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
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
and it shall be a good Plea or Exception to the Demandant or Plaintiff's Suit or Action Fleta lib. 2. cap. 54. numb 3. p. 116. and lib. 6. cap. 38. numb 1. p. 431. and cap. 40. numb 1. p. 434. Bracton lib. 5. tract 5. cap. 20. numb numb 1. f. 420. b. Mirror des Iustices cap. 2. sect 3. s. 117. XIII REMARK There is required in them who contract Matrimony a sound and whole Mind to consent for he that is either an Ideot or Madman without intermission of Fury cannot Marry The Womans Lawyer lib. 2. sect 10. p. 57. Edit 1632. This Consent saith Amesius must be voluntary and free else it 's not esteemed a humane consent and hence the consent of such as have not the use of Reason is no force to such a Contract Lib. 5. cap. 35. Qu. 4. XIV REMARK A Man that is Deaf and Dumb and yet hath Understanding may Attorn by signs but one that is Non compos mentis as an Idiot cannot attorn for that he hath no understanding cannot agree to the Grant Co. Lit. f. 315. a. 26 E 3. 63. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XV. REMARK Minoribus acquiruntur possessiones naturaliter fatuis furiosis per Tutores inde aliter vero minime eo quod intellectum recipiendi non habent nec retinendi Curatores autem sanum intellectum oportet habere quia si minorem fatuum a Nativitate vel furiosum miseris ut possideas nequaquam videris per eos possessionem apprehendisse quia intellectum non habent Fleta lib. 3. c. 15. nu 1 4. p. 203. VdeBracton lib. 2. c. 18. nu 6. f. 43. b. XVI REMARK It appears in the old Books of Law that it was expedient that Ideots should have a Curator or Tutor or one that should take the charge of their Persons Lands and Goods which Office since Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 1. c. 11. nu 10. Cowel's Institutes lib. 1. tit 23. sect 1. de Curatoribus is devolved to the King and made parcel of his Prerogative 17 E. 2. cap. 9. As Fitzherbert very well saith in his Natura Brevium The King is the Protector of all his Subjects their Goods Lands and Tenements and therefore of such as cannot govern themselves Stamford Sur Praerog Regis cap. 9. Britton c. 66. f. 167. b. Sir Thomas Smith's Common-weath lib. 2. c. 4. p. 98. Eng. Edit 1640. XVII REMARK The King having the custody of the Persons and Estates of Idiots can let to Farm rendring Rent all the Possessions of a Fool natural but not that which he hath Title unto or Action And therefore upon an Office finding that the Idiot's Ancestors died seized of an Estate Tail it is sufficient to Traverse the dying seized for that only entituleth the King 31 E. 3. Saver de Fault 37. 1 H. 7. 24. Finch's Law lib. 2. c. 2. XVIII REMARK By the Common Law the King shall have as great protection of the Goods and Chattels of an Idiot as of his Lands and that as well the scattering of his Goods 4 Co. f. 128. Beverly's Case and Chattels as the Alienation of his Lands is to be remedied and redressed by the King to whom the Law hath given the Protection and Custody of him XIX REMARK As after Office found an Idiot cannot Alien Give c. So Alienations Gifts c. made before Office found shall be avoided after Office thereof found for no Latches shall be found in the King nor any prejudice thereby shall accrue to the Idiot for not suing the Office before the Feoffment of Gift 4 Co. f. 428. Beverley's Case XX. REMARK If the Idiot dies before Office found after his Death no Office can be found for the words of the Writ are Et ipsum viis modis quibus super statu suo melius poteritis informari circumspecte examinaretis c. which cannot be done when he is dead and without Office the King cannot be entituled 16 E. 3. Livery 30. 