by Compassing and Imagining the Death of the King 79 14. Whether a Mad-man be punishable in Trespass 83 15. Whether a Furor Man can be a Purchaser 84 16. Whether the Will of one that afterwards becomes Mad or Distracted shall stand good in Law 84 17. Whether a Fine before a Iudge of Non sane Memorie or a Grant of an Office made by him be good in Law 86 18. A Mad-man makes an Exchange of his Lands with J. S. for other Lands and the Exchange is accordingly executed the Non sane Man dies whether his Heir can avoid this Exchange 86 19. Whether and in what Cases Lachess can prejudice an Idiot Mad-man or other Non Compos Mentis 87 20. Whether he that is a Furor Man can be appointed Tutor 89 21. Whether a King or other Sovereign Prince during the time of his Insanity of Mind be capable of making Peace 90 22. Whether it be lawful to speak Untruth to Mad-men 90 Thirdly To LUNATICKS 1. WHether the Testament made by a Lunatick during his mad Fits be valid in Law when he is come to himself 103 2. Whether a Testament can be made by a Lunatick Person betwixt his Fits 103 3. If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or not 104 4. Whether the Dying seised of a Bastard Eigne without Interruption shall bar the Right of a Mulier Puisne that is a Mad-man or a Lunatick 105 5. Whether a Lunatick can be prejudiced by Laches of suing Livery 106 6. Whether a Lunatick be punishable for hurting a Man 107 7. Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses 107 8. Actions touching a Lunatick's Lands whether they must be brought in his own Name 108 9. Whether the Lord of a Mannor can grant the Custody of a Copihold belonging to a Lunatick without a special Custom 109 10. Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding 110 11. Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can grant them over to the proper use of another Person 110 12. Whether the Committee of a Lunatick can grant Copyhold Estates 111 13. If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him 112 14. If a Man in Criminal Cases be suspected to counterfeit Madness or Lunacy how shall it be discerned whether he be mad or not 113 15. A Bargain by a Lunatick before the Lunacy found whether avoidable by being found a Lunatick with a Retrospect of several Years 115 16. Whether the View of Land according to the Statute of Westm. 2. c. 48. be grantable in all Cases to Infants to Men in Prison to Lunaticks or such-like 117 Fourthly To DRUNKARDS 1. WHether a Man's Drunkenness can be any good Plea in the Courts at Westminster either in Criminal or Civil Acts 122 2. A Drunken Person whether he may make a Testament 123 3. Such as violate the good Name of others with opprobrious Words through Weakness of their Brain either by Frenzy Drink or other Lightness how are they to be dealt withal 125 The Reader is desired to Correct these Faults before he begins Other minuter Faults of literal Errors and Pointings it is expected his Candor will pass over INstead of Doth the Law read Doth not the Law p. 2. l. 22. Instead of Br 4. r. Br. Idiot 4. p. 23. Instead of an Act r. a Tract p. 26. Instead of Thompson's Case r. Tourson's Case p. 27. Instead of any Man make r. any Man may make p. 34. Instead of a Man seised r. a Man died seised p. 47. Instead of being seised of a Carve of Land in Fee r. being seised of a Carve of Land grant a Rent issuing out of the same Land in Fee p. 70. Instead of tuentur r. tenentur p. 77. Instead of de prodictionibus r. de actionibus p 72. Instead of detus r. vetus p. 94. THE LAW OF NON COMPOS MENTIS Inquisited and Explained BEFORE I come to Treat of the Law relating to persons of Non Sane Memorie I shall by way of Introduction shew the Reader upon what Right the Dominion of Infants Idiots and Mad-men is grounded In performance whereof I must be beholding to Hugo Grotius that Prodigy of Learning whose Words are these following If we respect saith he the Laws of Nature only no Right of Propriety can be admitted to those who have not the Use of Reason But Ius Gentium Lib. 2. Cap. 3. Sect. 6. De jure belli pacis the Law of Nations for the Common Good doth indulge this Favour unto Infants Idiots and Mad-Men that they may lawfully receive and retain the propriety of things All Mankind in the mean time sustaining their Persons For Humane Laws may constitute many things that were Preternatural but not any thing that is against Humana jura multa constituere possunt praeter naturam contra naturam nihil Nature And therefore that right of Dominioâ—… that in favour to such is by the unanimous consent of all Civiliz'd Natioâ—… thus introduced may haply consist with the first Acâ—… of Dominion which is a power to have and to holâ—… things in Propriety but not with the second