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 *344ardent 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.