touching his Life as his Goods Chattels or Lands or any other thing concerning him The Rule Necessitas inducit privilegium quoad Iura privata doth vouchsafe to The Lord Bacon in his Collection of Maxims Regula 5. p. 25. Edit 1639. admit an Exception when the Law doth intend some Fault or Wrong in the Party that hath brought himself into the necessity so that is Necessitas culpabilis as for Example If a Mad-man commit Felony he shall not lose his Life for it because his Infirmity came by Co. Litt f. 247. b. the Act of God But if a drunken Man commit a Felony 21 H. 7. 31. he shall not be excused because his Imperfection came by his own default For the Reason and Loss of Deprivation of Will and Election by Necessity and by Infirmity is all one for the lack of Arbitrium Solutum is the Matter And therefore as Infirmitas culpabilis excuseth not no more doth Necessitas culpabilis So that it appears that if one through his own fault becomes Non compos mentis or Mad and that if through the Violence of the same Madness he hurt another he hath therein committed a Crime and deserves to be punished II. QUERY A Drunken Person whether he may make a Testament SOLUTION He saith Swinburn that is overcome with Drink during the time of his Drunkenness is compared to a Treatise of Testaments and last Wills Part 2. Sect. 6. Mad-man and therefore if he make his Testament at that time it is void in Law Which is to be understood when he is so excessively drunk that he is utterly deprived of the use of Reason and Understanding Otherwise if he be not clean spent albeit his Understanding be obscured and his Memory troubled yet may he make his Testament being in that Case We will subjoyn to what Swinburn has said for the Solution of our Question the Words of Dr. Godolphin which are to the same effect Such as are drunk during the time of being drunk can make no Testament that shall be good in Law Orphan's Legacy Part 1. c. 8. § 5. p. 26. yet understand says he this is only when he is so excessively drunk that he is altogether deprived for the time of the use of Reason and Understanding being according to the Flagon-phrase as it were dead drunk For if he be but so drunk that his Understanding is but somewhat clouded and obscured and his Memory troubled he may in that Case make his Testament and it may be good in Law He therefore that is but exhilarated with Liquor and thereby doth but somewhat deviate from the Rule of right Reason is not the Person whom the Law renders at that time Intestable but he who by a continual Custom of Toping or by such an Excess of Drunkenness hath so exiled his Intellects that he hath as it were totally lost the Rational and reserved nothing to himself but the Animal Concerning the drunken Man's Will see more in Vasquez de Success Crea lib. 2. sect 13. Requis 7. n. 8. Simon de pratis de inter ult vol. lib. 2. dub 1. soluc 4. n. 22. III. QUERY 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 SOLUTION The Lawyers tell us That defamatory Words are uttered either upon some Rancour and Malice by Ridley's View of the Civil and Ecclesiastical Law Part 3. cap. 7. sect 1. some that envy another with intent to defame him and spread abroad a Matter of Disgrace upon him or in some scoffing and jesting manner so as facetious and merry Men use to do to make the Company merry wherein they are or they are spoken by some that have some Weakness or Distemperature in their Brain either by Frenzy Drink or other Lightness or by any Rashness in their Tongue 1. If the Cause of such Words be Rancour or Malice then are they altogether to be punish'd for that there can be no just Excuse made for them 2. If they be spoken in a jesting manner to make the Company merry if it be in a fine sort delivered it is by Aristotle held to be a Vertue* but if it be in homely In Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Latin Urbanitas and gross sort delivered then is it accounted to be a kind of Rudeness or Rusticity but whether way so ever they be uttered there is for the most part no advantage taken against them unless thereby there follow any Discredit to the Party upon whom such Jests are broken for then are they not without blame Neither can Lusus Noxius in Culpa est D. 1. 2. 10. D. 47. 2. 50. 4. that be called a Jest or Sport whereby a Man 's good Name is hurt or any Crime imposed upon him 3. The like may be pronounced of such as speak hardly of any by the Lubricity of their Tongue or Weakness of their Brain through Frenzy or Drink who for that they are not thought to speak such Words maliciously pass for the most part unpunished * Nam personam spectandum esse an potuerit facere an ante quid fecerit an cogitaverit an sanae mentis fuerit nec lubricum linguae ad poenam facile trahendum est Quamquam ii temerarii digni poena fint tamen ut insanis parcendum est D. 48. 4. 4. 