It has been held that there must be a de gree of drunkenness which may be called ex cessive, where a party is so far deprived of his reason as to render himinCapable of hp derstanding the consequences• of his act; I. Case Threshing Mach. Co. v. Meyers, 78 Neb. 685, 111 N. W. 602, 9 L. It. A. (N. S.). 970; Conant v. Jackson, 16 Vt. 335; Johns v. Fritchey, 39 Md. 258; Reynolds v. De chaums, 24 Tex. 174, 76 Am. Dec. 101; Tay lor v. Purcell, 6& Ark. 606, 31 S. W. 567 ; Kuhlman v. Wieben, 129 Ia. 188, 105 N. W. 445, 2 L. R. A. (N. S.) 666; Drummond v. Hopper, 4 Harr. (Del.) 327; Fowler v. Wa ter Co., 208 Pa. 473 ; or where it is of such a degree as to make his mind similar to that of an idiot or a lunatic; Harbison v. Lemon, 3 Blackf. (Ind.) 51, 23'.Am. Dec. 376; when he is in such a condition as to be unable to understand the nature of the transaction; Ryan v. Schutt, 135 III. App. 554; or is de prived entirely of his reason; Bing v. Bank, 5 Ga. App. 578, 63 S. E. 652. It must be so extreme that the party sought to be charged was incapable of assenting; Wade v. Colvert, 2 Mill, 'Const. (S. C.) 26, 12 Am. Dec. 652 ; because the very essence of a contract is the assent of the .party; id.; Longhead v. Commiision Co.. 64 Mo. App. 559. That one may plead his intoxication in -avoidance of a contract is held in Johnson v. Harmon, 94 U. S. 371, 24 L. Ed. 271.
The leading English case is 13 M. & W. 623, which holds'that there is a class of con tracts from which a party cannot be releas ed, even by proof of complete drunkenness at the time they were entered into: This daft embraces transactions where the law raises the assent essential to their execution, Such as actions foi money had and received to' the plaintiff's, use or paid-by him to -the use,''/SO 'tradesm'an who sup plies a drdniien Mail with necessaries may recover the pike of them- if the party keeps them :When he becomes' sober, although a count for 'goods bargained and sold would fail. The :contract may ratified by •him When he beConles' sober ;- L. R. 8 Eich. 132, where 'it was said that the judges -in '13 M. &' W. 623, the word void, but that they did not mean: abOolutelY hut only that aa"drunkeit man's contract could not he en forced, against his will, not that it was in capable Of iatIgOntion; the same effect, McClure y. 1011011, 4 Brewst. (Pa.) RY...Light & POW& Co. v. Hin ton, 158 Ala. 470, 48 South:, 546; Eaton's' Adrift v. Perry, 29' 1VtO. 98; BrockWay v. Jewell, 52 Ohio St. 187, '39 N. E. 470 (hold ing a drunken man may be bound on an implied contract).
The contract of a drnakeri man is not void hut voidable only; 8 AM.' Rep. 251, note. 'See also 1 Ames, Oas., on Bills and Notes 556 ; Carpenter v. Rdfigers, 61 inch. 384, '28
N. W. 156, 1 Am. St. Rep. 505;, see RiCe Peet, 15. Johns. (N. Y.) 503; Idest v. liaani; 42 Ind. 565, 13 Am. Rep. ,377; v. Ball, 72 Ill. 108. The party must rescind the contract within a reasonable time aftql v. Water Co, 208 Pa. 473,' 57 Atl. 959; Shaw v. R.' Co., 126 App. Div. 210, 110 N. Y. Supp. 362 ; Kelly v. R. Co., 154 Ala. 573, 45 South. 906 ; Case Threshing Mach. Co. v. Meyers, 78 Neb. 685, 111 N. W. 602, 9 L. R. A. (N. S.) 970. If a person when sober agree to sign a contract, he can not avail himself of intoxication at the time of signature as a defence; Strickland v. Par tin & Orendorf Co., 118 Ga. 213, 44 S. E. 997; Fagan v. Wiley, 49 Or. 480, 90 Pac. 910. When carried so far as to deprive the party of all consciousness, a strong presumption of fraud is raised; and on that ground courts may interfere ; 1 Ves. 19 ; 18 id. 12 ; Thackrah v. Haas, 119 U. S. 499, 7 Sup. Ct. 311, 30 L. Ed. 486; Jones v. McGruder, 87 Va. 360, 12 S. E. 792. In equity it is not so much the drunkenness of one party as the fraud and imposition of the other; Cook v. Bagnell Timber Co., 78 Ark. 47, 94 S. W. 695, 8 Ann. Cas. 251; Calloway v. Witherspoon, 40 N. C. 128. Drunkenness in such a degree as to render the testator unconscious of what he is about, or less capable of resisting the in fluence of others, avoids a will; Shelf. Lun. 274, 304; Dimond's Estate, 3 Pa. D. R. 554; but not if at the time the testator could com prehend the nature of his act ; Bannister v. Jackson, 45 N. J. Eq. 702, 17 Atl. 692.
In actions for torts, drunkenness is not regarded as a reason for mitigating damag es ; Co. Litt. 247 a; Webb, Poll. Torts 59: n. See Hanvey v. State, '68 Ga. 612. Courts of equity, too, have declined to interfere in fa vor of parties pleading intoxication in the performance of some civil act; but they haYe not gone the length of enforcing agreements against such parties ; 1 Story, Eq. § 232; Youn v. Lamont, 56 Minn., 216, 57 N. W. 478; 18 Ves. Jr. 12; 1 Ves. 19. "A drunk ard who is volantarias daimon," says Coke, "hath no privilege thereby : Whatever ill or hurt he doth, his drunkenness doth ag gravate it." Lawyers have occasionally shoWia a disposition, to distinguish between the guilt of One who commits an offence un consciously, though in consequence of vicious indulgence, and that of another who is ac tuated by malice aforethought and acts de liberately and coolly. In Pennsylvania, as early as 1794, it was remarked that, as drunkenness clouds the understanding and excites passion, it may be evidence of pas sion only, and of want of malice and design; Add. Pa. 257. See Meyers v. COm., 83 Pa.