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
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
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
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
that hereafter shall come and be in the King's Hands and to survey and order all the Mannors Lands Tenements and other Hereditaments whatsoever and also to let and set the same to the King's Use for the time of the King's Interest for such Rent and fined as by their Discretion shall be thought convenient the finding and keeping of the said Persons their Wives and Children and the Reparations of their Houses and Lands always to be considered in the doing thereof c. Note Tho' these Officers of the Court of Wards and Liveries had Power to let and set the Lands of Idiots and Natural Fools yet according to the Sentiment of Stamford they had no Power to grant the Custody of their Bodies XLII REMARK Regularly Conveyances or other Acts of Record acknowledged or made by one that is an Idiot are unavoidable by him or his Heirs in the Laws of England 4 Co. Beverley's Case XLIII REMARK If an Idiot or other Non Compos Mentis does levy a Fine and declare the use thereof this Declaration shall bind him as long as the Fine continues in force for inasmuch as he hath been admitted by the Judges as a Man that hath the use of Reason the Law as long as the Fine remains in force permits him to limit the use thereof 10 Co. 42. b. Mary Portington's Case 2 Co. f. 58. Beckwith's Case 12 Co. f. 123 124. Mansfield's Case XLIV REMARK There is a diversity taken between an Idiot and an Unthrift or Spendthrift as appears in the Case of one Brent of the County of Somerset who was presented for an Idiot but it was evidenced That he could write Letters and make Acquittances and such-like whereupon he was adjudged an Unthrift but no Idiot Br. 4. in Fine Note That as Minors have Curators and Governors so also mad Persons and Spendthrifts Unthrifts or prodigal Persons are appointed by the Civil Law of the Romans to have Governours for that they can no more govern their own State than the others can For they and such as know no time nor end of Spending but riot or lavish out their Estates without all Discretion and for their sakes I will here subjoyn the Sentiments that the old Roman Jurists have had of these Prodigals or Spendthrifts Note Cicero 3 de Officiis tells us That there was a Law made by Laetorius which provided that there should be appointed for those which were Distracted or did prodigally waste their Patrimony For as it appeareth by the common Adage used among the Romans Ad Agnatos Gentiles deducendus est They did account all Prodigals or Spendthrists Mad men they meaning no more by that than we do by our English Proverb Let him be begged for a Fool. The Reason of their Adage was because if any were distracted by the Roman Law his Wardship fell Ad Agnatos Gentiles i. e. to the next of the Kindred Goodwin's Roman Antiquities lib. 3. sect 4. c. 24. Qui Eversores aut insani sunt saith Caius omni tempore vitae suae sub Curatore esse jubentur Quia substantiam suam rationabiliter gubernare non possunt Lib. 2. Tit. 8. de Curationibus Lege 12 Tabularum says Ulpian Prodigo interdicitur bonorum suorum administratio Quod moribus quidem ab initio introductum est sed solent hodie praetores vel praesides si talem hominem invenerint qui neque tempus neque finem expensarum habet sed bona sua dilacerando dissipando profudit Curatorem ei dare exemplo furiosi Et tam diu erunt Ambo in Curatione quam diu vel furiosus sanitatem vel ille sanos mores receperit quod si evenerit ipso jure desinunt in potestate Curatorum D. 28. 10. 1. Divus pius saith the same Lawyer Ulpian matris querelam de filiis prodigis admisit ut Curatorem accipiant in haec verba Non est novum quosdam etsi mentis suae videbuntur ex sermonibus Compotes esse Tamen sic tractare bona ad se pertinentia ut nisi subveniatur his deducantur in Egestatem Eligendus itaque erit qui â—…os consilio regat Nam aequum est prospicere nos etiam eis â—…ui quod ad bona ipsorum pertinet furiosum faciunt exiâ—…um D. 25. 5. 12. 2. Furiosi saith Pomponius vel ejus cui bonis interdictus sit nulla voluntas est D. 50. 17. 40. Hence it is that Spendthrifts or Prodigals are forbidden to make their Testaments or to dispose of Is cui lege bonis interdictum est testamentum facere non potest si fecerit ipso jure non valet Ulpian their Lands or Goods any other ways Instit. 