Act which is freely and voluntarily to dispose of them with out a Guardian it being but Equal 〈◊〉 those that caâ—… not govern themselves should be govern'd by 〈◊〉 Aequum est ut qui se regere non potest regatur aliunde thers For as to the righâ—… of Alienation and thâ—… like because in their own Nature they imply the Act 〈◊〉 a Will guided with a Alienatio rerum solidum desiderat habere judicium Cassiodorus 11 11. Reason which Infants Idâ—… ots and Madmen havâ—… not Therefore 〈◊〉 〈◊〉 Law permit these 〈◊〉 unto them as to the 〈◊〉 and free Exercise of their Rights But here may be started a Question or two Quest. One whereof is this If there be found a Peâ—…ple that have no use of Natural Reason at all Whethâ—… all Right and Dominion may be taken from them Sol. It is not sufficient saith Grotius to justifie War to pretend that we were the first Discoverers 〈◊〉 any place in case it be possest tho' by Pagans and Inâ—…dels or by Men of dull Apprehension for to entitle our selves to be the first Founders 't is necessary that the Inventio est eorum quae nullius sunt Land so found should belong to none Neither is it necessary to Propriety or Dominion that a Man should be endued with Virtues Moral or a A true Maxim in Divinity Dominion is not founded in Grace Bishop Brownrig 1 Vol. of Sermons p. 50. And Amesius in his Cases of Conscience Lib. 5. Cap. 41. Qu. 1. Numb 7. Theological or to be of a quick Understanding yet may this seem to be justifiable That in case there
himself before the making of his Testament altho' he do not prove the Testator's Madness at the very time of the making of the Testament the Reason is It being proved that the Testator was once mad the Law presumeth him to continue still in that Case * Praesumptioni standum est nisi contrarium probetur D. 23. 3. 57. in fine D. 4. 2. 23. D. 12. 4. 6. 10. 2 Inst. 477. 10. Litt. 373 b. Bracton l. 1. c. 9. n. 4. Fleta l. 1. c. 6. unless the contrary be proved For like as the Law presumeth every Man to be an honest Man unless the contrary be proved and being proved then he which is evil to be evil still So concerning Furor the Law presumeth every Man to have the use of Reason and Understanding unless the contrary be proved which being proved accordingly then he is presumed in Law to continue still void of the use of Reason and Understanding unless the Testator were besides himself but for a short time and in some peculiar Actions and not continually for a long space as for a Month or more or unless the Testator fell into some Frenzy upon some accidental Cause which Cause is afterwards taken away or unless it be a long time since the Testator was assaulted with the Malady for in these Cases the Testator is not presumed to continue in his former Furor or Frenzy III. QUERY Furor or Madness whether hard to be proved And how it may be proved SOLUTION It is a hard and difficult Point to prove a Man not to have the use of Reason and therefore it is not sufficient Swinburn Part 2. § 3. f. 38. a. Edit 1590. for the Witnesses to depose that the Testator was mad or besides his Wits unless they yield a sufficient Reason to prove this their Deposition as that they did see him to do such Things or heard speak such Words as a Man having Wit or Reason would not have done or spoken namely they did see him throw Stones against the Windows or did see him usually to spit in Mens Faces or being asked a Question they did see him hiss like a Goose or bark like a Dog or play such other Parts as Mad-folks use to do This or the like Reason whereby the Judge may be induced to esteem the Testator not to be of sound Mind ought the Witnesses to yield altho' they be not interrogated of the Cause of their Knowledge IV. QUERY Madness whether it may be proved by singular Witnesses SOLUTION This Furor or Madness may be proved by singular Witness so that the Witnesses be not singular in Swinburn in his Treatise of Wills Part 2. § 3. f. 38. a b. time for if one Witness depose of the Madness of the Testator at one time and another Witness of his Madness at another time this doth not sufficiently prove that the Testator was mad But when the Witnesses agreeing in time one deposeth of one mad Prank another Witness of another mad Act at the same time these prove that the Testator was then mad tho' they do not both depose of one and the same mad Act But if some Witnesses do depose That the Testator was of perfect Mind and Memory and others depose the contrary their Testimony is to be preferred which depose he was of sound Memory as well for that their Testimony tendeth to the Favour and Validity of the Testament as for that the same is more agreeable to the Disposition of Nature for every Man is a Creature reasonable V. QUERY 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 SOLUTION It is to be known That any Person who may be a Grantor in a Deed may be a good Grantor of a Copyhold Estate For this any Person Coke of Copyholds f. 89. 