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
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-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
himself before the making of his Testament altho' he do not prove the Testator's Madness at the very time of the making of the Testament the Reason is It being proved that the Testator was once mad the Law presumeth him to continue still in that Case * Praesumptioni standum est nisi contrarium probetur D. 23. 3. 57. in fine D. 4. 2. 23. D. 12. 4. 6. 10. 2 Inst. 477. 10. Litt. 373 b. Bracton l. 1. c. 9. n. 4. Fleta l. 1. c. 6. unless the contrary be proved For like as the Law presumeth every Man to be an honest Man unless the contrary be proved and being proved then he which is evil to be evil still So concerning Furor the Law presumeth every Man to have the use of Reason and Understanding unless the contrary be proved which being proved accordingly then he is presumed in Law to continue still void of the use of Reason and Understanding unless the Testator were besides himself but for a short time and in some peculiar Actions and not continually for a long space as for a Month or more or unless the Testator fell into some Frenzy upon some accidental Cause which Cause is afterwards taken away or unless it be a long time since the Testator was assaulted with the Malady for in these Cases the Testator is not presumed to continue in his former Furor or Frenzy III. QUERY Furor or Madness whether hard to be proved And how it may be proved SOLUTION It is a hard and difficult Point to prove a Man not to have the use of Reason and therefore it is not sufficient Swinburn Part 2. § 3. f. 38. a. Edit 1590. for the Witnesses to depose that the Testator was mad or besides his Wits unless they yield a sufficient Reason to prove this their Deposition as that they did see him to do such Things or heard speak such Words as a Man having Wit or Reason would not have done or spoken namely they did see him throw Stones against the Windows or did see him usually to spit in Mens Faces or being asked a Question they did see him hiss like a Goose or bark like a Dog or play such other Parts as Mad-folks use to do This or the like Reason whereby the Judge may be induced to esteem the Testator not to be of sound Mind ought the Witnesses to yield altho' they be not interrogated of the Cause of their Knowledge IV. QUERY Madness whether it may be proved by singular Witnesses SOLUTION This Furor or Madness may be proved by singular Witness so that the Witnesses be not singular in Swinburn in his Treatise of Wills Part 2. § 3. f. 38. a b. time for if one Witness depose of the Madness of the Testator at one time and another Witness of his Madness at another time this doth not sufficiently prove that the Testator was mad But when the Witnesses agreeing in time one deposeth of one mad Prank another Witness of another mad Act at the same time these prove that the Testator was then mad tho' they do not both depose of one and the same mad Act But if some Witnesses do depose That the Testator was of perfect Mind and Memory and others depose the contrary their Testimony is to be preferred which depose he was of sound Memory as well for that their Testimony tendeth to the Favour and Validity of the Testament as for that the same is more agreeable to the Disposition of Nature for every Man is a Creature reasonable V. QUERY Whether the Grant of a Copyhold Estate made by the Lord of the Copyhold Mannor that is a Mad-man can be good in Law SOLUTION It is to be known That any Person who may be a Grantor in a Deed may be a good Grantor of a Copyhold Estate For this any Person Coke of Copyholds f. 89. 4 Co. f. 23. Clerk Penifather's Case Sheppard's Court-Keeper's Guide cap. 19. p. 108 109 4th Edit 1656. 8 Co. f. 63. b. Swain's Case Man or Woman that hath a lawful Estate in a Mannor for a time may be a good Lord to grant Copyholds take Surrenders make Estates and Admittances according to the Custom of the Mannor notwithstanding the Disability of his Person or Exility of his Estate and therefore 't is held that an Infant an Excommunicate Person a Person Outlawed in an Action Personal a Felon before his Attainder by Outlawry Verdict or Confession a Lunatick or a Man distracted being Lord of a Mannor may grant Copyhold Estates for any time according to the Custom of the Mannor as another Man may do and the Estates made by them are unavoidable VI. QUERY A Mad-man being seized of Land and granting a Rent-Charge out of this same Land dies his Heir entring and the Grantee distraining for Rent-Arrear whether the Heir may bring an Action of Trespass SOLUTION If a Man Non Sanae Memoriae being seized of a Carve of Land in Fee and die and his Heir enter and the P. 12 E. 4. 