Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	debt_n	obligation_n	2,087	5	9.7560	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A29951	Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq.	Brydall, John, b. 1635?	1700 (1700)	Wing B5265; ESTC R19885	74,121	154

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 a●… the time of the entring into the said Bond he was No●… 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 no●… 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 D●… Cro. El. f. 398. Pl. 4. Stroud v. Marshal non sane memorie And i●… was thereupon demurre●… 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. Fo●… in such the Act and Wrong of a Mad-man shall not be imputed to him because in those Causes Actus non fac●… 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 sol●… 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

Stamfo●… 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 ●…aistre par quoy il nest my able a heritage demaunder ●…arner volons que tielz Heires de qui qu'il unques te●…ent malles femelles demoergent en nostre garde ovesque ●…out autres services que a luy appendent de terre tenue de ●…uy issint remeynent en nostre garde taunt come ils ●…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 pro●…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 ●…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 ●…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 ●… 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