4 Co. f. 128. Beverley's Case XXI REMARK When the King is informed that one who hath Lands and Tenements and is a natural Fool from his Birth the King may award his Writ called Idiota inquirendo vel examinando which directed to the Escheator or Sheriff of any County where the King hath information or understanding that there is an Idiot naturally so Born so weak of Understanding that he cannot govern or manage his Inheritance to call before him the Party suspected of Idiocy and examine him and also to inquire by the Oaths of twelve Men whether he be sufficiently witted to disposâ—… 〈◊〉 his own Lands with discretion or not and to certifie accordingly into the Chancery for the King as hath been said before hath the Protection of his Subjects and by his Prerogative the Government of their Lands and Substance that are naturally defective in their own discretion Doctor Cowel's Interpreter Brevia de inquirendo de Idiota tit Idiota inquirendo c. Minshew's Guide to the Tongues 373. Note The several Forms of the Writs in Latine directed either to the Escheator or the Sheriff are to be seen in the Register Orig. f. 266. a. b. XXII REMARK When a Man is found an Idiot from his Birth by Office he who is so found Idiot falsely as he supposeth may come personally into The manner how he that is falsely found to be an Idiot shall avoid the Office Chancery before the Chancellor and pray that before him and the Justices and Sages of the Law which he shall call to him and are called the King's Council he may be examined if he be an Idiot or not or by his Friends he may sue forth a a The Writ De Idiota coram consilio ducendo ad examinandum Reg. Orig. f. 267. Writ out of the Chancery returnable in the Chancery ibidem coram nobis consilio nostro examinand And if he be found upon examination that he is no Idiot the Offic found thereof and all the Examinations which hath been made by force of the Writ or the King's Commission is utterly void without any Traverse or Monstrans de droit or other Suit as appeareth by the Register Orig. f. 267. and F. N. B. 233. vide 15 E. 3. in Fitz. Tit. Livery 306. 9 Co. f. 31. The Case of the Abbot of Strâ—…ta Marcella Stamford super Praerog c. 9. f. 34. a. 36â—… Edit 1567. XXIII REMARK If a Scire Facias be awarded against the Feoffee of an Idiot and the Feoffee appearing upon the Scire Facias may traverse the Idiocy as appears he did in the Book of 18 E. 3. XXIV REMARK The Law gave the King but the Custody of the Lands of-the Idiot and altho' the same continued during the Life of the Idiot yet having but the Custody the King hath not the Freehold or Fee but the Freehold is in the Idiot For the
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-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
to cold and sedate Reasoning and then Reason being thus laid aside Fancy gets the Ascendent and Phaeton-like drives on furiously and inconsistently This Combustion of the Spirits happens sometimes by over-great Intention of the Mind in long and constant Study sometimes by a Fever which inflaming the Blood that communicates the Incendium to the Spirits which take the Original from it But most usually by the Rage and Violence of some of the Passions whether Irascible or Concupiscible as they are wont to be distinguished a Man setting his Heart vehemently upon some * Mad-men have always before their Eyes those Idea's and Shapes which work the Apprehension of their Fury and hold them in the Vision and inward View of that which most troubleth their diseased Brain French Academy c. 18. Of Intemperance Object or other the Spirits are set on fire by the Violence of their own Motion and in that Rage are not to be governed by Reason This we have sad Examples of in Love in Grief in Jealousie in Wrath and Vexation and indeed saith my Author Bethlehem is filled with the Instances II. REMARK By the Statute of Praerogativa Regis the King of England is to provide that 17 E. 2. e. 10. the Lands of the Furor Men be safely kept without waste and that they and their Families if they have any shall be maintained with the Profits thereof and that the Residue be kept for their use and delivered unto them when they come to be of right Mind So as their Land shall not be aliened neither shall the King have any Profit thereof to his own use But if they die in such Estate the Residue shall be distributed for their Souls by the Advice of the Ordinary III. REMARK The words of F. N. B. 232. That the King is bound of Right by his Laws to defend his Subjects and 4 Co. 128. Beverley's Case of Non compos mentis their Goods and Chattels Lands and Tenements extend as well to one Non compos Mentis as a Mad-man as to an Idiot a Nativitate but in Case of