3. no tho' a Man in this Case speak ill of the Prince himself And the Civil Law is so far from taking hold of such Words in these Cases that the Roman Emperors themselves viz. Theod. Arcad. and Honorius have in an ancient Constitution extant in the Code of Iustinian said of them thus Siquis Modestiae nescius pudoris ignarus improbo C. 9. 7. Lex unic Siquis Imperatori malediderit petulantique maledicto nomina nostra trediderit lacessenda ac temulentia †Drunkenness Temulentus Drunken Cup-shot of such see more D. 48. 3. 12. D. 48. 19. 11. 2. D. 49. 16. 6. 2. turbulentus obtrectator temporum nostrorum fuerit eum poenae nolumus subjugari neque durum aliquid nec asperum volumus sustinere Quoniam si ex levitate processerit contemnendum est Si ex insania miseratione dignissimum Si ab injuria remittendum* If any Man Note Queen Elizabeth after Sir John Perot was condemned to die was often heard to commend the Rescript of those Emperors p. 411. Engl. Edit 1635. speak ill of the Emperor if Cambden's Eliz. Anno 1593. of Lightness it is to be contemned if of Madness to be pitied if of Injury to be remitted I shall conclude the whole Tract with a remarkble Example that I have met withal and which I cannot here Peter de la Primauday in his French Academy c. 36. let go in Silence and 't is of the Prudence of Dionysius the Elder King of Syracuse in punishing evil Speakers This King being told That two young Men as they were drinking together had spoken many outrageous Words of his Majesty The King invited them both to Supper and perceiving that one of them after he had taken a little Wine into his Head uttered and committed much Folly and that contrariwise the other was very stayed and drunk but a little the King punished this Fellow as one that was malicious and had been his Enemy of set purpose but forgave the other as being drunken and moved by the Wine to speak ill of him FINIS Books printed for and sold by Isaac Cleave at the Star next Serjeants-Inn in Chancery-Lane THE. 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the Judges in Beverley's Case Sir Robert Holbourn in his Reading upon the Statute of 25 E. 3. c. 2. De Proditionibus Reading Printed Anno 1681. p. 17 18. says thus All Ages are within this Law as in Folks which have Knowledge or Men of Non Sanae Memoriae and a Mad-man is also within this Law as to that part of the Statute which concerns more immediately the Person of the King For if any of them aforementioned in this Division shall compass his Death it is Treason within the first Clause but not in the Clause of levying War But a Man that is Surdus coecus mutus is not within this Law for it is impossible for him to have Understanding And afterward he tells us That I. S. after he became mad kills the Queen this is Treason P. 31 32 33 34. within this Law First Because a Man may counterfeit himself to be mad and he may do it so cunningly as it cannot be discerned whether he be mad or no. The Second is in respect of the great Esteem that the Law gives to the Person of the King for he is the Fountain of Justice And for the Proof of this Point that it may be understood we ought to see what the Common Law was before the making of this Statute as to this Point and then ought to enquire and see how the Law is altered since the making of the Statute and by this means we shall find out the Law and the Reason thereof It is true that the Law without special words will not bind an Infant or a Mad-man as to the Punishment of their Bodies but yet it will extend to their Lands and Estates But this our Law is no new Law but only a declarative Law and in that Case general words will bind an Infant or a Mad-man without any special words That it was Treason at the Common Law is apparent Britton f. 16. a. c. 8. c 22. f. 39. a. b. Mirror c 2. § 11. c. 1. § 4. Vide Bracton fol. 118. b. in Britton and the Mirror of Iustice and this Statute doth not declare who shall be Traitors but what shall be Treason and therefore by this Act it is Treason in a Mad-man or whomsoever shall commit it for a Mad-man is not excepted out of this Law And to make this appear more fully you may be pleased to read the Case of Beverley That a Man that is Non compos mentis may commit High-Treason altho' he cannot commit Petty-Treason nâ—…r Felony And so it is also in Dalton's Iustice of Peace 206. That if a Man that is Non compos mentis shall kill the King this is High-Treason Nay Beverley's Case goes farther and says That if he shall offer only to kill the King this is High-Treason Thus much for the Opinions of the Judges in Beverley's Case and of Holbourn now let us see what Sir Edward Coke says concerning Mad-men as to the Point of committing High-Treason A Man saith he that is Non compos mentis or an Infant within the Age of Discretion is not un Home Coke in his Third Institutes fol. 4. within the Statute of 25 E. 3. c. 2. for the principal End of Punishment is That others by his Example may fear to offend * Ut unius poena metus possit esse multorum D. 16. 