
    Duncan against M‘Cullough administrator of Findley.
    
    In Error.
    
      Monday, October 12.
    THIS was a writ of error to the Court of Common Pleas of Franklin county.
    The dedacontract was dence^ut'not ^!l\c't^vter,ang action was not
    lent, it is void, confirmed1 by any subsetfon™ or acts ** by which its fairness is acknowledged.
    In the Court below, it was an action on a joint and several promissory note, drawn by William Findley and Sterling Adams, in favour of Matthew Duncan, the plaintiff below, for 600 dollars, payable nine months after date. No bill exceptions, or statement of facts, having accompanied the record on the return of the writ of error to this Court, the circumstances of the case must be collected, as far as is practicable, from the opinion of the Court, which was filed of record, agreeably to the act of assembly of 24th February, jgQg
    The following points were stated, on which the Court were requested by the counsel for the plaintiff, to instruct the jury.
    1. That drunkenness is no ground to set aside a contract, unless it deprives a party of his reason and understanding.
    2. That where time is given for reflection and sobriety, if the party does not object to the contract, a court of equity will not set it aside.
    3. That where several months have elapsed, and the party does not complain, but on the contrary expresses his satisfaction with the contract, equity will not relieve against it.
    4. That if the jury were of opinion, that the property sold, would cover the amount of this note, or any part, taking into consideration the property already paid and delivered, the plaintiff was entitled to recover that amount, leaving the notes yet to be tried, out of the question.
    Charge of the Court of Common Pleas.
    “ The great question for the consideration of the jury is, whether strong circumstances of fraud have not been disclosed, and proof of a combination, in which the plaintiff was a party, to defraud the defendant’s intestate, William Findley. The plaintiff has been called upon, and notice has not been denied, that the inquiry as to the claim of the plaintiff would rest on shewing the equity of his demand, and the consideration on which the note, the subject of the demand, was founded. The jury have had a great variety of testimony; and the statements now produced to the jury, on each side, present the result, as it respects their different pretensions. The plaintiff insisting, that he has established his demand to the whole of the note now in suit, and the defendant, on the contrary, contending, that no money is due on the note now in controversy, nor due on those in suit now depending; but the jury are instructed to confine themselves to the suit before the Court and them; and from an investigation, conducted with impartiality, and the most careful consideration, to say, how much, if any thing, is due to the plaintiff, or to find a verdict for the defendant, if they are of opinion, that the plaintiff ought not to recover in this suit.
    “ In answer to the question proposed by the plaintiff’s counsel, the jury are instructed, that the drunkenness of one of the parties- is not sufficient to set aside an agreement, unless some unfair advantage is taken; but, that if a gross combination of fraud and deception, has been practised on the defendant, and it clearly appears to the jury, that the plaintiff has been a party to it, such fraud proved, will avoid any transaction to which it applies. In the present instance, the jury will consider the weight of evidence, and its operation in establishing the claim of the plaintiff, and the items on which his demand arises: the property delivered at Baltimore, and its operation are already submitted to the jury, that so far as any of the claims set up by the plaintiff, are honest and just, to account for and explain the consideration of the note, they ought to be received and admitted; if fraudulent and dishonest to be rejected. And the jury are also to consider the circumstances of the partnership purchase, and what Mr. Duncan received on-that account, if any thing, at Baltimore, in part of the amount of the purchase of horses from him, as well as the grain delivered, and money paid by the defendant’s intestate.
    “If, from the investigation, the result should be adverse to, and destroy the plaintiff’s demand, the Court is of opinion, that the intestate’s declaration, two or three months afterwards, that the plaintiff had used him well, and had been a father to him, and that he had not been cheated, would not of itself repel the defence, (if otherwise satisfactory,) which is now set up by the defendant.
    “ In the case of a contract, mere drunkenness, especially if time elapses, after the party becomes sober, and he acquiesces during that time, will not of itself, if there is no express evidence of an unfair advantage taken of him, avoid it. The observation and principle already stated, sufficiently answer all that the plaintiff’s counsel have requested to be answered by the Court, as matter of instruction to the jury.”
    The jury found a verdict for the defendant.
    
      Brozan and Crazvford, for the plaintiff in error.
    
      Riddle and Chambers, for the defendant in error.
    
      
      
        Vide ante, 480.
    
   The opinion of the Court was delivered by

Gibson J.

