
    Wade and Massy, assignees of John Tutt, against Eli Colvert.
    caüohñulan¡rotube allowed to exone™te i'>°“ imprudent con-oneS'impeTfectbe incapable ot d.Ttteact'ií inaWntwMch Siffltinacon" Where a zoan wh° conveys all his creditors, and no consideration rAW“pi
    This was an action of trover, to recover for . . i • ' , conversion to his use, by the deiendant, of sun-7 v 1 dry head of cattle and hogs, &c. It was proved that the articles which were the subiect or the *> suit were, in the year 1812, and before and at the time of executing the bill of sale, hereafter tioned, in the possession of John Tutt, as hisprorru t i r* /¡i 7 perty. Inat m JVflay or Jane, 1812, Abraham., -T J J J 7 Perry, then Sheriff of Lancaster District, showed n , «-y* - . . , . a letter from John 1 utt, authorizing him to de« mand these articles of the defendant; which he did, exhibiting to the defendant his authority. The defendant refused to deliver them to him. The defendant did not deny ho had them, hut claimed them under a bill of sale from Tutt. The plaintiff proved that these articles were at the time of the demand all the property Tutt had in this state. That he had himself left the state, and that he was much in debt. The value the articles was proved, and an assignment from Tutt, under the insolvent debtor’s act, was given in evidence, which Vested them in the plaintiffs. Here the plaintiffs closed their testimony,
    The defendant gave in evidence a bill of sale from John Tutt to him, dated 20th March, 1812-To prove this hill of sale, John Crockett, the subscribing witness, was called, who stated, that ha did not see Tutt sign the bill of sale, or seal iif but that, in presence df the witness, he acknowledged his signature and seal, and delivered the deed; that at the time he was too much intoxicated to do business;, that, as the witness expressed himself, “ he was not compos mentis p that he had been in the same situation for some days before. There was no proof that any consideration for this transfer of property passed from the defendant to Tutt. The defendant attempted to show, that the consideration was the1 failure of quantity in the sale of some lands, but did not make out any satisfactory or plausible proof. The bill of sale, as originally drawn, did not express any consideration; but it had been altered, and a consideration was inserted in a manner which afforded suspicions that the alteration might have been made after the execution of it. The debt,, under which the plaintiffs claimed, was due by Tutt at the time the' bill of sale to the defendant was executed. On this evidence the Jury found a verdict for the defendant.
    The case was tried before Mr. Justice Cheves, at Lancaster, in the Fall Term, of 1818.
    The plaintiffs now move for a new trial:
    ' 1st. Because the bill of sale was fraudulently obtained, and void, as well between the parties as against creditors.
    2d. Because the property in the plaintiff, and the conversion by the defendant, were clearly 
      proved; and the verdict, therefore, against law and evidence.
   The opinion of the Court was delivered by.

Mr. Justice Cheves.

1st. The execution of this bill of sale was not such as to make it legally valid as between the parties. Intoxication will not be allowed to exonerate a man from his contracts, though it may be such as to lead him into imprudent and disadvantageous engagements; his liability must be the penalty of his vice. Were it otherwise, drunkenness would be the cloak of fraud: but where it is such as not to leave men the power of distinctly perceiving and assenting, they cannot be bound, because the very essence of a contract is the assent of the contractor to what he may be presumed to understand. Tutt, in this case, from the testimony of the subscribing witness, appeared to be in a state which left him incapable of knowing what he did, and scarcely in a state of consciousness. No man can, under such circumstances, bind himself: he cannot assent. This bill of sale, if these facts are to be believed, never had existence. It was, ipso facto, void.

The transaction, too, has many of the leading badges of fraud as against creditors. It was of all the debtor’s property which his creditors could reach. It appeared to be without consideration, and it was made when the debtor was much indebted. I think the evidence on this ground required a verdict for the plaintiffs; but on the ground of the invalid execution of the deed, I am clear there ought to be a new trial.

2d. The second ground stated in the brief does not present so good a case for the plaintiffs, and is almost sufficient to deny them the benefit of a motion for a new trial. The conversion proved, was previous to the commencement of the plaintiff’s title. A conversion is in its nature a fort, (2 Esp. N. P. 199,) and if the right founded on it be transmissible, it can hardly be contended that it vested in the plaintiffs by virtue of the assignment of the insolvent debtor’s estate. It will be probably perilous for the plaintiffs to rest their action again on the proof of a conversion which was given at the trial, which is now the subject of review. I am, however, of opinion, a new trial ought to be granted, for the reasons before assigned.

Grimlcé, JYott, Colcock, Gantt, and Johnson;, J, concurred.  