if an Action upon this be sued against him he hath nothing to plead for himself or to help him but to say that he was not of Sane Memorie at the time of such Discent c. And he shall not be received to say this for that no Man of full Age shall be received in any Plea by the Law to disable his own Person IX QUERY What kind of Privies can disable him who was deprived of the use of Reason and Understanding Or By whom and what Acts done by a Mad-man or one out of his Wits can be avoided SOLUTION It is to be known That the Disability to disable one's self as to some Persons is personal and extendeth only 4 Co. f. 124. a. Beverley's Case of Non compos mentis to the Party himself and as to other Persons is not personal but shall bind them also And as to that it is to be observed that there are four manner of Privities sc. Privity in Blood as Heir 2. Privity in Representation as Executors or Administrators who as Mr. Littleton Sect. 337. Littleton saith represent the Person of the Testator or Intestate 2 Mar. Dyer 112. Acc. 3. Privity in Estate as Donee in Tail the Reversion or Remainder in Fee c. 4. Privity in Tenure as Lord by Escheat and two of which are Privies only may disable him who was Non compos mentis and avoid his Deeds Grants and Feoffments and two not For Privies in Blood may shew the disability of the Ancestor and Privies in Representation the Infirmity of the Testator or Intestate But neither Privy in Estate nor Privy in Tenure shall so do And therefore if Donee in Tail being Non compos mentis maketh a Feoffment in Fee and dieth without Issue he in the Reversion or Remainder shall not enter or take advantage of the Non sane Memorie of the Donee The same Law of Lord by Escheat if his Tenant being Non compos mentis maketh a Feoffment in Fee and dieth without Heir he shall not avoid it But there are some Acts done by a Man of Non compos mentis which none of them shall avoid and therefore if a Furor Man levieth a Fine suffereth a Recovery or acknowledgeth a Statute or Recognisance neither his Heirs nor his Executors shall avoid it for these are Matters of Record which shall not be avoided by a bare Averment of Non compos mentis for the Inconvenience which may ensue thereupon Also such Averment is against the Office and Dignity of the Judge 18 E. 2. Fines 120. 17 Ass. Pl. 17. For he ought not to take any Conusance of a Fine or Recognisance of him who is Non compos mentis X. QUERY Whether a Man distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself SOLUTION A. bound himself in a Bond of 1000 l. to B. and this Bond being sued against him he exhibited a Bill in the Court of Requests to be relieved against the same and 4 Co. f. 124. a. Beverley's Case set forth in his Bill that aâ—… the time of the entring into the said Bond he was Noâ—… compos mentis and whether in this Case a Prohibition should be awarded was the Question And in this Case it was resolved That the same being against an express Maxim of the Common Law That the Party shall noâ—… disable himself that he shall not have Relief in any Court of Equity for that shall be in Subversion of a Principle and Ground in Law For the maintaining of this same Principle I will subjoin a Judgment given by the Judges of the King's Bench in the Case of an Action of Debt upon an Obligation and it was thus Debt upon an Obligation The Defendant pleads That at the time of the Obligation made he was Dâ—… Cro. El. f. 398. Pl. 4. Stroud v. Marshal non sane memorie And iâ—… was thereupon demurreâ—… and adjudged to be no Plea For he cannot save himself by such a Plea and the Opinion of Fitzherbert held to be no Law Wherefore it was adjudged for the Plaintiff XI QUERY Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murder and Petit Treason SOLUTION The Judges in Beverley's Case do affirm That a Man who is deprived of the use of Reason and Understanding shall not lose his Life for Felony or Murder because the Punishment of a Felon is so grievous sc. 1. To lose his Life 2. To lose his Life in such odious manner sc. By Hanging for he shall be hanged between Heaven and Earth as unworthy of both 3. He shall lose his