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-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
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
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
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
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.
his Ancestor was Non compos mentis shall avoid it by Entry Plea or Writ And therewith the greatest Authorities of the Law-Books agree and so it was resolved with Master Littleton in Beverley's Case where it is said That it is 4 Co. f. 126 127. a Maxim of the Common Law That the Party shall not disable himself XXI REMARK If a Furor Man or a Man of Non sane Memorie make a Feoffment c. he himself cannot enter nor have a Writ Dum non fuit compos mentis but after his Death his Heir may well enter or have the said Writ of Dum non fuit compos mentis at his Choice Littleton sect 406. Exposition of Terms of the Law f. 138. a. b. tit Dum non fuit compos mentis Natura Brevium f. 128. a. b. Edit 1551. XXII REMARK Mad-folks during the time of their Furor or Insanity of Mind cannot make a Furiosi testamentum facere non possunt quia mente carent In adversa corporis valetudine mente captus tempore testamentum facere non potest Senium aetatis vel aegritudinem corporis sinceritatem mentis tenentibus testamenti factionem certum est non auferre Testament nor dispose any thing by Will no not ad pias Causas the Reason is most forceable because they know not what they do For in making of Testaments the Integrity and Perfectness of Mind and not Health of the Body is requisite and thereupon arose that common Clause used in every Testament almost Sick in Body but of perfect Mind and Memory Swinburn in his Treatise of Testaments and Last Wills 2d Part sect 3. f. 34. b. Edit 1590. Inst. 2. 12. 1. Cod. 6. 22. 9. Cod. 6. 36. 5. Cod. 6. 22. 3. Caius lib. 2. tit 2. de Testamentis Ulpianns tit 20. de Testamentis 6 Co. 23. Marquess of Winchester's Case XXIII REMARK The Impediment of Furor or Madness is so strong that if the Testator make his Testament after this Furor or Madness have overtaken him and whiles as yet it doth possess his Mind albeit the Furor afterwards departing or ceasing the Testator recover his former Understanding yet doth not the Testament made during his former Fit recover any force * Quod initio vitiosum est non potest tractu temporis convalescere D. 50. 17. 29. l 178. l. 201. l. 210. 1. 80. D. 34. 7. 1. D. 44. 7. 27. non firmatur 18 de Reg. in 6. D. 49. 1. 16. nisi duo quae sequuntur concurrunt vitii sc. Cessatio novissimus Actus i. e. nisi principium ipsius rei utile sequatur verbis vel actibus extrinsecus declaratis veluti Ratihabitione aliqua or strength thereby Cod. 6. 22. 9. Instit. 2. 12. 1. Swinburn in his Tract of Wills Part 2. sect 3. nu 3. p. 36. b. 37. a. Edit 1590. Godolphin's Tract entituled The Orphan's Legacy Part 1. cap. 8. nu 2. XXIV REMARK If a Man whilst he is mad or in a distracted Condition be admitted by a Judge to levy a Fine his Declaration Note He that is enabled to the Principal that is the Fine shall not be disabled to do the Accessory that is the declaring the uses of the Uses shall bind him and his Heirs as long as the Fine remaineth in force 2 Co. f. 58. b. Co. lib. 12. f. 123. Mansfield's Case 10 Co. f. 42. b. Mary Portington's Case XXV REMARK If a Furor Man grant a Rent-Charge out of Land his Heir may avoid it and hold it discharged Sheppard in his Abridgment Tit. Idiots XXVI REMARK He that is not a good Grantor cannot make a good Grant or Surrender of copyhold-Copyhold-Land without a special Custom to enable him thereunto And hence it is that a Surrender made by a Mad man is not good but void in Law Sheppard of Copyholds c. 12. p. 117 118. XXVII REMARK A Surrender or Grant of Copyhold-Land may be made to a Lunatick and to one that was of good and sound Memory and by the Visitation hath lost it Sheppard's Court-Keeper's Guide c. 19. p. 118 119. XXVIII REMARK If a Man of None sane M. 1. Mar. 1. Br. Dum non fuit compos mentis 7. memorie be a Judge all Acts done by and before him shall stand good in Law XXIX REMARK If a Woman being in a Frenzy and of unsound Memory kill her Husband or another Man or Woman she shall not forfeit her Dower 12 H. 3. Dower 183. Perkins sect 365. Tit. Dower XXX REMARK A Descent during Minority Marriage Imprisonment Non sanae mentis or being out of the Realm do not take away an Entry Noy in his Grounds of the Laws c. 16. Of Descents XXXI REMARK A Man becoming Non compos mentis by Accident is disseised and suffers a Descent albeit he recover his Memory and Understanding again yet he shall never avoid the Descent Coke in his Comment on Littleton sect 405. f. 247. a. XXXII REMARK Albeit the Eldest Son of a Sovereign Prince be unfit to bear Rule albeit he be unable to Govern either others or himself as if he be in a high degree furious or foolish or otherwise defective in Body or in Mind unless he degenerate from Humane Condition yet he cannot therefore be excluded from Succession because it is due unto him not in respect of Ability but by reason of his Priority of Birth Sir Iohn Heyward in the Life of William II. p. 147 148. Edit 1613. From the Remarks come we to the Queries concerning Mad-men SECT III. The Queries with their Solutions relating to Furor Men. I. QUERY Whether Madness or Insanity of Mind ought to be proved by him that objecteth the same SOLUTION EVery Person is presumed to be of perfect Mind and Memory unless the contrary be proved And therefore if any Person go about Swinburn in his Treatise of Wills Part 2. Sect. 3. n. 5. p. 37. a. b. Edit 1590. to impugn or overthrow a Testament by reason of Madness Insanity of Mind or want of Memory he must prove that Impediment And if it be demanded Wherefore then is that usual Clause Of perfect Mind and Memory so duly observed in every Testament if he that doth prefer the Will be not charged with the Proof thereof It may be answered That that which is notorious is to be alledged not proved And so this Notorium probatione non indiget Zouch's Elements Pars 5. § 6. de Evidentia Causae being accounted notorious because where the contrary appeareth not the Law presumeth it it need not be proved And therefore 't is supposed that that Clause is more usual than necessary and yet not hurtful II. QUERY Madness before the making of a Testament whether it can be presumed to continue SOLUTION It may be delivered for a Rule That it is sufficient for the Party which pleadeth the Insanity of a Testator's Swinburn Part 2. Sect. 3. p. 37. b. 38. a. Edit 1590. Mind to prove that the Testator was besides