, or, if there is no such will, as the statute of distributions provides. Inheritance is the result of the law casting upon the heir, by its own power, and without the intervention of any act of the parties concerned, an estate after the ancestor's death. This attribute of inheritability belongs only to real property, and it is often the criterion in determining whether certain kinds of property are to be classed as real or personal. Hereditaments comprise, in the main, therefore, im


1. Smith Elem. L. 158; 2 Blackstone Comm. 17, 18; Property," Cyc. -; and supra, § 69.

2. See supra, § 70.

3. Smith Elem. L. 158; and infra, § 233.

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