
    John Williams v. John Inabnet.
    Columbia,
    Jan. 1830.
    A bond may be avoided by the obligor, by proof that be was so drank, at the time of the execution, as to have been incapable of contracting : but too ready an ear should not be lent to such a defence ; and it should never be all'owed, where the subsequent conduct of the party is such, as to have . the appearance of his having confirmed his contract. If, for instance, l?e does not return what he received as the consideration of his contract, the instant he is restored to his senses, the jury may infer, that he intends it to bo confirmed.
    Tried before Mr. Justice O’Neall, at Edgefield, Fall Terra, 1829.
    This was an action of debt on a bond for titles to a tract of land, sold by the defendant, as agent of a free negro named Batch. Plea, non est factum. The defence was, that the defendant was so drunk, when the bond was executed, as to have been incapable of making a contract. Several witnesses testified, that he was in some measure intoxicated at the time, but all, except one, thought him sober enough to comprehend what ho was doing. The consideration of the bond was a note of William Wright for $400, a note of plaintiff for $200, and $25 cash, all of which was delivered to the defendant when the bond was executed. He afterwards, however, returned the plaintiff’s note.
    The presiding Judge instructed the jury, that if they believed the defendant to have been so drunk, when the bond was executed, as not to know what he was doing, they should find for him ; otherwise for the plaintiff.
    The jury found for the defendant; and the plaintiff moved to set aside their verdict, as contrary to law and evidence. Tried before Mr. Justice O’Nealu, at Newberry, Fall Term, 1829.
    
      Irp.v, for motion.
    Bauskett, contra.
    
   Colcock, J.

delivered the opinion of the Court.

I will not say that the verdict of the jury ought to have confirmed the contract, but it is clear, from the report of the presiding Judge, that there was evidence enough to have authorized such a finding. It is, perhaps, one of the most difficult questions which can be presented to a jury, to decide, how far the capacity to contract has been destroyed, by the too free uso of ardent spirits. But too ready an ear should not be lent to such a defence ; and in all cases where the subsequent conduct of the party making it, is such, as to have the appearance of his having confirmed the contract, the defence should not be allowed : for even if a man be so much intoxicated as not to Isjpow what he is doing, yet he may afterwards confirm the contract by his acts. If he does not intend to be bound by it, he should go the instant he is restored to his senses, and return all that he received as a consideration.

Now here, the plaintiff’s own note was returned, but not the other note, nor the cash, as far as we know from the report of the presiding. Judge ; and his reports are usually so accurate, so clear, and so full, as greatly to aid us in the discharge of our duty. It is said, however, on the other side, that they were returned. But we must be governed by the report of the presiding Judge, and if the papers and money were not returned, the question should have been submitted,' whether, supposing the defendant to have been so drunk, as not to know what he was doing at the time of. the contract, he did not afterwards confirm it.

Motion granted.  