Non compos mentis the King shall not have Interest in a Mad-man that is wholly deprived of his Understanding as he hath in the Idiot because that a distracted Man may recover his Memory that he hath lost and therefore in the Case of the Idiot or Fool Natural the Law saith Rex habebit Custodiam but in the Case of a Mad-man or Non compos mentis Rex providebit And as to Alienation made by a Man distracted the words are all one as they are in the Case of the Idiot and therefore after Office found thereof the Alienation Gift c. of him who is by Accident deprived of his Wits are in equal Case with the Alienation or Gift of an Idiot a Nativitate And the said words of the Writ in the Register Quia accepimus quod J. de B. fatuus Idiota existit c. extend Register of Original and Judicial Writs f. 266. a. as well to another Non compos mentis as Idiota a nativitate a Fool Natural For afterwards in the same Writ it is said Diligenter inquiras si Idem fatuus Idiota sit necne si sit tum utrum a nativitate sua Register f. 2668. an ab alio tempore tunc a quo tempore qualiter quomodo si lucidis gaudeat intervallis si Idem J. in eodem statu existens terras aut Tenementa aliqua alienavit necne c. So that it appeareth that in Judgment of Law Fatuus Idiota include as well Non compos mentis as Idiota a Nativitate and therefore they are in the same Case as to the Alienation of their Lands and Tenements Goods and Chattels IV. REMARK A Furor Man cannot appoint an Attorney as appears by Britton for he tells us Chescun ne puit mye faire attorne Car enfant dedens Cap. 126. f. 285. b. Age ne muet ne surd ne fol naistre ne homme arrage ou auterment sans discretion ne puit mye faire attornes V. REMARK There is required in them who contract Matrimony a sound and whole Mind to consent and therefore he that is mad or distracted without Furor says the Lawyer Gaius sponsalibus impedimento sit plus quam manifestum est D. 23. 1. 8. Furor contrahi Matrimonium non sinit quia consensu opus est says Paulus D. 23. 2. 16. 2. Furiosus Matrimonium contrahere non potest Decret Greg. l. 4. tit 1. c. 24. Innocentius 3. Versil Episcopa dilectus filius R. proposuit quod filiam suam cuidam Matrimonaliter copulavit Cum autem eadem mulier cum ipso viro qui continuo furore laborat morari non possit propter alienationem mentis non potuerit intervenire consensus man damus quatenus si rem noveris ita esse praefatas personas cures ab invicem separare Intermission of Fury cannot enter into the Bonds of Wedlock So says the Author of the Treatises entituled The Woman's Lawyer l. 2. sect 10. p. 57. And with him concurs Amesius in his Cases of Conscience The Consent of Wedlock saith he musâ—… be voluntary and free else it is not esteemed a Human Consent And hence the Consent of such as have not use of Reason as Mad-men is of no force to such a Contract Lib. 5. c. 35. Question 4. nu 24 25. p. 201. Engl. Edit 1643. Such one may not consent to Marriage and his Issue will not be legitimate Trin. 3 Iac. B. Regis Stiles VI. REMARK Tho' Furor or Madness hinders the contracting of Matrimony yet it shall not Furor impedit Matrimonium contrahendum sed non dirimit contractum take away that Marriage that is already contracted as appears by the Civil and Canon Laws D. 23. 1. 8. D. 23. 2. 16. 2. Instit. Iuris Canonici Lib. 2. Tit. 12. Arnoldus Corvinus in his Ius Canonicum Lib. 2. Tit. 13. de Nuptiis VII REMARK A Furor Man ought not to be a Witness in any Cause be it either Civil or Criminal Decret 2. a. Pars Furiosus aut mente Captus non potest esse Testis caus 3. Qu. 19. c. 14. Decret Greg. Lib. 3. Tit. 27. c. 3. de Successionibus ab intestato Corvinus in his Ius Canonicum lib. 3. tit 27. de Testibus Ulpianus tit 20. de Testamentis D. 28. 1. 20. 4. Swinburn in his Treatise of Wills Part 4. Sect. 21. f. 186. a. Edit 1590. VIII REMARK Children and Mad-men * Lex duodecïm Tabularum furiosum in curatione jubet esse Agnatorum Ulpian tit 12. de Curatoribus altho' they have not the next actual power of using things yet they have a radical power because they are Men Amesius in his Cases of Conscience lib. 5. c. 41. qu. 1. sect 6. And by the Law of Nations Children are then capable of inheriting †Plutarch de Fort. Alex. l. 2.