The charge of the Court has been filed under the act of assembly, but the evidence has not been brought up by a bill of exceptions ; so that very few of the facts appear on the record. It seems, however, the defendant gave evidence of a continued state of intoxication of the intestate, about the period when the note, on which the suit is.brought, was signed; and also of a conspiracy between the plaintiff and a certain Sterling Adams to defraud him, and by taking advantage of his state of inebriety to procure him to sign this, among other notes. To rebut this, the plaintiff gave evidence of declarations of the intestate, made three months, after the date of the note, that the plaintiff had used him well, had- been a father to him, and had not cheated him; and then prayed the Court to direct the jury, that when after a lapse of several months, time is given for sobriety and reflection to return, and the party does not object, but on the contrary expresses satisfaction with the contract, equity will not relieve. The Court was of opinion, that if there was fraud in fact, these deciarations would not of themselves defeat the defence set up. Now the question here was fraud or not. The declarations _ , . . , , , ... or the intestate were evidence, though not conclusive, that no fraud originally existed; they might be explained and shewn to have been made under a misapprehension of the true state of the fact, or undue influence of the plaintiff, acquired from extrinsic causes continuing to operate at the time. Hence it rested with the jury to decide, on a view of the whole, ground, whether the note in question had originally been obtained through fraud or not. But it is argued, that if it even were so obtained, still, those declarations made at a time when the intestate must be supposed to have recovered from inebriety, operated as a confirmation of the contract, and purged it of the original fraud. But were not the jury to judge, whether the original delusion, or any other, operated at the time of the declarations ? But take it, the intestate made the declarations with full knowledge of all necessary circumstances, while free from every improper influence, and it is clear they will not amount to a confirmation, for the case does not admit of it. The case of Chesterfield, v. Janssen, 2 Ves. 125. 1 Atk. 301, is cited by the plaintiff’s counsel, but I confess I cannot see with what hope of benefiting their cause. In that case, there was no imputation of fraud or moral depravity in the original transaction. Mr. Spencer obtained a loan from the defendant, on condition of paying double or nothing, on the event of his surviving the Duchess of Marlborough. The transaction was, without success, attempted to be impeached on the ground of usury; and as to its being an unconscionable bargain, obtained from a man forced by his necessities to anticipate an estate in expectancy, it was held this was obviated by giving, with full knowledge of all necessary circumstances, a new security in confirmation of the original transaction, when all embarrassment had ceased. The cause was most ably argued, and decided on great consideration, by Lord Hardwicke, assisted by able Judges ; it is, therefore, of great authority. Now, there was nothing like what Lord Hardwicke called actual fraud, arising from facts and circumstances of positive deceit, but only a sort of fraud arising from the circumstances, and the condition of the contracting parties; anda contract merely unconscionable, by reason only of the latter consideration, always admits of confirmation. Public policy is the ¡ground on which chancery protects men in necessitous circumstances, from, becoming the prey of those disposed to take advantage of the pressure of their wants; they are protected against themselves. But after a man’s embarrassments are removed, and he has ceased to be a fit subject for the protecting care of chancery, it is perfectly reasonable to permit him to validate that which was originally invalid from policy merely, and not on account of moral turpitude, in the adverse party. Where, however,, there has been actual and positive fraud, or the adverse party has acted mala fide, there can be no such thing as a confirmati on; what was once a fraud, will be always so. The reason of the distinction is, that a contract, infected with that kind of fraud which must be proved, and not presumed from the circumstances of the parties, is not merely .voidable, but void; and confirmation, without a new consideration, would be nudum pactum. If the transaction in Chesterfield v. Janssen, had been usurious, all the Judges agree, that no subsequent confirmation would have been available. Ardglasse v. Muschamp, 1 Vern. 237. Wiseman v. Beake, 2 Fern. 121, and Baugh v. Price, 1 Wils. 320, are express, that a contract positively fraudulent, cannot be confirmed by subsequent acts; and in Brooke, executor of Hobart v. Gally, 2 Atk. 34, Lord Hardwicke decreed a note to be delivered up, that had been given voluntarily by a person of full age, to a victualler for burgundy, champaigne, and claret, clandestinely furnished him when an infant at school.

There is another point which, as the evidence has not come up with the record, it is difficult to comprehend or decide. It would seem, however, evidence was given of mutual dealings, and the Court were requested to charge, that if the property sold to Findley would cover this note, or any part of it, the balance might be recovered in this suit. It appears to us, the Court did so instruct the jury. Findley had given the plaintiff other promissory notes, on which alone the defendant contended the balance of the general account, if any were due, could be recovered. The Court referred the jury to the statement exhibited on each side, and directed them to confine their attention. to the note in suit, and if any thing were due, to find a verdict for so much. On this ground then, the plaintiff had no right to except; but if the direction had been different, it might be right from every thing that ; for if at the time of executing this note, Findley were not indebted to the plaintiff, it would be void for want of consideration, and would not be recoverable, even though he afterwards became indebted. Having the evidence very imperfectly before us, it would be difficult to say, that any direction the Court might choose to give, was wrong. The judgment must be affirmed.

Judgment affirmed.  