4 Co. f. 23. Clerk Penifather's Case Sheppard's Court-Keeper's Guide cap. 19. p. 108 109 4th Edit 1656. 8 Co. f. 63. b. Swain's Case Man or Woman that hath a lawful Estate in a Mannor for a time may be a good Lord to grant Copyholds take Surrenders make Estates and Admittances according to the Custom of the Mannor notwithstanding the Disability of his Person or Exility of his Estate and therefore 't is held that an Infant an Excommunicate Person a Person Outlawed in an Action Personal a Felon before his Attainder by Outlawry Verdict or Confession a Lunatick or a Man distracted being Lord of a Mannor may grant Copyhold Estates for any time according to the Custom of the Mannor as another Man may do and the Estates made by them are unavoidable VI. QUERY A Mad-man being seized of Land and granting a Rent-Charge out of this same Land dies his Heir entring and the Grantee distraining for Rent-Arrear whether the Heir may bring an Action of Trespass SOLUTION If a Man Non Sanae Memoriae being seized of a Carve of Land in Fee and die and his Heir enter and the P. 12 E. 4. 8 H. 39. H. 6. Perkins § 21. Tit. Grants Grantee distrein for the Rent behind the Heir shall have an Action of Trespass but if the Grantee had distreined in the Life of the Grantor for the Rent behind the Grantor should not have an Action of Trespass for he cannot avoid his own Deed by disabling of himself VII QUERY A Man of Sane Memorie seised of Land makes a Feoffment in Fee and after when he is besides himself or distracted makes a Letter of Attorney for Livery of Seizin which is executed accordingly the Feoffor dies whether the Heir may lawfully enter upon the Feoffee SOLUTION If a Letter of Attorney to make Livery of Seisin is made of certain Land by a Man of unsound Memory 17 Ass. Pl. 17. Perkins § 23. Tit. Grants and the Charter of Feoffment of the same Land was made before when he was of good Memory and then Livery of Seisin was made by force of the Letter of Attorney without other Assent of the Feoffor and the Feoffor die now his Heir may enter upon the Feoffee but the Feoffor himself cannot enter VIII QUERY Whether the Entry of the Heir of a Furor Man be lawful maugre a Descent had in the Life of his Ancestors SOLUTION If a Man that is bereft of his Wits hath cause to enter into his Lands and Tenements Littleton Sect. 405. which another hath in Fee c. and suffers a Discent during the time he was out of his Wits and after dies the Heir of Non Sane Memorie may well enter upon him that is in by Discent for the Heir in this case can well disable the Person of his Ancestors for his own Advantage because no Latches can be adjudged by the Law in him which hath no Discretion in such case And yet his Ancestors which had the same Title could not enter For he who was out of his Memory at the time of such Discent if he will enter after such a Discent
Infant This Case being in the Chancery between the Parishioners and Rolt was referred by the Court to Hobart and Tanfield and they resolved clearly that it was within the Relief of the Statute of 43 Eliz. for tho' the Devise was utterly void yet it was within the Words limited and appointed to charitable Uses Otherwise if he were an Infant Lunatick or the like that gave it or that one appointed that that were not his own to charitable Uses VIII QUERY Actions touching a Lunatick's Lands whether they must be brought in his own Name SOLUTION One Cockes brought an Action of Trespass of Trover and Conversion of Beans against Darson and coming to Trial at the Assizes upon Hobart's Rep. 215. Cockes v. Darson Not Guilty because it was a small Cause the Judge took not the Jury but directed to move the Court and so it was and the Cause was That the Lands whereupon the Beans grew were a Lunatick's and Copyhold and the Lord had granted unto one the Custody of the Land by whose Leave and Assent the Plaintiff did sow the Land And the Court was of Opinion That the Action was to be brought in the Name of the Lunatick For there was no Interest gained in his Land by this Commitment That an Action must be brought in the Name of the Lunatick I shall subjoin what Popham has reported in the Matter The Custody of a Copyholder that was a Lunatick was committed to I. S. Popham's Rep. f. 141. Darcy's Case in the Common Pleas. and for Trespass done upon his Land it was demanded of the Court In whose Name I. S. should bring the Action And their Opinion was That it should be in the Name of the Lunatick IX QUERY Whether the Lord of a Mannor can grant the Custody