8 H. 39. H. 6. Perkins § 21. Tit. Grants Grantee distrein for the Rent behind the Heir shall have an Action of Trespass but if the Grantee had distreined in the Life of the Grantor for the Rent behind the Grantor should not have an Action of Trespass for he cannot avoid his own Deed by disabling of himself VII QUERY A Man of Sane Memorie seised of Land makes a Feoffment in Fee and after when he is besides himself or distracted makes a Letter of Attorney for Livery of Seizin which is executed accordingly the Feoffor dies whether the Heir may lawfully enter upon the Feoffee SOLUTION If a Letter of Attorney to make Livery of Seisin is made of certain Land by a Man of unsound Memory 17 Ass. Pl. 17. Perkins § 23. Tit. Grants and the Charter of Feoffment of the same Land was made before when he was of good Memory and then Livery of Seisin was made by force of the Letter of Attorney without other Assent of the Feoffor and the Feoffor die now his Heir may enter upon the Feoffee but the Feoffor himself cannot enter VIII QUERY Whether the Entry of the Heir of a Furor Man be lawful maugre a Descent had in the Life of his Ancestors SOLUTION If a Man that is bereft of his Wits hath cause to enter into his Lands and Tenements Littleton Sect. 405. which another hath in Fee c. and suffers a Discent during the time he was out of his Wits and after dies the Heir of Non Sane Memorie may well enter upon him that is in by Discent for the Heir in this case can well disable the Person of his Ancestors for his own Advantage because no Latches can be adjudged by the Law in him which hath no Discretion in such case And yet his Ancestors which had the same Title could not enter For he who was out of his Memory at the time of such Discent if he will enter after such a Discent
Infant This Case being in the Chancery between the Parishioners and Rolt was referred by the Court to Hobart and Tanfield and they resolved clearly that it was within the Relief of the Statute of 43 Eliz. for tho' the Devise was utterly void yet it was within the Words limited and appointed to charitable Uses Otherwise if he were an Infant Lunatick or the like that gave it or that one appointed that that were not his own to charitable Uses VIII QUERY Actions touching a Lunatick's Lands whether they must be brought in his own Name SOLUTION One Cockes brought an Action of Trespass of Trover and Conversion of Beans against Darson and coming to Trial at the Assizes upon Hobart's Rep. 215. Cockes v. Darson Not Guilty because it was a small Cause the Judge took not the Jury but directed to move the Court and so it was and the Cause was That the Lands whereupon the Beans grew were a Lunatick's and Copyhold and the Lord had granted unto one the Custody of the Land by whose Leave and Assent the Plaintiff did sow the Land And the Court was of Opinion That the Action was to be brought in the Name of the Lunatick For there was no Interest gained in his Land by this Commitment That an Action must be brought in the Name of the Lunatick I shall subjoin what Popham has reported in the Matter The Custody of a Copyholder that was a Lunatick was committed to I. S. Popham's Rep. f. 141. Darcy's Case in the Common Pleas. and for Trespass done upon his Land it was demanded of the Court In whose Name I. S. should bring the Action And their Opinion was That it should be in the Name of the Lunatick IX QUERY Whether the Lord of a Mannor can grant the Custody of a Copyhold belonging to a Lunatick without a special Custom SOLUTION Lord Chief Justice Hobart did not agree That the Lord hath power over the Hobart's Reports f. 215 216. Cockes v. Darson Lunatick's Land without a special Custom for the imitation of the King's Power over Freeholds makes no Consequence For tho' he takes the Statute to be but an â—…ffirmance of the Common Law in the Case of the King â—…et the Collateral Incidents of Estates as Dower Tenancy 〈◊〉 the