Blood as to his Ancestry For he is a Son of the Earth without any Ancestor and as to his Posterity also for his Blood is corrupt and he hath neither Heir nor Posterity 4. His Lands 5. His Goods And in such Case the King shall have Annum diem vastum to the intent his Wife and Children shall be cast out his Houses pulled down his Trees eradicated and overthrown his Meadows ploughed up and all that he hath for Comfort Delight or Sustenance wasted and destroyed because that he in such felonious manner offended against the Law and all that was Ut poena ad paucos metus ad omnes perveniat But the Punishment of a Man who is deprived of Reason and Understanding cannot be an Example to others Secondly No Felony or Murder can be committed without a Felonious Intent or Purpose * 21 H. 7. 31. 26 Ass. 27 F. N. B. 202. Stamford's Plea of the Crown 16. 8. c. 9. But Furiosus non intelligit quid agit animo Ratione caret non multum distat a Brutis as †Bracton lib. 5. Tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40. nu 1. Bracton saith and therefore he cannot have a Felonious Intent Also for the same Reason Non compos mentis cannot commit Petit Treason As if a Woman Non compos mentis kill her Husband as appeareth 12 H. 3. Forfeiture 33. Vide Stamford f. 45. Kitchin 56. Tit. Forfeiture Edit 1651. Sir Edward Coke tells us That this Maxim That the Party shall not disable himself holdeth only in Civil Comment on Littleton § 405. f. 247. b. Causes but not in Criminal Causes as Felony c. Foâ—… in such the Act and Wrong of a Mad-man shall not be imputed to him because in those Causes Actus non facâ—… Reum nisi mens sit rea and Note The Mirror of Iustices says That King Alfred hanged Cole for giving Sentence of Death on one Ive when he was mad and distracted in his Wits c. 5. § 1. p. 297. Edit 1642. he is Amens i. e. 〈◊〉 mente without his Mind 〈◊〉 Discretion and Furiosus solâ—… furore punitur a Mad-man 〈◊〉 only punishd by his Madness Add hereunto what Plouden and the Author in his Exposition of the Terms of Law
Stamfoâ—… saith to this Point ' This Prerogative of the King quoth he to have the Custody of an Idiot begun in the time of King E. 1. as it should seem to him because he finds none that wrote of it before Britton for Bracton speaks but little Competit exceptio peremptoria tenenti ex persona petentis si petens fuerit non sanae mentis quod discernere nesciat vel omnino nullam habeat discretionem Talis enim non multum distat a Bruto quod Ratione caret Sed discussio hujusmodi exceptionis discretioni judicis relinquatur Bracton lib. 5. tract 5. c. 20. nu 1. of Idiots in his Fifth Book in the Title of Exceptions against the Plaintiff where he saith It is a good Exception for the Person of him that complaineth or bringeth any Action to say He is a Fool Natural because such a one differeth not much from a Beast that wants Reason But the discussion of such a kind of Exception is left to the discretion of the Judge Howbeit Britton f. 167. b. saith That the King ought to have this Prerogative herein for these be his very words Et pur ceo que ascun foitz avient que ascun Heir est Sot â—…aistre par quoy il nest my able a heritage demaunder â—…arner volons que tielz Heires de qui qu'il unques teâ—…ent malles femelles demoergent en nostre garde ovesque â—…out autres services que a luy appendent de terre tenue de â—…uy issint remeynent en nostre garde taunt come ils â—…urent en lour sotise Upon these words of Britton by the by Stamford notes three things 1. That the King shall not have the Custody during their Lives but during their Idiocy 2. That notwithstanding the Land is in the King's Hands yet the Lords shall have their Seigniories which is by way of Petition 3. That the other Lord shall not have the Wardship of the Heir nor of his Lands but only the King which third thing says he by the Statute of Prerogative is not so plainly set forth IV. QUERY Whether the Ter-Tenant shall be allowed to traverse an Office of Idiocy upon a Scire Facias brought against him by the King SOLUTION It was found by an Inquest of Office returned into Chancery that W. N. was seized of certain Mannors