of a Copyhold belonging to a Lunatick without a special Custom SOLUTION Lord Chief Justice Hobart did not agree That the Lord hath power over the Hobart's Reports f. 215 216. Cockes v. Darson Lunatick's Land without a special Custom for the imitation of the King's Power over Freeholds makes no Consequence For tho' he takes the Statute to be but an â—…ffirmance of the Common Law in the Case of the King â—…et the Collateral Incidents of Estates as Dower Tenancy 〈◊〉 the Courtesie Wardships and the like are not without secial Custom That Copyhold Estates shall not have such Qualities as â—…states at Common Law without special Custom See â—…ore 4 Co. f. 21. Brown's Case f. 22. b. Rivet's Case 〈◊〉 23 Deal Rigden's Case f. 23. Bullock Dibley's Case Cro. Eliz. f. 391. Pl. 14. Clun v. Pease and â—…urner and Palter v. Cornhill f. 361. Pl. 22. X. QUERY Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding SOLUTION The Acts that Lunatick Persons do during the time of their Lucida Intervalla tho' it be by Deed in the Country as by Feoffment Obligation or the like shall bind them and others concerned in it as any other Men are by their Acts bound Sheppard in his Abridgment Part 2. Tit. Idiot 4 Co. f. â—…125 a. Beverley's Case of Non compos mentis Bracton lib. 5. tract 5. de Exceptionibus c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40 n. 1. XI QUERY Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can granâ—… them over to the proper use of another Person SOLUTION In Trespass Quare clausum fregit and cutting hiâ—… Trees in Paddington in the Country of Middlesex bâ—… Iohn Francis against William Holms The Defendant Hil. 28. H. 8. Rot. 401. in the Common Pleas Francis Holms Case Dyer f. 25. b. 26. a. Pl. 164. Edit 1688. 4 Co. 128. b. Beverley's Case pleaded that it was found by Office before thâ—… Escheator of the said County of Middlesex that thâ—… said Iohn Francis was a Lunatick and that he was seizeâ—… in Fee of the Land in which c. for which the King seised his Person and his Land and by his Letters Patentâ—… granted the Rule Government and Custody of the same Person and Lands to the said Holmes Quamdiu that the Person was Lunatick to take the Profits to his own use and so justified and prayed in Aid of the King and thereupon it was demanded in Law If he should have Aid or not And it was adjudged That he should not have Aid of the King for this Grant was utterly void for the King is bound to keep the Lunatick his Wife Children and Houshold with the Profits of the Lands and without taking any thing to his own use but all to the use of the Lunatick and his Family and all to the intent that the King may provide that he who wanteth Reason should not alien his Lands and waste his Goods And the King after Office found hath only Provision and hath not any Custody of the Body or Lands of a Lunatick as he hath of an Idiot and he hath nothing to grant over But if the King provides one to have Care and Charge of him who is Non compos mentis that his Family shall be maintained and that nothing be wasted or if one of his own Head taketh so much upon himself in this Case he is but as Bailiff of him that is Non compos mentis and shall be accountable to him as Bailiff or to his Executors or Administrators and he cannot cut down Trees but for necessary House-boot Plough-boot and Cart-boot and to repair the ancient Pales and all that the Bailiff may do he may do and not otherwise XII QUERY Whether the Committee of a Lunatick can grant Copyhold Estates SOLUTION The Committee of a Lunatick cannot grant Copyhold Estates but he himself may do so by his Steward as appears by this subsequent Resolution A. seised of a Mannor for Life where there were many Copyhold Estates grantable Trin. 9 Iac. in the Court of Wards Blewits Case Leonard 47 48. by Copy of Court-Roll for Life in Possession and for another in Reversion granted the Stewardship by Deed under his Hand and Seal to I. S. for Life with a Fee for executing thereof and after he became a Lunatick and Non compos mentis and so was found by Inquisition who was committed to I. D. under the Seal of the Court of Wards The Question was Whether the Steward by the Consent of the Committee or the Committee himself by their Steward might grant Copyhold Estates according to the Custom of the Mannor It was resolved by Hobart Chief Justice and Tanfield Chief Baron That the said Committee could not grant any Copyhold Estate for that they themselves by Law had no Estate in the Mannor nor are Lords thereof for the time being but that the said Lunatick by his Steward might grant Copyhold Estates according to the Custom of the Mannor XIII QUERY If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him SOLUTION In the Reign of H.