3. 31. D. 48. 3. 6. Cod. 9. 27. 1. D. 48. 19. 6. 1. Ut poena ad paucos metus ad omnes perveniat But such Punishment can be no Example to Mad-men or Infants that are not of the Age of Discretion And God forbid quoth he that in Cases so penal the Law should not be certain And if it be certain in Case of Murther and Felony a fortiori it ought to be certain in Case of Treason If a Man commit Treason or Felony and confesseth the same or be thereof Convict if afterward he Co. 3 Inst. f. 4. become De non sane Memorie qui patitur exilium mentis he shall not be called to answer Or if after Judgment he become De non sane Memorie he shall not be executed for it cannot be an Example to others Add to what he said before this which follows If a Mad-man had killed or offered to kill the King it was holden for Treason and so it appeareth by King Co. 3 Inst. f. 6. Alfred's Law before the Conquest But now by the Statute of 25 E. 3. c. 2. and by force of these words Fait compasser ou imaginer la mort he that is Non compos mentis and totally deprived of all Compassings and Imaginations cannot commit Treason by Compassing or Imagining the Death of the King For Furiosus solo furore punitur But it must be an absolute Madness and a total Deprivation of Memory And this appeareth by the Statute of 33 H. 8. for thereby it is provided That if a Man being Compos mentis Cap. 20. commit Treason and after Accusation c. fall to Madness that he might be tried in his Absence c. and suffer Death as if he were of perfect Memory For by this Statute of 25 E. 3. a Mad-man could not commit Treason It was further provided by the said Act of 33 H. 8. That if a Man attainted of Treason became mad that notwithstanding he should be executed which cruel and inhuman Law says he lived not long but was repealed For in that Point also it was against the Common Law because by Intendment of Law the Execution of the Offender is for Example but so it is not when a Mad-man is executed but should be a miserable Spectacle both against Law and of extreme Inhumanity and Cruelty and can be no Example to others XIV QUERY Whether a Mad-man be punishable in Trespass SOLUTION In Capital Causes in favorem vitae the Law will not punish in so high a degree Sir Francis Bacon in his Elements of the Common Laws of England Reg. 7. p. 31 32. except the Malice of the Will and Intention appear But in Civil Trespasses and Injuries that are of an inferiour Nature the Law doth rather consider the Damage of the Party wronged than the Malice of him that was the Wrong-doer And therefore if an Infant within Years of Discretion or a Mad-man kill another he shall not be impeached thereof but if they put out a Man's Eye or do him like corporal Hurt they shall be punished in Trespass Concerning a Mad-man's doing a corporal Hurt the Civil Law runs thus Quaerimus si Furiosus damnum dederit an Legis Aquiliae Actio sit Et pegasus negavit Quae enim in eo culpa sit cum suae mentis non sit Et Culpam non admittit qui suae mentis non est Gothofreda 1 hoc verissimum Cessabit igitur Aquilia Actio quemadmodum si quadrupes damnum dederit Aquilia cessat aut si tegula ceciderit D. 9. 2. 5. 2. XV. QUERY Whether a Furor Man can be a
whereby it may plainly appear that he hath not reason to discern what is to his profit or damage though it be notorious nor is apt to be informed or instructed by any other His Treatise of Testaments and last Wills Part 2. Sect. 4. f. 29. a. b. Edit 1590. Vide more of an Iidot's description in Stanford super Praerog Regis c. 9. f. 34. b Edit 1567. And M. 31. l. 3. Tit. Saver de desault p. 37. SECT II. Of the Remarks concerning Idiots I. REMARK IF a person hath so much knowledge that he can read or learn to read by Instruction and Information of others or can measure an Ell of Cloth or name the days of the Week or beget a Child Son or Daughter or such like whereby it may appear that he hath some light of Reason then such a one is no Idiot naturally Exposition of Terms of the Law f. 201. b. Tit. Idiot Stanford super Praerog Regis c. 9. Fitzherbert Natura Brevium p. 519. B. II. REMARK An Idiot or Fool Natural is uncapable of making a Testament nor can he dispose of his Lands or Goods Stat. of 34 35 H. 8. cap. 5. Swinbourn in his Treatise of Wills 2d Part Sect. 4. f. 39. b. Godolphin's Orphans Legacy Part 1. cap. 8. numb 3. p. 25. Cowel's Institutes Lib. 2. Tit. 12. Sect. 2. p. 115. Edit 1605. III. REMARK If a Man be of a mean understanding neither of the wisest sort nor of the foolish'st but indifferent as it were betwixt a Wise man and a Fool yea though he rather incline to the foolish sort so that for his dull capacity he might worthily be termed Grossum Caput a dull Pate Dunce such a one is not prohibited to make a Testament Swinbourn 2 part sect 4. Or as Godolphin expresseth himself He that only is of mean