and they were held of the King in Chief and died 50 Ass. Pl. 2. Br. Gr. Abridgement Tit. Idiots seized and the Tenements descended to R. a Fool Natural from his Nativity as Son and Heir and that N held the Tenements Whereupon the King sued a Scire Facias against N. to shew Cause why the King should not seize the Lands into his Hands for the Idiocy of R. who comes and says That R. such a Day released all his Right to the Possession to M. at the making of which Deed R. was of good Memory which M. infeoffed him without that R. was a Fool Natural from his Nativity and it was not denied but that the Ter-Tenant may traverse the Office in this Form V. QUERY Whether there be any Diversity in the Case of the King to Answer either to the Tenure or to the Possession SOLUTION An Office was found 1 H. 7. 18 19. 2 H. 7. 3. Broke's Grand Abridgment Tit. Idiots that I. S. died seized of such Lands by Gift in Tail made to him which descended to W. his Son and Heir who was an Idiot and N. comes and traverseth the Office making Title Absque hoc quod dict J. S. fuit seisie proâ—…t c. the Day he died and it was found against the King And by Hussey and Fairfax the Case of Idiocy is not like to the Case of the Ward of Land and Heir For there the King shall answer to the Tenure but in the Case of an Idiot the King shall answer only to the possession For if an Idiot has Title to Land either by Entry or by Action if he has it not in possession the King â—…hall not have it and so Judgment was given upon the Traverse for the Issue was upon the possession and it matters not whether the Idiot had Right or not if he had not the possession VI. QUERY Whether an Idiot or Fool Natural can be bound by the Sale of his Goods in Market Overt SOLUTION Regularly the Sale by a Stranger in Market Overt bindeth an Infant a Feme Covert that hath Right Coke in his Exposition of the Stat. of 31 El. c. 12. f. 713. either in her own Right or as Executor or Administrator Idiots Non Compos Mentis Men beyond Sea and â—…n Prison that right have to the same VII QUERY Whether a Stranger may tender Money in performance of a Condition to save the Estate of an Idiot SOLUTION If an Heir be an Idiot of what Age soever any Man make the Tender for him in respect of the absolute Coke in his Comment on Littleton § 334. f. 206. b. disability and the Law in this Case is grounded on Charity And so in like Cases But note It is otherwise in the Case of an Infant for it has been adjudged Trin. 27 El. That where one Cro. El. f. 134. Watkins v. Ashwick tendred Money upon a Mortgage for an Infant who was not Guardian nor was to have any Interest in the Land that it was adjudged a void Tender Vide Co. Litt. f. 206. b. VIII QUERY If an Idiot or Natural Fool should make his Testament wisely and reasonably to the shew whether this Testament of his be good or not SOLUTION If an Idiot or Natural Fool should make his Testament so well and wisely in Apparence that the same may seem rather to be made by a reasonable Man than by one void of Discretion â—… some have been of Opinion that such a Testament is good and available in Law * Ita fuisse decisum in Senatu Romano Commemorant Io. And. And. Barba cum aliis in c. ad nostram de consuetud extra because Almighty God doth sometimes so illuminate the Minds of the Foolish that for that present in that Case they are not much inferiour to the Wise. And to this purpose divers credible Writers do remember a merry Accident which if they say truly was no Fable but an undoubted Fact * Io. And. panor Barba alii in C. ad nostram Hyero Franc. in L. Furiosi de Reg. Iur. D. Boer decis 13. n. 58. and this it is At Paris one Morning a hungry poor Man begging his Alms from Door to Door did at the last espy very good Cheer at a Cook 's House whereat by and by his Teeth began to water and the Spur of his empty and eager Stomach pricking him forwards he made as much haste towards the place as his feeble Feet would give him leave where he was no sooner come but the pleasant Smell partly of the Meat and partly of the Sauce did catch such sure hold of the