Courtesie Wardships and the like are not without secial Custom That Copyhold Estates shall not have such Qualities as â—…states at Common Law without special Custom See â—…ore 4 Co. f. 21. Brown's Case f. 22. b. Rivet's Case 〈◊〉 23 Deal Rigden's Case f. 23. Bullock Dibley's Case Cro. Eliz. f. 391. Pl. 14. Clun v. Pease and â—…urner and Palter v. Cornhill f. 361. Pl. 22. X. QUERY Whether the Acts of a Lunatick during his Intermissions or lucid Intervals be binding SOLUTION The Acts that Lunatick Persons do during the time of their Lucida Intervalla tho' it be by Deed in the Country as by Feoffment Obligation or the like shall bind them and others concerned in it as any other Men are by their Acts bound Sheppard in his Abridgment Part 2. Tit. Idiot 4 Co. f. â—…125 a. Beverley's Case of Non compos mentis Bracton lib. 5. tract 5. de Exceptionibus c. 20. nu 1. f. 420. b. Fleta lib. 6. c. 40 n. 1. XI QUERY Whether the King who is to keep the Lunatick his Wife and Children with the Profits of the Lands can granâ—… them over to the proper use of another Person SOLUTION In Trespass Quare clausum fregit and cutting hiâ—… Trees in Paddington in the Country of Middlesex bâ—… Iohn Francis against William Holms The Defendant Hil. 28. H. 8. Rot. 401. in the Common Pleas Francis Holms Case Dyer f. 25. b. 26. a. Pl. 164. Edit 1688. 4 Co. 128. b. Beverley's Case pleaded that it was found by Office before thâ—… Escheator of the said County of Middlesex that thâ—… said Iohn Francis was a Lunatick and that he was seizeâ—… in Fee of the Land in which c. for which the King seised his Person and his Land and by his Letters Patentâ—… granted the Rule Government and Custody of the same Person and Lands to the said Holmes Quamdiu that the Person was Lunatick to take the Profits to his own use and so justified and prayed in Aid of the King and thereupon it was demanded in Law If he should have Aid or not And it was adjudged That he should not have Aid of the King for this Grant was utterly void for the King is bound to keep the Lunatick his Wife Children and Houshold with the Profits of the Lands and without taking any thing to his own use but all to the use of the Lunatick and his Family and all to the intent that the King may provide that he who wanteth Reason should not alien his Lands and waste his Goods And the King after Office found hath only Provision and hath not any Custody of the Body or Lands of a Lunatick as he hath of an Idiot and he hath nothing to grant over But if the King provides one to have Care and Charge of him who is Non compos mentis that his Family shall be maintained and that nothing be wasted or if one of his own Head taketh so much upon himself in this Case he is but as Bailiff of him that is Non compos mentis and shall be accountable to him as Bailiff or to his Executors or Administrators and he cannot cut down Trees but for necessary House-boot Plough-boot and Cart-boot and to repair the ancient Pales and all that the Bailiff may do he may do and not otherwise XII QUERY Whether the Committee of a Lunatick can grant Copyhold Estates SOLUTION The Committee of a Lunatick cannot grant Copyhold Estates but he himself may do so by his Steward as appears by this subsequent Resolution A. seised of a Mannor for Life where there were many Copyhold Estates grantable Trin. 9 Iac. in the Court of Wards Blewits Case Leonard 47 48. by Copy of Court-Roll for Life in Possession and for another in Reversion granted the Stewardship by Deed under his Hand and Seal to I. S. for Life with a Fee for executing thereof and after he became a Lunatick and Non compos mentis and so was found by Inquisition who was committed to I. D. under the Seal of the Court of Wards The Question was Whether the Steward by the Consent of the Committee or the Committee himself by their Steward might grant Copyhold Estates according to the Custom of the Mannor It was resolved by Hobart Chief Justice and Tanfield Chief Baron That the said Committee could not grant any Copyhold Estate for that they themselves by Law had no Estate in the Mannor nor are Lords thereof for the time being but that the said Lunatick by his Steward might grant Copyhold Estates according to the Custom of the Mannor XIII QUERY If a Dean of Paul's happen to be a Lunatick who shall have the Custody of him SOLUTION In the Reign of H.