Anâ—…rew as of one from whom he claims but only as â—…awing his Descent from him by way of Pedigree and â—…ot by way of Title and therefore it was compared to â—…obbes Case Litt. fol. where the Father is attainted of â—…elony having Issue two Sons and the one of them â—…urchaseth Lands and dies without Issue it shall not bar â—…e other Son to claim as Heir to his Brother And the Corruption of Blood in the Father shall not hurt him â—…nd Berkley compared it to the Case 10 Eliz. Dyer â—…74 where there were two Brothers the Eldest hath good Cause del petition de droit the Youngest hath â—…ssue a Son and is attainted of Felony and executed The Eldest Son dieth without Issue the Issue of the Younger Brother is barred of the Petition because his Blood is corrupt and he cannot claim but by mentioning his Father and from him c. But here forasmuch as he doth not claim nor derive by him who levied the Fine they field he should not be barred by the Fine XII QUERY Whether the Custody of an Idiot holding by Copy of Couâ—… Roll belongs to the King by his Prerogative or to 〈◊〉 Lord of the Copy-hold Mannor SOLUTION The King say the Judgâ—… Co. Lib. 4. f. 127. b. in Beverley's Case shall 〈◊〉 have the Custody of the Lands of an Idiot holden by Câ—…py for the same is but an Estate at Will by the Coâ—…mon Law And if the King should have the Custoâ—… thereof it would be mischievous to the Lord of the Maâ—…nor but yet an Alienation made by an Idiot of 〈◊〉 Copyhold-Land after Office found shall be avoideâ—… Vide 11 El. Dyer 302. It is a Rule in the Court of Wards That if an Idiâ—… has not any Goods or Châ—…tels or Lands but Copyhold-Lands Pasch. 13 Eliz. Iohn Roger's Case C. W. f. 74. held of a common Person the King shâ—… not have the Custody but the Lord of whom the Copy-hold is holden but if he has any other Land then thâ—… Copyhold-Land also In the Court of Wards it was clearly agreed by thâ—… Council of that Court That a Copyholder who 〈◊〉 13 14 El. Dyer 302. b. 303. a. 2 H. 7. 3. Noy 27. an Idiot ought not to bâ—… ordered in this Court foâ—… his Copyhold but shall be done in the Court of the Lorâ—… of the Mannor Sheppard in his Court-Keeper's Guide tells us That â—…e Lord shall retain the â—…opyhold-â—…opyhold-Land of the Idiâ—…t Cap. 19. p. 119. The Fourth Edit 1656. or Lunatick till he â—…ome to himself Note One Sir Edward Champernon being Committee 〈◊〉 a Ward who had a Mannor wherein were divers Copyâ—…olders amongst whom â—…e was Mutus Surdus Concerning such as are deaf and dumb See Bracton lib. 5. tract 5. cap. 20. n. 2. f. 421. a. Fleta l. 6. c. 40. nu 2. Instit. 2. 12. 3. D. 28. 1. 6. 1. Swinburn 2d Part § 10. Cod. 6. 22. 10. â—…ranted the Custody of that Copyhold-Land to another â—…ho entred the Prochein Amie of the Copyholder â—…ntred And which of â—…em should have the Custody Or If none of them â—…as the Question And it was resolved That the Lord â—…ould have the Custody for otherwise he should be â—…rejudiced in his Rents and Services and his Grant was Good Wherefore it was adjudged for the Grantee Cro. â—…ac f. 105. Eavers v. Skinner C. XIII QUERY Whether there be any Difference between an Estate made or conveyed in Person or by Attorney as to an Idiot or any other Non compos mentis SOLUTION There is a diversity taken in the Books of Law between an Estate made or conveyed in Person and by Co. l. 4. f. 125. Beverley's Case of Non compos mentis Attorney For if an Idiot or other Non compos mentis makes a Feoffment in Fee in propria persona and dieth his Heir within Age he shall not be in Ward or if he dieth without Heir the Land shall not Escheat but 〈◊〉 the Feoffment be made by Letter of Attorney altho' 〈◊〉 shall not avoid the same yet after his Death as to 〈◊〉 others in Judgment of Law the Estate was void anâ—… therefore in such Case if his Heir be within Age he shaâ—… be in Ward or if he dieth without Heir the Land shaâ—… Escheat And likewise in the Case of an Infant if 〈◊〉 maketh a Feoffment in Person if he dieth without Hâ—… the Land shall not Escheat but otherwise if it were maâ—… by Letter of Attorney but the Infant himself shall 〈◊〉 avoid it but others shall But things done by matter 〈◊〉 Record as Fines Recoveries Judgments Statutes Râ—… cognisances shall bind as well the Idiot as he who is Noâ—… compos mentis 31 E. 3. Saver Default 371. 