of this Land that they shall have the Custody of all the Lands of Natural Fools and may take the Profits Swinburn in his Treatise of Testaments and Last Wills 3. Part § 11. nu 13. p. 99. a. b. Edit 1590. thereof without waste oâ—… destruction of whose Fee soever the same be holden finding to them Necessaries and after the Death of such Idiots the Land must be restored to the right Heirs But in the mean time that is to say during the Life of the Idiot the Tuition of the Idiot or of his Lands cannot be devised by Testament to any other Person contrary to the Course of the Common Law in prejudice of him to whom the Wardship doth belong saving the Testator may commit the Custody of such Goods and Chattels as he doth bequeath to the Idiot to whom he will and during so long time as he will * Si quidem unusuisque potest rebus suis quam velit legem imponere Mautic l. 7. tit 1. nu 38. Et Testatoris voluntas habetur pro lege L. Servus de manumiss licet alias videatur per Fitzherbert's Nat. Br. de Idiots inquirendo quod bona quae Idiotae obvenirent suo Gardiano accrescunt Quaere tamen per Stamford super Praerogativam Regis c. Idiot C. XVI QUERY Idiocy whether in any Case triable in the Ecclesiastical Court SOLUTION If an Administrator sue for a Legacy due to the Deceased Mich. 15 Iac. B. R. Inter Percher Wheeble per Curiam Dr. Godolphin in his Repertorium Canonicum c. 11. p. 120. § 17. in the Ecclesiastical Court and the Defendant plead the Release of the Deceased and the Plaintiff avoid it for that the Deceased was an Idiot that Idiocy shall be tried there and no Prohibition shall be granted for that they have Jurisdiction of the Original Matter and that according to the old Rule to be found in the Register and in the Books of Law Non est consonum Rationi quod cognitio accessorii Cujus Juris i. e. Jurisdictionis est principale ejusdem Juris erit accessorium in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum noscitur pertinere Register Orig. f. 58. a. Co. 2 Inst. f. 493. Cro. Jac. f. 269. Roberts Case Cro. Car. Netter v. Bret. Cro. Jac. f. 348. Egerton v. Egerton 12 Co. f. 65. Tit. Court Ecclesiastical C. Bulâ—…rode's Reports Second Part f. 210 211. Egerton v. Egerton XVII QUERY An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrerages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant SOLUTION Anno 35 H. 8. in the Exchequer Chamber a Case was well debated by the Justices 3 4 Eliz. Dyer f. 203. b. 204. a Co. lib. 8. f. 144. Drury's Case of both Benches which was â—…uch One Moyer who was Executor of the Testament of Iohn Gisors sued a Writ of Account against one Carvanel as Receiver of the Money of the said Gisors the Defendant pleads Ne unques Receiver pur Accompt render And it was found for the Plaintiff and Judgment given that he should account and upon this a Capias ad Computandum was awarded Whereupon the Defendant came in and Accounts in Ward and he was found in Arrerages and his Body was committed to Prison for Execution And after the said Testament was annulled by Sentence in the Spiritual Court for that the said Iohn Gisors the Testator was an Idiot from his Birth and this Record Spiritual is certified into the Chancery by Writ and thence sent into the King's Bench where the Action of Accompt was brought And the said Carvanel sued forth an Audita Querela in the same Court containing this Matter in his Writ and a Venire Faciaâ—… against Moyer who demurred in Law upon the whole Matter And it was resolved that the Audita Querelâ—… did lie because the Will was disapproved and annulled XVIII QUERY Whether an Attornment made to a Grant by an Idiot 〈◊〉 other Non compos mentis can be good in Law SOLUTION A Man that is an Idiot or other Non compos mentiâ—… cannot Attorn For he who is Amens without Understanding cannot make an Attornment which is an Agreement And yet if a Man Non compos mentis be Lesse for Years rendring Rent and the Lessee ejecteth him and maketh a Feoffment and afterwards the Non compâ—… mentis re-entreth this Act of Re-entry doth subject himself to Distress and an Action of Waste altho' he cannâ—… make an express Attornment Coke in his Comment oâ—… Littleton sect 566. f. 315. a. 6 Co. 69. a. Sir Moyle Finchâ—… Case 32 E. 3. Age 80. 