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
Idiot 18 E. 3. Scire Facias 10. 32 E. 3. Scire Facias 106. 50. Ass. Pl. 2. For the Statute of Proerogativa Regis saith Quod post mortem eorum reddat eam rectis Haeredibus which the King cannot do nor can the King have the possession of the Land to his own use if not that by the Office and Seizure such Conveyance made by the Idiot be destroyed and that doth not impugn the Maxim at the Common Law * It is a Maxim of the Common Law of England That the Party shall not disable himself Co. Lit. 247. b. 10 Lib. 4. f. 123. b. Beverley's Case Cro El. f. 398. Stroud v. Marshal Co. 3. Inst. 215. Littleton sect 405. For in this Case the Idiot in no Plea that he can plead shall disable or stultifie himself but all is found by Office by the Inquisition and Verdict of twelve Men at the King's Suit who are not concluded to speak the Truth and such Office when it is found shall have relation a tempore Nativitatis to avoid all mean Acts made by the Idiot as Feoffments Releases c. And therewith agreeth 23 E. 3. Scire Facias 106. Stamford's Praerogative 34. F. N. B. 202. C. But notwithstanding the Words of the Statute of Praerog Regis are general and emphatical Nullatenus alienantur yet if he Alien by Fine or Recovery it shall bind him or acknowledge 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 follow thereupon Also such Averment is against the Office and Dignity of the Judge for he ought not to take any Conusance of a Fine or Recognisance of him who is Non Compos Mentis 18 E. 2. Fines 120. 17 Ass. Pl. 17. 17 E. 3. X. QUERY A Fine levied by an Idiot or Natural Fool what it operates SOLUTION Anno 23 Eliz. In the Court of Wards the Case was this That Henry Bushley seized in Fee of certain Mich. 12 Iac. Regis Mansfield's Case Co. Lib. 12. f. 123 124. Lands in North-Mins in the County of Hertford by his Will in Writing demised the said Lands to Henry Bushley his Son in Tail the Remainder to one William Bushley And for this that his Son was within Age he demised the Education of him to Thomas Harrison whom he made his Executor And afterwards it hapned that Henry the Son became a monstrous and deformed Cripple and proved an Idiot a Nativitate The which Idiot by the Practice of one Nichols and others was ravished and taken out of the Custody of his Guardian and was carried upon Mens Shoulders to a Place unknown and there kept in secret until he had acknowledged a Fine of his Lands to one Botham before Justice Southcot Anno 9 Eliz. And by Indenture between them the use of the said Fine was declared to the use of the Cognizee and his Heirs which Botham conveyed Anno 12 Eliz. the said Land to one Henry Mansfield And Anno 12 Eliz. the said Henry Bushley the Son by Inquisition was found an Idiot a Nativitate and upon this in Anno 33. the Court of Wards took Order for the Possession of the said Lands And it was moved as a Doubt in the said Court of Wards Whether the said Fine should be to the Use of the said Idiot and his Heirs For notwithstanding that the Fine which is of Record binds the Idiot for the Causes aforesaid yet the Indentures are not sufficient to direct the Uses But it was resolved that forasmuch as he was enabled by the Fine Vide Co. Lib. 2. f 58. Beckwith's Case Co. lib. 10. Portington's Case as to the Principal he shall not be disabled to limit the Uses which are but as accessory And the same is the Law of an Infant and Feme Covert And the said Mansfield brought an Action of Trespass in the Common Pleas against one Trot the Farmer of the said Lands and the Issue was to be tried at the Bar And the said deformed Idiot was sent out of the Court of Wards to be shewn to the Judges of the Common Pleas and to the Jurors there tried and sworn and being brought upon a Man's Shoulders the Judges hearing that the Title of Mansfield was under the said Fine levied by that Idiot the Lord Dyer and the Court by Consent of Parties caused a Juror to be withdrawn and the Lord Dyer said That the Judge who took the Fine was never worthy to take another But notwithstanding this and altho' the monstrous