1 Maâ—… Dum fuit infra aetatem 7. A Grant of an Infant saith Finch under the Age 〈◊〉 21 Years and one out 〈◊〉 his right Mind whom 〈◊〉 Lib. 2. c. 2. of Possessions p. 102 103. Edit 1627. call Non sane memorie 〈◊〉 Non compos mentis as 〈◊〉 Idiot may be avoided at any time by Entry Action c. or a Feoffment by Letter of Attorney c. if they deliver it with their Hands as in a Feoffment and themselves make Livery or a Gift of Goods and themselves deliver them but if they deliver not with their Hand as in a Grant of a Rent Advowson c. it is meerly void and nothing at all passeth so as they may have a Trespass or Assize and remain Tenant to the Lord and therefore shall be in Ward notwithstanding such Feoffment XIV QUERY A Man dies seised of Land his Heir being an Idiot or Sot Natural and before Office he levies a Fine whether the King shall have the Lands per Praerogativam Regis cap. 9. or not SOLUTION Home devie seisi de Terre son Heire esteant sotte natural avant Office il leva fine le Roy navera les terres per Praerogativam Regis Crompton fol. 117. a. tit Court de Gards Liveries Edit 1594. cap. 9. Car ne serra intende que fuit sotte Conuter le Fine Car ceo va encounter le credit del Iustice que prist le fine car serra intend que le Iustice ne voile prender fine de luy si ust este Ideot Englished thus A Man seized of Land his Heir being an Idiot and before any Office this Idiot levieth a Fine the King shall not have the Custody of the Lands by his Prerogative for that it shall not be intended or presumed that he was a Natural Fool against the Fine levied because this will impeach the Reputation or Credit of the Judge before whom the Caption of the Fine was For it shall be presumed that the Judge would not take the Fine if he had not been an Idiot XV. QUERY Idiots in the Custody of the Prince whether the Custody of an Idiot can be devised by the Testator SOLUTION Concerning Idiots such is the Prerogative of the Princes
his Ancestor was Non compos mentis shall avoid it by Entry Plea or Writ And therewith the greatest Authorities of the Law-Books agree and so it was resolved with Master Littleton in Beverley's Case where it is said That it is 4 Co. f. 126 127. a Maxim of the Common Law That the Party shall not disable himself XXI REMARK If a Furor Man or a Man of Non sane Memorie make a Feoffment c. he himself cannot enter nor have a Writ Dum non fuit compos mentis but after his Death his Heir may well enter or have the said Writ of Dum non fuit compos mentis at his Choice Littleton sect 406. Exposition of Terms of the Law f. 138. a. b. tit Dum non fuit compos mentis Natura Brevium f. 128. a. b. Edit 1551. XXII REMARK Mad-folks during the time of their Furor or Insanity of Mind cannot make a Furiosi testamentum facere non possunt quia mente carent In adversa corporis valetudine mente captus tempore testamentum facere non potest Senium aetatis vel aegritudinem corporis sinceritatem mentis tenentibus testamenti factionem certum est non auferre Testament nor dispose any thing by Will no not ad pias Causas the Reason is most forceable because they know not what they do For in making of Testaments the Integrity and Perfectness of Mind and not Health of the Body is requisite and thereupon arose that common Clause used in every Testament almost Sick in Body but of perfect Mind and Memory Swinburn in his Treatise of Testaments and Last Wills 2d Part sect 3. f. 34. b. Edit 1590. Inst. 2. 12. 1. Cod. 6. 22. 9. Cod. 6. 36. 5. Cod. 6. 22. 3. Caius lib. 2. tit 2. de Testamentis Ulpianns tit 20. de Testamentis 6 Co. 23. Marquess of Winchester's Case XXIII REMARK The Impediment of Furor or Madness is so strong that if the Testator make his Testament after this Furor or Madness have overtaken him and whiles as yet it doth possess his Mind albeit the Furor afterwards departing or ceasing the Testator recover his former Understanding yet doth not the Testament made during his former Fit recover any force * Quod initio vitiosum est non potest tractu temporis convalescere D. 50. 17. 29. l 178. l. 201. l. 210. 1. 80. D. 34. 7. 1. D. 44. 7. 27. non firmatur 18 de Reg. in 6. D. 49. 1. 16. nisi duo quae sequuntur concurrunt vitii sc. Cessatio novissimus Actus i. e. nisi principium ipsius rei utile sequatur verbis vel actibus extrinsecus declaratis veluti Ratihabitione aliqua or strength thereby Cod. 6. 22. 9. Instit. 2. 12. 1. Swinburn in his Tract of Wills Part 2. sect 3. nu 3. p. 36. b. 37. a. Edit 1590. Godolphin's Tract entituled The Orphan's Legacy Part 1. cap. 8. nu 2. XXIV REMARK If a Man whilst he is mad or in a distracted Condition be admitted by a Judge to levy a Fine his Declaration Note He that is enabled to the Principal that is the Fine shall not be disabled to do the Accessory that is the declaring the uses of the Uses shall bind him and his Heirs as long as the Fine remaineth in force 2 Co. f. 58. b. Co. lib. 12. f. 123. Mansfield's Case 10 Co. f. 42. b. Mary Portington's Case XXV REMARK If a Furor Man grant a Rent-Charge out of Land his Heir may avoid it and hold it discharged Sheppard in his Abridgment Tit. Idiots XXVI REMARK He that is not a good