Capacity or understanding or one who is as it were betwixt a man of ordinary Capacity and a Fool such a one is not prohibited from making a Testament Orphan's Legacy 1 part cap. 8. numb 3. But it is with this Proviso says he that he hath understanding enough to conceive what is the nature of a Testament or last VVill being well informed thereof otherwise he being destitute of such understanding is not fit to make a VVill. Simon de praet de Interp. ult Vol. Lib. 2. Dub. 1. f. 4. Co. Lit. 6. The Marquess of Winchester's Case IV. REMARK If a person be so very foolish so very simple and sottish that he may be made believe things incredible or impossible as that an Ass can fly or that in old-times Trees did walk Beasts and Birds could speak as it is in Aesop's Fables for he that is so foolish cannot make a Testament Testamentum facere non possunt Impuberes quia nullum eorum animi Iudicium est Instit. 2. 12. 1. Cod. 6. 22. 4. because he hath not so much wit as a Child of ten or eleven years old who is therefore intestable namely for want of Judgment Swinbourn 2 part p. 4. V. REMARK Although by the Laws of this Land He that can measure a Yard of Cloth or rightly name the days of the VVeek or beget a Child shall not be reputed an Idiot or a natural Fool yet it will not be indisputably granted that an act so natural as the begetting of a Child can so qualifie a natural Fool so as to render him in the charitablest construction of Law Testable for if he be such a natural Fool as that though of Lawful Age yet cannot declare of what Age he is nor number twenty nor knoweth his natural Parents by their several Names and Relations and the like easie Questions such an Idiot is undoubtedly intestable a Cum Lege quis intestabilis jubetur esse eo pertinet ne ejus testimonium recipiatur eo amplius ut quidam putant neve ipsi dicatur Testimonium D. 28. 1. 26. Godolphin in his Tract Intituled The Orphan's Legacy part 1. c. 8. VI. REMARK Notwithstanding all which if it may appear by sufficient conjectures and circumstances that such Idiots had the use of Reason and Understanding at such time as they did make their Testaments then are such Testaments good and valid in Law 3 Eliz. Dyer 203 204. Swinbourn 2 part sect 4. Godolphin in his Orphans Legacy part 1. cap. 1. And yet says the same Godolphin if he be an Idiot indeed albeit he may make a wise reasonable and sensible Testament as to the matter of it yet it will be void VII REMARK To make a Promise or Contract compleat and binding the use of Reason is required in the promiser or contracter which renders the Promises or Contracts of Idiots Mad-men and Infants void and of no force in the Laws of all Countries Grotius de jure belli pacis lib. 2. cap. 11. sect 5. Briton cap. 28. f. 61. b. 63. a. And what is said of Contracts and Promises is true also in the Case of Oaths namely That he that Swears should be of sound Mind and should use great deliberation before he takes an Oath of which sound Mind and deliberation Idiots Madmen and Infants are not capable Grotius of the Rights of War and Peace lib. 2. cap. 13. sect 2. VIII REMARK He that is a Fool natural or a Mad-man is incapacitated to be a Judge for want of Knowledge and discretion Mirror c. 2. sect 2. p. 115 116. Edition 1642. IX REMARK An Idiot or Fool natural is uncapable of being made an Arbitrator called in Latine Compromissarius Iudex For the Law dictates that such Persons be elected Arbitrators as have sufficient skill of the matter submitted to them and have neither Legal nor natural impediment That they be not Infants who by reason of their few years want discretion and knowledge that they be neither Madmen nor Idiots for such are void of reason and understanding West Symb. 2d part Sect. 23 26 27. Author of a Tract Entituled Arbitrium Redivivum cap. 4. p. 19. D. 4. 8 9. X. REMARK Every one cannot make an Attorny for an Infant within Age a Mute a deaf Man a Fool natural Chescun ne puit mye faire Attorne car Enfant de dens age ne muit ne surd ne fol naistre ne home arrage oâ—… autrement sans discretion ne puit mie faire Attornes a man distracted in his Wits or otherwise without discretion are uncapable of constituting Attornies Britton cap. 126. f. 285. b. Mirror cap. 3. sect 10. p. 194. XI REMARK All such persons are capable to be Essoigners or Excusators as are not prohibited by Law but there are some that are forbidden among which number are Infants all such as are in VVard Excommunicated persons Madmen and Fools natural Mirror of Iustices cap. 2. sect 30. p. 175. XII REMARK If a Suit be brought against another he may say that he ought not to answer the Demandant or Plaintiff for he is an Excommunicate person a Madman an Infant or a Fool from his Nativity
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.
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
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.