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A29951 Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq. Brydall, John, b. 1635? 1700 (1700) Wing B5265; ESTC R19885 74,121 154

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and it shall be a good Plea or Exception to the Demandant or Plaintiff's Suit or Action Fleta lib. 2. cap. 54. numb 3. p. 116. and lib. 6. cap. 38. numb 1. p. 431. and cap. 40. numb 1. p. 434. Bracton lib. 5. tract 5. cap. 20. numb numb 1. f. 420. b. Mirror des Iustices cap. 2. sect 3. s. 117. XIII REMARK There is required in them who contract Matrimony a sound and whole Mind to consent for he that is either an Ideot or Madman without intermission of Fury cannot Marry The Womans Lawyer lib. 2. sect 10. p. 57. Edit 1632. This Consent saith Amesius must be voluntary and free else it 's not esteemed a humane consent and hence the consent of such as have not the use of Reason is no force to such a Contract Lib. 5. cap. 35. Qu. 4. XIV REMARK A Man that is Deaf and Dumb and yet hath Understanding may Attorn by signs but one that is Non compos mentis as an Idiot cannot attorn for that he hath no understanding cannot agree to the Grant Co. Lit. f. 315. a. 26 E 3. 63. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case XV. REMARK Minoribus acquiruntur possessiones naturaliter fatuis furiosis per Tutores inde aliter vero minime eo quod intellectum recipiendi non habent nec retinendi Curatores autem sanum intellectum oportet habere quia si minorem fatuum a Nativitate vel furiosum miseris ut possideas nequaquam videris per eos possessionem apprehendisse quia intellectum non habent Fleta lib. 3. c. 15. nu 1 4. p. 203. VdeBracton lib. 2. c. 18. nu 6. f. 43. b. XVI REMARK It appears in the old Books of Law that it was expedient that Ideots should have a Curator or Tutor or one that should take the charge of their Persons Lands and Goods which Office since Bracton lib. 5. tract 5. c. 20. nu 1. f. 420. b. Fleta lib. 1. c. 11. nu 10. Cowel's Institutes lib. 1. tit 23. sect 1. de Curatoribus is devolved to the King and made parcel of his Prerogative 17 E. 2. cap. 9. As Fitzherbert very well saith in his Natura Brevium The King is the Protector of all his Subjects their Goods Lands and Tenements and therefore of such as cannot govern themselves Stamford Sur Praerog Regis cap. 9. Britton c. 66. f. 167. b. Sir Thomas Smith's Common-weath lib. 2. c. 4. p. 98. Eng. Edit 1640. XVII REMARK The King having the custody of the Persons and Estates of Idiots can let to Farm rendring Rent all the Possessions of a Fool natural but not that which he hath Title unto or Action And therefore upon an Office finding that the Idiot's Ancestors died seized of an Estate Tail it is sufficient to Traverse the dying seized for that only entituleth the King 31 E. 3. Saver de Fault 37. 1 H. 7. 24. Finch's Law lib. 2. c. 2. XVIII REMARK By the Common Law the King shall have as great protection of the Goods and Chattels of an Idiot as of his Lands and that as well the scattering of his Goods 4 Co. f. 128. Beverly's Case and Chattels as the Alienation of his Lands is to be remedied and redressed by the King to whom the Law hath given the Protection and Custody of him XIX REMARK As after Office found an Idiot cannot Alien Give c. So Alienations Gifts c. made before Office found shall be avoided after Office thereof found for no Latches shall be found in the King nor any prejudice thereby shall accrue to the Idiot for not suing the Office before the Feoffment of Gift 4 Co. f. 428. Beverley's Case XX. REMARK If the Idiot dies before Office found after his Death no Office can be found for the words of the Writ are Et ipsum viis modis quibus super statu suo melius poteritis informari circumspecte examinaretis c. which cannot be done when he is dead and without Office the King cannot be entituled 16 E. 3. Livery 30. 4 Co. f. 128. Beverley's Case XXI REMARK When the King is informed that one who hath Lands and Tenements and is a natural Fool from his Birth the King may award his Writ called Idiota inquirendo vel examinando which directed to the Escheator or Sheriff of any County where the King hath information or understanding that there is an Idiot naturally so Born so weak of Understanding that he cannot govern or manage his Inheritance to call before him the Party suspected of Idiocy and examine him and also to inquire by the Oaths of twelve Men whether he be sufficiently witted to dispos●… 〈◊〉 his own Lands with discretion or not and to certifie accordingly into the Chancery for the King as hath been said before hath the Protection of his Subjects and by his Prerogative the Government of their Lands and Substance that are naturally defective in their own discretion Doctor Cowel's Interpreter Brevia de inquirendo de Idiota tit Idiota inquirendo c. Minshew's Guide to the Tongues 373. Note The several Forms of the Writs in Latine directed either to the Escheator or the Sheriff are to be seen in the Register Orig. f. 266. a. b. XXII REMARK When a Man is found an Idiot from his Birth by Office he who is so found Idiot falsely as he supposeth may come personally into The manner how he that is falsely found to be an Idiot shall avoid the Office Chancery before the Chancellor and pray that before him and the Justices and Sages of the Law which he shall call to him and are called the King's Council he may be examined if he be an Idiot or not or by his Friends he may sue forth a a The Writ De Idiota coram consilio ducendo ad examinandum Reg. Orig. f. 267. Writ out of the Chancery returnable in the Chancery ibidem coram nobis consilio nostro examinand And if he be found upon examination that he is no Idiot the Offic found thereof and all the Examinations which hath been made by force of the Writ or the King's Commission is utterly void without any Traverse or Monstrans de droit or other Suit as appeareth by the Register Orig. f. 267. and F. N. B. 233. vide 15 E. 3. in Fitz. Tit. Livery 306. 9 Co. f. 31. The Case of the Abbot of Str●…ta Marcella Stamford super Praerog c. 9. f. 34. a. 36●… Edit 1567. XXIII REMARK If a Scire Facias be awarded against the Feoffee of an Idiot and the Feoffee appearing upon the Scire Facias may traverse the Idiocy as appears he did in the Book of 18 E. 3. XXIV REMARK The Law gave the King but the Custody of the Lands of-the Idiot and altho' the same continued during the Life of the Idiot yet having but the Custody the King hath not the Freehold or Fee but the Freehold is in the Idiot For the