Statute of Praerogativa Regis c. 9. saith Quod post mortem eorum reddet ea rectis Haeredibus That after the Death of such Idiots he shall render it to the right Heirs 17 E. 3. 11. 13 E. 3. Saver Default 37. 4 Co. f. 126. b. Beverley's Case Stamford Super Praerog c. 9. is of the same Opinion Tho' the King saith he has the possession during the Idiot's Life yet the King hath 1 H. 7. 15. not the Freehold thereby but only a bare Custody for the Freehold remains in the Heir XXV REMARK The King ought not to seize an Idiot's Lands until such time as he is found an Idiot by Office Stamford Super Praerog Regis c. 9. XXVI REMARK The Office when a Person is found to be an Idiot shall have relation a Nativitate to avoid all mean Acts done by him that is to say Feoffments Releases or the like Fitzherbert and Stamford Super Praerog c. 9. XXVII REMARK Altho' the Statute of Praerogativa Regis c. 9. saith Custodiam Terrarum yet the King shall have as well the Custody of the Body and of the Goods and Chattels of Idiots as of their Consillo Opera Curatoris tueri debet non solum Patrimonium sed corpus salus furiosâ—…seu fatui D. 25. 10. 7. Lands and other Hereditaments as well those which they have by Purchase as those which they have as Heirs by the Common Law 4 Coke f. 127. a. Beverley's Case XXVIII REMARK The Person by the Statute ought to be an Idiot a Nativitate sc. Fatuus Naturalis and not by Accident or Infirmity For if he were once Wise and became a Fool by Misfortune the King shall not have the Custody of him 18 E. 3. Fitz. Tit. Scire Facias Pl. 10. Fitzherbert's Natura Brevium Stamford Super Praerog Regis c. 9. f. 34. b. 4 Co. Beverley's Case XXIX REMARK No Feoffment Gift Lease or Release that an Idiot can make of his Inheritance but it may be avoided during his Life which is apparented by these words of the Prerogative Statute Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum Hâ—…redes exhaeredentur So that such Idiots shall not alien nor their Heirs shall be disinherited 4 Co. 127. Beverley's Case Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. XXX REMARK The King is to take the Profits belonging to the Idiot to his own use finding him Necessaries and this is evidenced by the words of our Statute Capiendo necessaria sua Stamford Super Praerog Regis c. 9. f. 34. b. The King says Wingate shall have to his own use all the Possessions of a Fool Natural during his Idiocy His Body of the Common Law of England c. 2. of Possessions Nu. 3. XXXI REMARK The King is bound to Reparations of the Idiot's Lands and Tenements for the words of the Statute are The King shall have the Custody of the Lands of Natural Fools taking the Profits of them without waste or destruction Stamford Super Praerog Regis cap. 9. f. 35. a. XXXII REMARK The King by the Statute of Praerogativa Regis is to be preferred in this Title of Idiocy before any other Lord which might claim the Idiot as his Ward and this is evidenced by the words of the said Statute De cujuscunque feodo Terrae illae fuerint Of whose Fee soever the Lands be holden Stamford Super Praerogativam Regis c. 9. f. 35. a. Edit 1567. XXXIII REMARK If one be found an Idiot by Office and before the King doth make a Seizure of the Lands the Idiot departs this Life yet the King shall seize the Lands because of these words of the Statute Post mortem eorum eam rectis Haeredibus After the Death of such Idiots he shall render it to the right Heirs Which the King cannot do but upon a Seizure Stamford Super Praerog Regis c. 9. f. 34 a b. XXXIV REMARK When an Idiot doth sue or defend he shall not appear by Guardian or Prochein Idiota a nativitate non recipitur vel ad agendum vel defendendum in aliqua causa per Custodem vel proximum propinquum sed requiritur ut ipse semper praesens sit in propria persona Cowell's Institutes lib. 1. tit 23. sect 6. de Curatoribus Amy or Attorney but he must be ever in Person and whosoever will plead best for him shall be admitted 33 H. 6. 18. 21. F. N. B. 27. G. Co. Lit. f. 135 b. Stampford c. 9. 35. b. 36. a. 4 Co. 124. b. Beverley's Case Saunders Rep. 2 Part f. 335. Dennis v. Dennis But an Infant or a Minor shall sue by Prochein Amy and defend by Guardian 27 H. 8. 11. 40 E. 3. 16. 20 E. 4. 2. F. N. B. 27. H. Co. Litt. f. 135. b. Cro. Iac. f. 640 641. Simpson Simpson v. Iackson 4 Co. f. 124. b. Beverley's Case XXXV REMARK By the Statute of Westmin 2 c. 15. it is ordained That if an Infant be eloined he may sue by Prochein Amy but this same Statute extendeth not to an Idiot Co. Inst. f. 391. XXXVI REMARK A Descent shall not take away the Entry of an Idiot albeit the want of Understanding was perpetual for Cook in his Comment on Littleton sect 405. f. 247. a. Littleton sect 405. speaks generally of a Man of Non sane Memorie Vide Noy's Treatise of the Grounds of the Common Law Cap. 16. Of Descents XXXVII REMARK If an Idiot makes a Feoffment in Fee he shall in Pleading never avoid it by saying That he was an Idiot at the time of his Feoffment and so had been from his Nativity But upon an Office found for the King the King shall avoid the Feoffment for the benefit of the Idiot whose Custody the Law giveth to the King 39 H. 6. 42. b. F. N. B. 202. 5 E. 3. 70. Britton cap. 28. f. 66. a b. Coke in his Comment on Littleton sect 405. f. 247. a. Stamford in his Exposition of the Statute of 17 E. 2. cap. 9. XXXVIII REMARK A Copyholder of unsound Memory an Idiot or Lunatick cannot forfeit his Estate Sheppard in his Treatise entituled The Court-Keeper's Guide cap. 22. p. 172. Edit 1656. XXXIX REMARK A Grant or Surrender of Copyhold-Land made by an Idiot is not valid in the Laws of England Sheppard's Court-Keeper's Guide Cap. 19. Page 117 118. XL. REMARK A Surrender or Grant of Copyhold-Land may be made to an Idiot or any other Man of unsound Memory and good in Law Sheppard Cap. 19. p. 118 119. XLI REMARK By the Statute of 32 H. 8. c. 46. the Master of the Court of Wards and Liveries by the Advice of the Attorney Receiver-General Note This Act of 32 H. 8. for the Erecting of the Court of Wards is taken away by the Statute of 12 Car. 2. c. 24. and Auditors or three of them had Authority to survey govern and order all and singular Idiots and Natural Fools now being in the King's Hands or
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.