2. 12. 2. D. 28. 1. 18. Swinburn in his Tract of Testaments and Last Wills 2d Part sect 24. Ulpianus Tit. 20. de Testamentis Among the Grecians such as were Spendthrifts were branded with Infamy Decoctores paternae aut alterius cujusvis haereditatis ignominiosi sunto All wild Extravagants and Spend-thrifts who lavishly run out the Estates left them by their Fathers or others shall be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 From the Remarks touching Idiots or Fools Natural we come to our Queries attended with Solutions relating to them SECT III. The Queries with their Solutions concerning Idiots or Natural Fools I. QUERY If the King commit the Body or Estate of an Idiâ—… 〈◊〉 J. S. to do with them as he pleases whether this Graâ—… be good SOLUTION THE Estate and Persons of Idiots and Lunatickâ—… are by Law intrusted with the Supreme Should thâ—… Sovereign Trustee commit the Body or Estate of either of them to I. S. to do with them as absolutely and inordinately as he pleases the Grant were void because Breach of Trust and the Committee punishable for any exorbitant Usage The Author of an Act entituâ—… led Defensio Legis Sect. 10. Par. 81. p. 139. Edit 1674. The Estates and Persons of Idiots and Lunaticks saith the Lord Chief Justice Hobart are by Law intrusted to the King if therefore the King should grant to one that intrudeth upon the Possessions of an Idiot or Lunatick or take their Persons unlawfully that he would not meddle with them but suffer them to do their pleasure these Grants were void For these are Acts of Justice and Offices of a King which he cannot put off Cessa regnare si non vis judicare And in these things the King is never supposed by Law ill affected but abused and deceived for Eadem praesumitur mens Regis â—…ae est Iuris Hobart's Princeps jura tueri praesumitur Princeps Custos legis c. 3. 28 35. D. 43. 8. 1. 10. â—…eports f. 155. Colt and â—…lover v. Bishop of Coâ—…ntry and Litchfield II. QUERY â—…hether the King shall have the mean Profits from the time of the first Seizure of the Idiot or from the time of the Office found SOLUTION William Tourson an Idiot from his Birth by force of Remainder after the Death of his Father was Co.
Lib. 8. f. 170. Thompson's Case â—…intly seized with his Elâ—…er Brother for Term of â—…eir Lives the Lessor did purchase the Estate of the Elâ—…er Brother and took the Body of the Idiot and all the Profits of the Lands and afterwards William Tourson was found Idiot from his Birth by Inquitision The Question was Whether the King shall have the mean Profits of the Moiety from the time of the first Seizin of â—…he Idiot or from the time of the Office And it was â—…esolved That the King should not have the Profits but after the Office and yet to some intent the Office shall have relation from the time of the Birth Scilicet to avoid all mean Acts done by the Idiot and therewith agreeth F. N. B. 202 E. and 18 E. 3. Scire Fac. 10. 32 E. 3. Scire Fac. 106. 50 Ass. Pl. 2. But for the mean Profits it shall not have relation but from the time of the Office found for the same appeareth of Record that the King hath Right to seize the Lands As if the King's Tenant commit Felony Anno 1 Iac. and afterwards Anno 3. he is attainted for the same Felony and afterwards Anno 4. all is found by Office Noâ—… this Office shall have relation to the time of the Felony tâ—… avoid all mean Alienations and Incumbrances but foâ—… the mean Profits it shall have relation to the time oâ—… the Attainder for then the King's Title appeareth of Record and there is a difference where the King shall havâ—… the Custody by reason of a Seigniory as in the Case oâ—… Wardship there the King after Office found shall havâ—… the mean Profits from the time of the Death of the Ancâ—…stor for the King hath Wardship by reason of his Seigniory and he loseth his Rent and Services in the mean time But the King hath the Custody of an Idiot noâ—… in respect of any Seigniory but in the Right of hiâ—… Royal Protection because that his Subject is not able to govern himself nor his Lands or Tenements which he hath and this Protection doth begin by the Office found And the Statute of Praerogativa Regis c. 9. saith The King shall have the Ward of Lands of Natural Fools taking the Profits c. to find them Necessaries c. By which it appeareth that the King shall take the Profits from the time that he is charged with the finding of the Idiot and his Family Necessaries c. and that is after the Office found so that when the King seizeth in the Right of his Regal Protection as in the Case at Bar or Nomine districtionis as in Case of Alienation of Lands in Capite without License or of Marriage of his Widow without License there after Office found the King shall not have any of the mean Profits before the Office as it is holden in 8 E. 4. 