Deformity and Idiocy of Bushley was apparent and visible yet the Fine stood good XI QUERY A Fine levied by J. S. Uncle of an Idiot who was seized of the 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. SOLUTION Trespass upon Not Guilty and a special Verdict the Case was Tenant for Life Reversion to William Rogers Cro. Car. f. 525 543. Edwards v. Rogers an Idiot in Fee Andrew Rogers his Uncle levies a Fine Come Ceo c. with Proclamation to Robert Crompton and had Issue Iohn who had Issue William the Defendant and died William the Idiot died without Issue William the Defendant enters as Heir unto him viz. Son and Heir of Iohn Son and Heir of the said Andrew And whether he may claim against this Fine of his Grand-father not claiming by the Grandfather but deriving only his Pedigree from him was the Question And it was argued by Rolls for the Plaintiff That forasmuch as William Rogers is Heir to Andrew his Grand-father Uncle to the said William the Idiot he is estopped to claim against this Fine or to say Quod partes ad finem nihil habuerunt And for Proof thereof he relied upon the Statute of 27 E. 1. of Fines Co. lib. 3. f. 89. 10 Car. Scovel Brastock's Case Co lib. 3. f. 30. Sir George Brown's Case Saule Clerk's Case But it was argued by Farrer for the Defendant that this Fine shall not bar because he claims not any Interest by or from Andrew nor as Heir unto him but only makes â—…ention of him in the Pedigree Co. Litt. f. 8. 2 E. 3. 6. 〈◊〉 lib. 8. 53. Symms Case c. And that here he is 〈◊〉 Quasi of another Title and Puisny to the Fine â—…erkly and Croke delivered their Opinions That this â—…ne by Andrew the Uncle of William the Idiot who â—…as seized of the Inheritance he dying in the Life of â—…illiam so as nothing ever attached upon him shall â—…ver bar William the Defendant who was Grand-child 〈◊〉 the said Andrew because he claims nothing by or â—…om him but only from William the Nephew of Anâ—…rew who survived the said Andrew And he makes â—…s Title as Heir to the said William the Nephew who â—…as last seized not making therein any mention of
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
Purchaser SOLUTION A Man of Non sane Memorie may without the Consent of any other purchase Lands but he himself cannot wave it But if he die in his Madness or after his Coke in his Comment on Littleton § 1. f. 2. b. Memory recovered without agreement thereunto his Heir may wave and disagree to the State without any Cause shewed and so of an Idiot But if a Man of Non sane Memorie recovers his Memory and agree unto it it is unavoidable So it is if a Mad-man makes a Gift or Grant and then recovering his Wits confirms it this Gift or Grant is unavoidable as appears by Bracton and Fleta The former speaks thus Convalescit Donatio facta a Furioso si sanae mentis effectus donum illud confirmaverit vel ratum habuerit Lib. 2. cap. 5. nu 4. f. 11. b. 12. a. The later saith in this wise Dare poterit Furiosus quandâ—…que fatuus dum tamen donum ex post facto confirmaverit cum recuperaverit sanitatem Lib. 3. cap. 3. nu 8. With which Authors does agree Dionysius Gothofredus's Note upon D. 24. 3. 22. 10. Furiosus ad suam mentem reversus ratam rem habere potest Ratamque habendo facit utilem XVI QUERY Whether the Will of one that afterwards becomes mad or distracted shall stand good in Law SOLUTION If a Man that is of good and perfect Memory makes his Will and afterwards by the Visitation of God he 4 Co f. 61. b. Forse and Hembling's Case becomes of unsound Memory this Act of God shall not be a Revocation of his Will which he made when he was of good and perfect Memory With this Resolution do concur our old Jurists Bracton and Fleta as also the Texts of the Civil Law 1. Bracton Furor superveniens nihil adimit non magis quam morbus incurabilis sicut Lepra Secundum Lib. 5. Tract 5. Cap. 20. nu 1. f. 420. b. quod dicitur quod multa impediunt contrahendo quae non dirimunt Contractum ita sunt multa quae impediunt promovendo quae non dejiciunt jam promotum 2. Fleta Furor alienationem prius factam non perimit sicut multa impediunt contrahenda quae non Lib. 6. Cap. 40. nu 1. dirimunt Contractum ita sunt multa quae impediunt promovendum quae non dejiciunt jam promotum 3. Civil Texts Neque Testamentum recte factum neque ullum aliud negotium recte gestum postea furor interveniens perimit Siquis Instit. 