18 E 3. 35. XIX QUERY Whether an Inquisition shall bind an Idiot without an Examination by the Council SOLUTION It was said by Dyer in the Case of one Brent that the Law is Altho' a Man be found an Idiot by Inquisition Dallison's Rep. pl. 19. f. 95. yet he ought to be examined by the Counsel and affirmed by them to be an Idiot or otherwise he shall not be bound by the Inquisition And he said further That Brent was found an Idiot by Inquisition and after being examined by the Lords of the Star-Chamber he was adjudged to be no Idiot whereupon he was delivered from the Thraldom of Idiocy XX. QUERY No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it SOLUTION If there descend to an Idiot no Possession in Lands but only a Right be it Right of Entry or Title of Entry or Right of Action the King shall not enter and have the Custody of the same 1 H. 7. 15. Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. Hitherto of the Description Remarks and Queries relating to an Idiot or Sot Natural I proceed now to speak of the Furor Man that is totally bereft of his Wits PART the Second Of him who is by Accident wholly deprived of his Wits SECT I. This sort of Non Compos Mentis how described HE is said to be one that was of good and sound Memory and by the Visitation of God through some Sickness Grief or other Accident utterly loseth Furor est continuata mentis Alienatio qua quis omni intellectu caret D. 1. 18. 14. Gothofredus ad Lor. his Memory and Understanding and so falls into some high or low degree of Fury or Madness Co. Litt. f. 247. a. 4 Co. f. 124. b. Beverley's Case of Non compos mentis SECT II. The Remarks concerning Mad or Distracted Persons I. REMARK THE true Account of the Cause of Distraction is this When the Animal Spirits by some Accident or other are so over-heated that they become unserviceable Dr Goodman's Treatise entituled The Penitent pardoned under the Parable of the Prodigal Part 1. c. 5. p. 123 124.
NON COMPOS MENTIS OR THE LAW RELATING TO NATURAL FOOLS MAD-FOLKS and LUNATICK PERSONS Inquisited and Explained for Common Benefit By IOHN BRYDALL Esq of LINCOLN'S-INN SENECA Lib. XIV Epistolarum Epist. 94. Siquis furioso praecepta det quomodo loqui debeat quomodo procedere quomodo in publico se gerere quomodo in privatoâ—…â—…it ipso quem monebit insanior LONDON Printed by the Assigns of Richard and Edward Atkins Esquires for Isaac Cleave at the Star next Serjeants-Inn in Chancery-Lane 1700. THE AUTHOR TO THE READER SEeing there have been exposed to Publick View a couple of Tracts the one entituled The Woman's Lawyer and the other stiled The Infant 's Lawyer I have been induced to 〈◊〉 a Publication of this perexiguous â—…iece and have named it The Law of Non Compos Mentis It being no other than a Collection methodically digested of such Laws with the Cases Opinions and Resolutions of our common Law Sages as do properly concern the Rights of all such as are wholly destitute of Reason Some whereof are become so by a perpetual Infirmity as Idiots or Fools Natural Some who were once of good and sound Memory but by the Visitation of God are deprived of it as Persons in a high Degree Distracted Some that have their lucid Intervals sometimes in their Wits sometimes out as Lunatick Persons And some who are made so by their own Default as Persons overcome with Drink who during the time of their Drunkenness are compared to Mad-Folks All which Sorts of Non Compos Mentis are the Subject Matter of the ensuing Sheets I shall no longer detain the Reader from the perusal of them than by tendering him the good Advice given by an ingenious Author touching Witless Persons which is as follows Take no Pleasure in the Folly of an Idiot nor in the Fancy of a Lunatick nor in the Frenzy of a Drunkard make them the Object of thy Pity not of thy Pastime When thou beholdest them behold how thou art beholding to Him that suffered thee not to be like them This wholsome Counsel of his to embrace will be look'd on as an Act of Prudence But to reject it will be such a piece of Folly as will undoubtedly bring him that shall be