4. 40 Ass. Pl. 36. But when the King seizeth by reason of a form'd Right or Title there the King shall have the mean Profits from the time of his Right or Title first accrued as 18 Ass. Pl. 18. from the time of a Condition broken 41 E. 3. 21. from the time of the Alienation of his Tenant in Mortmain And if the Lands holden of others from the time the Title came to him 46 E. 3. Forfeiture 18. upon the â—…atute of West 2. c. 45. which giveth the Contra forâ—…am Collationis from the time of the Alienation for these Acts the King's Title and Right doth accrue â—…nd in the principal Case no Precedent can be found at the King was answered the mean Profits before the â—…ffice found but only after the Office and so the Quere Stamford's Praerogativa Regis 34. is well resolved III. QUERY â—…t what time was the Prerogative in the Custody of Idiots Lands conferred on the Crown during the Life of an Idiot or Natural Fool SOLUTION Sir Edward Cook tells us That at the making of the â—…atute of Magna Charta c. 4. Anno nono Henrici terâ—… the King had not any Prerogative in the Custody of 〈◊〉 Lands of Idiots during the Life of the Idiot For if 〈◊〉 had had this Act of Magna Charta would have proâ—…ded against Waste c. committed by the Committee 〈◊〉 Assignee of the King to be done in their Possessions 〈◊〉 well as in the Possessions of Wards but at this time â—…e Guardianship of Idiots c. was to the Lords and â—…thers according to the Course of the Common Law â—…nd Idiots from their Nativity were accounted alâ—…ays within Age and therefore the Custody of them â—…as perpetual so long as they lived for that their Imâ—…otency was perpetual And the Lord of whom the â—…and was holden had not a Tenant that was able to do â—…im Service and therefore within the Reason of a Custoâ—…y of a Minor or of an Heir within Age in Case of Wardship And this appeareth by Fleta who attesteth â—…hat anciently Idiots or Natural Fools were in the Cuâ—…tody of the Lords Solent says he Tutores terras Idioâ—…rum Stultorum cum Corporibus eorum Custodire suo perpetuo quod licitum 〈◊〉 Lib. 1. c. 11. nu 10. p. 6. Vide Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Cowell's Instit. lib. 1. tit 23. sect 1. de Curatoribus permissum eo quod sâ—… sos regere non noveruâ—… nam semper judicabaâ—… infra aetatem vel quâ—… verum quia plures per â—… jusmodi Custodiam Exhaeredationem compatiebantur â—… visum fuit communiter concessum quod Rex Corporâ—… Haereditatum hujusmodi Idiotarum Stultorumâ—… perpetuis Custodiam obtineret dum tamen a nativiâ—… fuerint Idiotae Stulti Secus autem si tarde a â—… cunque Domino tenuerunt ipsos maritaret ex oâ—… exhaeredatione salvaret hoc tamen adjecto quod Doâ—… nis Feodorum aliis quorum interfuerit ut in Serâ—… tiis Redditibus Custodiis usque ad legitimam aetaâ—… secundum Conditionem Feodorum releviis hujusmoâ—… nihil juris deperiret But then it is demanded When was this Prerogaâ—… given to the King Certain it is that the King had it â—… fore the Statute of 17 E. 2. de Praerogativa Regis â—… it appeareth in our Books that the King had this Preâ—… gative Anno 3 E 2. And before that it is maniâ—… that the King had it before Britton wrote in the Reigâ—… E. 1. as you may read in his Book Cap. 66. De Gardâ—… f. 167. b. And it is as clear that when Bracton wrote wâ—… wrote about the end of the Reign of H. 3. that the Kiâ—… had not then this Prerogative And therefore it folloâ—… eth that this Prerogative was given to King E. 1. befoâ—… that Britton wrote by some Act of Parliament which not now extant And it appeareth by the Mirror of Iâ—… stices agreeing with Fleta that this Prerogative wâ—… granted by Common Assent Vide Lib. 4. f. 125. Bevâ—… ley's Case Hitherto Coke And now let us see what