2. 12. in Fine post testamentum factum adversa valetudine aut Instit. 2. 12. 3. in Fine quolibet alio casu mutus aut surdus esse caeperit ratum nihilominus manet ejus Testamentum Vide D. 28. 1. 20. 4. XVII QUERY Whether a Fine before a Iudge of Non sane Memorie or a Grant of an Office made by him be good in Law SOLUTION There is a Diversity taken between a Fine levied before a Judge of Non sane Memorie and a Grant of an Office made by him For Si Iudge ou Iustice soit de non sane Memorie uncore les Fines Iudgements auters Records que sont devant luy serra bon Mes e contra del done d'Office vel hujusmodi per luy car ceo est matter en fait l'auters sont matters de Record Car matters en fait poient estre avoid per non sane Memorie Contra de matter de Record If a Judge or Justice be distracted yet the Fines Judgments and other Records that are before him shall be good But otherwise it is of the Grant of an Office or the like by him made For this is Matter in Fact and the others are Matters of Record for Matters in Fact may be avoided by Non sane Memorie otherwise it is in the Case of Matter of Record Br. Dum non fuit Compos mentis 7. XVIII QUERY A Mad-man makes an Exchange of his Land with J. S. for other Land and the Exchange is accordingly executed the Non sane Man dies whether his Heir can avrid this Exchange having first entred into the Land taken in Exchange SOLUTION If a Man of unsound Memory being seized of Land in Fee exchangeth the same Land with a Stranger for another Acre of Land in Fee and the Exchange is executed and he of unsound Memory dieth and his Heir enters into the Land taken in Exchange by his Father he shall not avoid this Exchange Perkin Sect. 298. Tit. Exchanges XIX QUERY Whether and in what Cases Lachesse can prejudice an Idiot Mad-man or other Non compos mentis SOLUTION There are some who have made a Difference between Bar of Non compos mentis's Right and Bar of his Entry 4 Co. fol. 125. a. b. Beverley's Case of Non compos mentis for in Case of Bar of his Right his Lachesse or Negligence shall not be prejudicial to him but in such special Case if he become of unsound Memory he shall shew that he was not Compos mentis As if a Man Non compos mentis be disseised and the Disseizor levieth a Fiâ—… in this Case at the Common Law altho' the Year 〈◊〉 Day be past yet he who was Non compos mentis shall not be bound thereby but he may well enter and that they say is proved by the Statute De modo levandi Fines made 18 E. 1. which is but a Declaration of the Common Law scil That a Fine is so high a Bar and of so great force and of so high nature in it self that it barreth not only those who are Parties and Privies to the Fine and their Heirs but all other of the World who are of full Age. out of Prison and of good Memory and within the four Seas the Day of the Fine levied if they put not in their Claim by their Action or Entry in the County within the Year and the Day by which it appeareth that no Lachesse * Excusatur ille saith Flet a cujus interfuerit quod Clamium infra annum diem non apposuerit multis modis ut si fuerit infra aetatem tempore quo finis fuit levatus vel furiosus vel mente captus non sanae mentis vel Idiotus vel surdus vel mutus vel si detentus fuerit in Prisona c. Lib. 6. c. 54. nu 1. de Excusationibus of a Man Non compos mentis shall bar him of his Right Also it appeareth by the Statute of 4 H. 7. c. 24. That in such Case if a Man levieth a Fine with Proclamations and at the time of the Fine levied he who hath Right is Non compos mentis and afterward he recovers his Memory that in this Case he ought to sue his Action or Entry within five Years after he becometh of sound Memory and in such Case in Pleading he shall shew that at the time of the Fine levied he was Non compos mentis and all the special Matter But if
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