poor Man's Nose that as if he had been fast holden with a Pair of Pincers he had no power to pass from thence until he had to stay the Fury of his raging Appetite eaten a piece of Bread which he had of Charity gotten in another place In the eating whereof his Sense was so delighted with the fresh Smell of the Cook 's Cates that albeit he did not lay his Lips to any Morsel thereof yet in the end his Stomach was so well satisfied with only the Smell thereof that he plainly acknowledged himself thereby to have gotten as good a Breakfast as if he had indeed eaten his Belly-full of the best Cheer Which when the Cook had heard being an egregious Wrangler and an impudent Companion what doth he but all hastily steps forth to the poor Fellow lays fast Hand upon him and in a hot Cholerick Mood bids him pay for his Breakfast The honest poor Man half amazed at this strange Demand wist not well what to say But the Cook was so much the more fierce and earnest by how much he perceived the good Man to be abashed at his Boldness and did so cunningly cloak the Matter that in the end the poor Man was contented to refer the deciding of the Controversie to whatsoever Person should next pass by that way and without any more ado to abide his Judgment which thing was no sooner concluded but by and by cometh unto the place a very Natural Fool and such a notorious Idiot as in all Paris his like was not to be found All the better for me thought the Cook for more he doubted the Sentence of a wise Man than of a Fool. Well Sir to this foresaid Judge they rehearsed the whole Fact the Cook cruelly complaining and the other patiently confessing as before A great multitude of People were gathered about them no less desirous to know what would follow than wondering at that which had gone before To conclude this Natural perceiving what Money the Cook exacted caused the poor Man to put so much Money betwixt two Basons and to shake it up and down in the Cook 's hearing Which done he did arbitrate and award That as the poor Man was satisfied with only the Smell of the Cook 's Meat so the Cook should be recompensed only with the Noise of the poor Man's Money Which Judgment was so commended that who so heard the same thought if Cato or Solomon had been there to decide the Controversie they could not have given a more indifferent or just Sentence The like Case is reported to have hapned at Bononia * And. Barba in c. ad nostram de consuetud extr n. 8. There a certain covetous Man lost his Purse with 21 Ducats in it which when he could not recover with diligent Search he raved like a Mad-man and in the end was ready to have hanged himself for Sorrow Another honest Man having found such a Purse moved with Compassion came and delivered the same to this covetous Person who never thanking the Bringer fell forthwith to telling of the Money and finding but 20 Ducats therein with great Greediness he exacted the odd Ducat which because the Finder denied he is brought before the Magistrate a Man of very great Wealth but of very little Wit but such Magistrates are many times elected where the Matter lieth in the Mouths of the Multitude The one Party sweareth That there were 21 Ducats in the Purse which he lost The other Party sweareth That there were but 20 Ducats in the Purse which he found The Magistrate altho' a Fool gives no foolish Sentence for he pronounced ' That the Purse which was found was not that Purse which was lost and therefore condemned the covetous Person to restore the 20 Ducats to the other Party I may add hereunto a third Story of one that being a Natural Fool discovered a Daniel's History p. 29 30. in vita W. 1. Edit 1634. Sir Iohn Heyward's History of W. 1. p. 14 15. Edit 1613. Conspiracy and it is thus Guy Earl of Burgogne who had taken to Wife Alix Daughter to Duke Richard the Second and Aunt to William Duke of Normandy conspired with Nicellus President of Constantine Ranulph Viscount of Bayon Raimond and divers others suddenly to surprize the Duke and slay him in the Night A certain Fool nothing regarded for his want of Wit observing their Preparations secretly got away and in the Dead of the Night came to Valogne where the Duke then lay no less slenderly guarded with Men than the Place it self was slight for Defence Here he continued rapping at the Gate and crying out until it was opened and