Grantor cannot make a good Grant or Surrender of Copyhold-Land without a special Custom to enable him thereunto And hence it is that a Surrender made by a Mad man is not good but void in Law Sheppard of Copyholds c. 12. p. 117 118. XXVII REMARK A Surrender or Grant of copyhold-Copyhold-Land may be made to a Lunatick and to one that was of good and sound Memory and by the Visitation hath lost it Sheppard's Court-Keeper's Guide c. 19. p. 118 119. XXVIII REMARK If a Man of None sane M. 1. Mar. 1. Br. Dum non fuit compos mentis 7. memorie be a Judge all Acts done by and before him shall stand good in Law XXIX REMARK If a Woman being in a Frenzy and of unsound Memory kill her Husband or another Man or Woman she shall not forfeit her Dower 12 H. 3. Dower 183. Perkins sect 365. Tit. Dower XXX REMARK A Descent during Minority Marriage Imprisonment Non sanae mentis or being out of the Realm do not take away an Entry Noy in his Grounds of the Laws c. 16. Of Descents XXXI REMARK A Man becoming Non compos mentis by Accident is disseised and suffers a Descent albeit he recover his Memory and Understanding again yet he shall never avoid the Descent Coke in his Comment on Littleton sect 405. f. 247. a. XXXII REMARK Albeit the Eldest Son of a Sovereign Prince be unfit to bear Rule albeit he be unable to Govern either others or himself as if he be in a high degree furious or foolish or otherwise defective in Body or in Mind unless he degenerate from Humane Condition yet he cannot therefore be excluded from Succession because it is due unto him not in respect of Ability but by reason of his Priority of Birth Sir Iohn Heyward in the Life of William II. p. 147 148. Edit 1613. From the Remarks come we to the Queries concerning Mad-men SECT III. The Queries with their Solutions relating to Furor Men. I. QUERY Whether Madness or Insanity of Mind ought to be proved by him that objecteth the same SOLUTION EVery Person is presumed to be of perfect Mind and Memory unless the contrary be proved And therefore if any Person go about Swinburn in his Treatise of Wills Part 2. Sect. 3. n. 5. p. 37. a. b. Edit 1590. to impugn or overthrow a Testament by reason of Madness Insanity of Mind or want of Memory he must prove that Impediment And if it be demanded Wherefore then is that usual Clause Of perfect Mind and Memory so duly observed in every Testament if he that doth prefer the Will be not charged with the Proof thereof It may be answered That that which is notorious is to be alledged not proved And so this Notorium probatione non indiget Zouch's Elements Pars 5. § 6. de Evidentia Causae being accounted notorious because where the contrary appeareth not the Law presumeth it it need not be proved And therefore 't is supposed that that Clause is more usual than necessary and yet not hurtful II. QUERY Madness before the making of a Testament whether it can be presumed to continue SOLUTION It may be delivered for a Rule That it is sufficient for the Party which pleadeth the Insanity of a Testator's Swinburn Part 2. Sect. 3. p. 37. b. 38. a. Edit 1590. Mind to prove that the Testator was besides
and Lunatick Persons Dr. Godolphin in his Tract entituled The Orphan's Legacy Part 1. c. 8. nu 2. Instit. 2. 12. 1. c. 6. 22. 9. II. QUERY Whether a Testament can be made by a Lunatick Person betwixt his Fits SOLUTION If a Lunatick Person hath clear or calm Intermissions then during the time of Swinburn Part 2. § 3. Orphan's Legacy Part 1. Chapter 8. such their Quietness and Freedom of Mind he may make his Testament appointing an Executor and disposing of his Goods at his pleasure So that neither the Furor or Madness going before nor following the making of the Testament doth hinder the same Testament begun and finished in the mean time The Lawyer Caius saith thus Hi qui furiosi id est mente insani fuerint non possunt facere testamenta Lib. 2. tit 2. de Testamentis Sed hii qui insani sunt Si intervalla ipsius insaniae habent per intervalla quibus sani sunt possunt facere testamenta The Emperor Iustinian speaks in this manner both in his Institutes and in his Code Furiosi si per id tempus fecerint testamentum quo furor eorum intermissus est jure testati esse videntur Instit. 2. 12. 1. Sancimus tale Testamentum hominis qui in ipso actu Testamenti adversa valetudine tentus est pro nihilo esse Si vero voluerit in dilucidis intervallis aliquod condere Testamentum vel ultimam voluntatem hoc sana mente inceperit facere consummaverit nullo tali morbo interveniente stare Testamentum sive quamcunque ultimam voluntatem censemus c. c. 6. 22. 