guilty of it under the hard Sentence of our old English Proverb Let him be begg'd for a Fool. A TABLE OF THE QUERIES RELATING First To IDIOTS 1. IF the King commit the Body or Estate of an Idiot to J. S. to do with him as he pleases whether this Grant be good 26 2. Whether the King shall have the Mean Profits from the time of the first Seisure of the Idiot or from the time of the Office found 27 3. At what time was the Prerogative in the Custody of Idiots Lands conferred on the Crown during the Life of an Idiot or Natural Fool 29 4. Whether the Ter-Tenant shall be allowed to Traverse an Office of Idiocy upon a Scire Facias brought against him by the King 32 5. Whether there be any Diversity in the Case of the King to answer either to the Tenure or the Possession 32 6. Whether an Idiot or Fool Natural can be bound by the Sale of his Goods in Market Overt 33 7. Whether a Stranger may tender Money in Performance of a Condition to save the Estate of an Idiot 33 8. If an Idiot should make his Testament wisely and reasonably to the Shew whether this Testament of his be good or not 34 9. If an Idiot above the Age of 21 Years makes a Feoffment in Fee of his Inheritance how and in what manner that Feoffment may be avoided during his Life 39 10. A Fine levied by an Idiot what it operates 40 11. A Fine levied by J. S. Uncle of an Idiot who was seised of an Inheritance the said J. S. dying in the Life of H. the Idiot whether this Fine so levied can bar the Grand-Child of J. S. 42 12. Whether the Custody of an Idiot holding by Copy of Court-Roll belongs to the King by his Prerogative or to the Lord of the Copyhold Mannor 44 13. Whether there be any Difference between an Estate made in Person or by Attorney as to an Idiot or any other Non Compos Mentis 45 14. A Man dies seised of Land his Heir being an Idiot and before Office he levies a Fine whether the King shall have the Custody of the Lands or not 47 15. Idiots in the Custody of the Prince whether such Custody can be devised by the Testator 47 16. Idiocy whether in any Case triable in the Ecclesiastical Court 48 17. An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrearages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant 49 18. Whether an Attornment made to a Grant by an Idiot or other Non Compos Mentis can be good in Law 50 19. Whether an Inquisition shall bind an Idiot without an Examination by the Council 51 20. No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it 51 Secondly To Persons Furious or Distracted 1. WHether Madness or Insanity of Mind ought to be proved by him that objecteth the same 66 2. Madness before the making of a Testament whether it can be presumed to continue 67 3. Furor or Madness whether hard to be proved 68 4. Madness whether it may be proved by singular Witness 69 5. Whether the Grant of a Copyhold Estate made by the Lord of the Copyhold Mannor that is a Mad-man can be good in Law 69 6. A Mad-man being seised of Land and granting a Rent-Charge out of this same Land dies his Heir entring and the Grantee distraining for Rent-Arrears whether the Heir may bring an Action of Trespass 70 7. A Man of Sane Memorie seised of Land makes a Feoffment and after when he is besides himself or distracted makes a Letter of Attorney for Livery of Seisin which is executed accordingly the Feoffor dies whether the Heir may lawfully enter upon the Feoffee 71 8. Whether the Entry of the Heir of a Furor Man be lawful maugre a Descent had in the Life of his Ancestors 71 9. What kind of Privies can disable him who was deprived of the Use of Reason and Understanding Or by whom and what Acts done by a Mad-man can â—…e avoided 72 10. Whether a Man Distracted or out of his Wits be relievable in a Court of Equity to avoid a Deed made by himself 73 11. Whether this Maxim That the Party cannot disable himself shall hold good in Criminal Causes as Felony Murther and Petit Treason 74 12. If a Man while he is Non Compos Mentis destroys himself whether he can be said to be Felo de se 78 13. Whether he that is Non Compos Mentis and totally deprived of all Compassings and Imaginations can commit High-Treason