he brought to the Presence of the Duke to whom he declared the Conspiracy with Circumstances of such Moment that the Duke forthwith took his Horse and posted alone towards Falais an especial Place of Strength for Defence Presently after his Departure the Conspirators came to Valogne they beset the House they enter by force they search every Corner for the Duke and finding that the Game was start and on foot in hot haste they pursued the Chase. By these Reasons and Examples therefore it may be reasonably inferred that if a Fool do make a wise and reasonable Testament the same ought to be allowed as lawful Nevertheless this is the truer Opinion that such a Testament is not good the Reason is because a Testament is an Act to be performed with Discretion and Judgment Swinburn in his Treatise of Testaments and Last Wills Second Part Sect. 4. p. 41. b. Edit 1590. But a Natural Fool by the general Presumption of Law doth not understand what he speaketh tho' he seem to speak reasonably no more than did Balaam's Ass when he reasoned with his Master or doth a Parrot speaking to the Passengers And altho' Almighty God does sometimes so illuminate the Minds of very Natural Fools and Idiots that they do well perceive and understand what they speak yet because this thing hapneth but very seldom the Law doth not presume the same by occasion of Words only And therefore unless further Proof made thereof by other Circumstances the Law doth not approve such Testaments Indeed if it may appear by sufficient Conjectures that they had the Use of Reason or Understanding at such time as they did make their Testaments then doth the former Opinion take place Decius in L. Furiosi C. qui Testa fac poss in L. in negotiis Reg. Iur. F. IX QUERY If an Idiot above the Age of 21 Years makes a Feoffment in Fee of his Inheritance how and in what manner this Feoffment may be avoided during his Life SOLUTION If it be found by Office at the King's Suit that he was Idiot a Nativitate and that he aliened his Lands Co. lib. 4. f. 124. a. 127. Beverley's Case then upon a Scire facias against the Alienee the Land â—…hall be seized into the King's Hands and thereby the Inheritance shall be re-vested in 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
of this Land that they shall have the Custody of all the Lands of Natural Fools and may take the Profits Swinburn in his Treatise of Testaments and Last Wills 3. Part § 11. nu 13. p. 99. a. b. Edit 1590. thereof without waste oâ—… destruction of whose Fee soever the same be holden finding to them Necessaries and after the Death of such Idiots the Land must be restored to the right Heirs But in the mean time that is to say during the Life of the Idiot the Tuition of the Idiot or of his Lands cannot be devised by Testament to any other Person contrary to the Course of the Common Law in prejudice of him to whom the Wardship doth belong saving the Testator may commit the Custody of such Goods and Chattels as he doth bequeath to the Idiot to whom he will and during so long time as he will * Si quidem unusuisque potest rebus suis quam velit legem imponere Mautic l. 7. tit 1. nu 38. Et Testatoris voluntas habetur pro lege L. Servus de manumiss licet alias videatur per Fitzherbert's Nat. Br. de Idiots inquirendo quod bona quae Idiotae obvenirent suo Gardiano accrescunt Quaere tamen per Stamford super Praerogativam Regis c. Idiot C. XVI QUERY Idiocy whether in any Case triable in the Ecclesiastical Court SOLUTION If an Administrator sue for a Legacy due to the Deceased Mich. 15 Iac. B. R. Inter Percher Wheeble per Curiam Dr. Godolphin in his Repertorium Canonicum c. 11. p. 120. § 17. in the Ecclesiastical Court and the Defendant plead the Release of the Deceased and the Plaintiff avoid it for that the Deceased was an Idiot that Idiocy shall be tried there and no Prohibition shall be granted for that they have Jurisdiction of the Original Matter and that according to the old Rule to be found in the Register and in the Books of Law Non est consonum Rationi quod cognitio accessorii Cujus Juris i. e. Jurisdictionis est principale ejusdem Juris erit accessorium in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum noscitur pertinere Register Orig. f. 58. a. Co. 2 Inst. f. 493. Cro. Jac. f. 269. Roberts Case Cro. Car. Netter v. Bret. Cro. Jac. f. 348. Egerton v. Egerton 