9. III. QUERY If a Testament be made by a Lunatick Person and the time of the making unknown whether this Testament be good or no SOLUTION If a Lunatick Person or one that is besides himself at some times but not continually make his Testament and it is not known whether the same were made whilst he was of sound Mind and Memory or no then in case the Testament be so conceived as thereby no Argument of Frenzy or Folly can be gathered it is to be presum'd that the same was made Vasq. de Success progress lib. 1. § 9. n. 90. during the time of his Calm and clear Intermissions and so the Testament shall be adjudged for a good Testament Yea altho' it cannot be proved that the Testator useth to have any clear and quiet Intermissions at all yet nevertheless 't is supposed that if the Testament be wisely and orderly framed the same ought to be accepted for a lawful Testament But if in the Testament there be a mixture of Wisdom and Folly 't is presumed that the same was made Angel in L. Furiosum c. qui Testa fac poss during the Testator's Frenzy insomuch that if there be one word sounding to Folly it is presum'd that the Testator was not of sound Mind and Memory when he made the same And therefore Idem Angel in eadem L. Furiosum in this Case is the Testament void unless it may be proved that there was Intermission of Furor the same time Swinburn in his Treatise of Testaments and Last Wills Part 2. Sect. 3. f. 38. b. 39. a. Edit 1590. IV. QUERY Whether the Dying seised of a Bastard Eigne without Interruption shall bar the Right of a Mulier Puisne that is a Mad-man or a Lunatick SOLUTION According to some If a Man be seized of Land and hath Issue two Sons Bastard 8 Co. f. 101. Lechford's Case Eigne and Mulier Puisne and the Father dieth seised the Mulier being beyond Sea or within Age or Imprisoned or Non sanae Memoriae and the Bastard Eigne entreth and continueth in peaceable possession of the Lands and hath Issue and dieth and the Lands descend to his Issue the Right of the Mulier in all the said Cases is bound for ever And others hold the contrary V. QUERY Whether a Lunatick can be prejudiced by Laches of suing Livery SOLUTION Sir Ralph Burcher being seised of divers Mannors in the County of York holden in Hobart's Rep. f. 137. Burchers Case Chief died seised Anno 40 Eliz. and the same descended to William Burcher presently after his Death it Lunatick sueth not Livery no mean Rates run against him was found by Office before Commissioners in the County of Middlesex that the said William Burcher was a Lunatick and so had been long before the Death of his Father and that he was seised of the said Mannors and the Queen granted the Custody of him and his Lands to Sir Francis Barrington After which 42 Eliz. there was an Office found in the County of York of the Seisin of Sir Ralph his Death and Heir ut supra and that he was of full Age And it was resolved That the King And Livery was due to him and the Law presumes that he would have sued it being for his Benefit if he had been Compos mentis was not to have any mean Rates in this Case for default of Livery sued or tendred because no Lachess could be imputed unto the Heir being Lunatick before and ever since the Death of his Ancestors and the Lachess of his Friends shall not hurt him otherwise it were if at any time he had been Sanae Memoriae since the Death of his Ancestors And there was shewed unto the Judges the like Decree made Mich. 10 Iac. in the Cause of one Vaughan which the Attorney of the Court of Wards said was made as a Decree of Equity but they resolved also it was a good Decree in Law upon the Reason aforesaid not because the King had seised and committed by force of the Lunacy for that would have changed with the King 's better Estate for it is better for the King to hold for default of Livery than for Lunacy VI. QUERY Whether a Lunatick be punishable for hurting a Man SOLUTION If a Lunatick kill a Man this is no Felony because Felony must be done Animo Hobart's Reports f. 134. Weaver v. Ward Felonico yet in Trespass which tends only to give Damages according to Hurt or Loss it is not so And therefore if a Lunatick hurt a Man he shall be answerable in Trespass and therefore no Man shall be excused in Trespass for this is the Nature of an Excuse and not of a Justification prout ei bene licuit except it may be judged utterly without his fault VII QUERY Whether a Devise by a Lunatick be aided by the Statute of 43 Eliz. Of charitable Uses SOLUTION Collison 15 H. 8. devised Hobart's Rep. 136. Collison's Case an House in Eltham in Kent to Lettice his Wife for Life and after her Death made one Iohn Bricket and others Feoffees as he called them in the said House to keep it in Reparations and to bestow the rest of the Profits upon the Reparation of certain High-ways there Collison and his Wife are dead and the House is descended to one Oliver Rolt an