12 Co. f. 65. Tit. Court Ecclesiastical C. Bulâ—…rode's Reports Second Part f. 210 211. Egerton v. Egerton XVII QUERY An Executor having obtained Iudgment in an Accompt and having the Defendant in Execution for Arrerages and the Testament being afterwards annulled for Idiocy in the Testator whether the Testament being disapproved an Audita Querela will lie for the Defendant SOLUTION Anno 35 H. 8. in the Exchequer Chamber a Case was well debated by the Justices 3 4 Eliz. Dyer f. 203. b. 204. a Co. lib. 8. f. 144. Drury's Case of both Benches which was â—…uch One Moyer who was Executor of the Testament of Iohn Gisors sued a Writ of Account against one Carvanel as Receiver of the Money of the said Gisors the Defendant pleads Ne unques Receiver pur Accompt render And it was found for the Plaintiff and Judgment given that he should account and upon this a Capias ad Computandum was awarded Whereupon the Defendant came in and Accounts in Ward and he was found in Arrerages and his Body was committed to Prison for Execution And after the said Testament was annulled by Sentence in the Spiritual Court for that the said Iohn Gisors the Testator was an Idiot from his Birth and this Record Spiritual is certified into the Chancery by Writ and thence sent into the King's Bench where the Action of Accompt was brought And the said Carvanel sued forth an Audita Querela in the same Court containing this Matter in his Writ and a Venire Faciaâ—… against Moyer who demurred in Law upon the whole Matter And it was resolved that the Audita Querelâ—… did lie because the Will was disapproved and annulled XVIII QUERY Whether an Attornment made to a Grant by an Idiot 〈◊〉 other Non compos mentis can be good in Law SOLUTION A Man that is an Idiot or other Non compos mentiâ—… cannot Attorn For he who is Amens without Understanding cannot make an Attornment which is an Agreement And yet if a Man Non compos mentis be Lesse for Years rendring Rent and the Lessee ejecteth him and maketh a Feoffment and afterwards the Non compâ—… mentis re-entreth this Act of Re-entry doth subject himself to Distress and an Action of Waste altho' he cannâ—… make an express Attornment Coke in his Comment oâ—… Littleton sect 566. f. 315. a. 6 Co. 69. a. Sir Moyle Finchâ—… Case 32 E. 3. Age 80. 18 E 3. 35. XIX QUERY Whether an Inquisition shall bind an Idiot without an Examination by the Council SOLUTION It was said by Dyer in the Case of one Brent that the Law is Altho' a Man be found an Idiot by Inquisition Dallison's Rep. pl. 19. f. 95. yet he ought to be examined by the Counsel and affirmed by them to be an Idiot or otherwise he shall not be bound by the Inquisition And he said further That Brent was found an Idiot by Inquisition and after being examined by the Lords of the Star-Chamber he was adjudged to be no Idiot whereupon he was delivered from the Thraldom of Idiocy XX. QUERY No Possessions in Lands descending to an Idiot but only a Right whether the King can enter and have the Custody of it SOLUTION If there descend to an Idiot no Possession in Lands but only a Right be it Right of Entry or Title of Entry or Right of Action the King shall not enter and have the Custody of the same 1 H. 7. 15. Stamford Super Praerog Regis c. 9. f. 35. b. Edit 1567. Hitherto of the Description Remarks and Queries relating to an Idiot or Sot Natural I proceed now to speak of the Furor Man that is totally bereft of his Wits PART the Second Of him who is by Accident wholly deprived of his Wits SECT I. This sort of Non Compos Mentis how described HE is said to be one that was of good and sound Memory and by the Visitation of God through some Sickness Grief or other Accident utterly loseth Furor est continuata mentis Alienatio qua quis omni intellectu caret D. 1. 18. 14. Gothofredus ad Lor. his Memory and Understanding and so falls into some high or low degree of Fury or Madness Co. Litt. f. 247. a. 4 Co. f. 124. b. Beverley's Case of Non compos mentis SECT II. The Remarks concerning Mad or Distracted Persons I. REMARK THE true Account of the Cause of Distraction is this When the Animal Spirits by some Accident or other are so over-heated that they become unserviceable Dr Goodman's Treatise entituled The Penitent pardoned under the Parable of the Prodigal Part 1. c. 5. p. 123 124.
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