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.

PART the Third. Of the Lunatick having sometime his Reason, and sometimes not.

SECT. I. The Description of a Lunatick, and the Word, whence derived

AS for the Origination of the word Lunaticus, Luna∣tick, we are told, it comes from Luna, the Moon; and so the Party is said to be Moon-sick: In Italian he is called Lunatico; in Spanish, Alunado; in the Greek Language 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, a 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, i. e. Luna; in the Teutonick he is termed, Mohn-Suchtig, a Moh, i. Luna, & Suchtig, i. aegrotus, aeger, ut illi, qui certis Lunae temporibus insania vexantur.

Dr. Hammond, (that learned Divine) concerning the word Lunatick, saith thus:

The word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉,* 1.1 coming from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the Moon, is directly parallel to the English Lunatick, from Luna, the Moon; also the English word Lunacy, and Lunatick, is vulgarly taken to signifie a Mad-man▪ and nothing else, viz. That Spe∣cies

of Madness which comes on Ment at such a Set-time, toward the Full of the Moon, as ordinary it is observable, in those that have any Intervals.

This Lunatick, according to the Law of England, is one, that hath sometime his* 1.2 Understanding, and some∣time not: Aliquando gaud•…•… lucidis intervallis; and therefore he is called, Non compos mentis, so long as he hath not Understanding. Coke in his Comment on Lit∣tleton, sect. 405. f. 247. a.

The Judges in their Resolution in the Case of Beverley, give this Description of a Lunatick: Lunaticus, qui* 1.3 gaudet lucidis intervallis; and sometimes is of sound Memory, and sometimes is Non compos mentis.

Thus much for the Etymology, and Description of a Lunatick: Now for some Remarks relating to him.

SECT. II. The Remarks concerning Lunaticks.

I. REMARK.

▪ILLI, qui quarta Luna, seu interlunio nascuntur huic morbo sunt obnoxii, nam ex opinione Astrologorum, si luna fuerit male collocata,* 1.4 aut spasticos, aut Lunaticos, aut Caducos facit: Those that are born during the

Interlune, or Conjunction of the Sun and Moon, are lia∣ble to the Disease of Lunacy: For, according to the Opi∣nion of Star-Gazers, if the Moon be ill set, or placed, it causeth Men to be subject, either to Convulsions, to Lu∣nacy, or to the Falling-sickness: And concerning the last of these, Physicians have a Rule, viz. They who are* 1.5 troubled with the Falling∣sickness, upon their good Days are not accounted whole.

II. REMARK.

The Roman Lawyers do distinguish every where, be∣twixt him that is Furiosus, and him who is Demens:* 1.6 For Furiosus est, qui omni intellectu caret. And there∣fore* 1.7 Nihil utiliter agit, nisi tempore dilucidi intervalli.* 1.8 Nam aliis hominibus conti∣nuum furoris infortunium accidit; alios furoris morbus non sine laxamento aggreditur, sed in quibusdam tempori∣bus quaedam iis intermissio pervenit: But with them, Demens is he: Qui est mentis Errore ductus, ea Captus non usquequaque, not continually. D 2. Zouch's Ele∣menta Iurisprud. Pars 2. sect. 4. de Valetudine Ho∣minis.

III. REMARK.

The King of England, by his Prerogative, is Summus Regni Custos, and hath the* 1.9 Custody of the Persons and Estates of such, as for want of Reason and Understand∣ing,

cannot govern themselves, or manage their Estates; so that the Persons and Estates of Lunaticks, are as well in the Custody of the King, as of Idiots; but with this difference: That of Idiots to his own use, and that of Lunaticks to the use of the next Heir. Statute of Praero∣gativa Regis, c. 10. 4 Co. f. 128. Beverley's Case of Non compos mentis. Stamford Super Praerog. Regis, c. 10. Cowell's Institutes, Lib. 1. Tit. 23. n. 2. p. 43, 44. E∣dit. 1605.

IV. REMARK.

Such as by Office are untruly found Lunaticks, may have their Traverse to the same, as appears by the Statute of 2 E. 6. c. 8.

V. REMARK.

Those that are Parties to a Fine, ought to be of good Memory, as appears by the Statute de Finibus, 18 E. 1.* 1.10 Stat. 4. And therefore Lu∣naticks, and such as are not of Sane Memorie, may not be received to levy a Fine▪ but if they be, the Fine will be▪ good and unavoidable. Fieri non debet sed factum valet. 4 Co. 124. Beverley's Case, Sheppard's Practical Counsellor, c. 2.

VI. REMARK.

If the Parties to whom a Right, or Title, comes, after a Fine levied be not of Sane Memorie, (a Lunatick being such) he, or his Heirs, have time to pursue his, or their Right or Title, within five Years after such Imperfection removed: So also has he in Case, he had a Right of Ti∣tle at the time of the Fine levied, 1 R. 3. c. 7. & 4 H. 7. c. 24.

VII. REMARK.

If Tenant in Tail levy a Fine, the Issue in Tail, tho'a Lunatick at the time of the Fine levied, is barred for ever by the Fine, so levied by the Tenant in Tail, forasmuch as he is a Privy, and out of all the Savings of 4 H. 7. c. 24. 3 Co. f. 91. The Case of Fines.

VIII. REMARK.

It is enacted by the Statute of 34 & 35 H. 8. That the Will, or Testament made of any Mannors, Lands,* 1.11 Tenements, or other He∣reditaments, by any Person De non sane Memorie, shall not be taken to be good, or* 1.12 effectual in the Law: But a Lunatick in his Fits, is a Person of Insanity of Mind, and therefore his Will or Testament, is not valid in Law.

IX. REMARK.

If a Person that becomes of Non sane memorie, by Acci∣dent, be disseised, and suffer a Discent, altho' he return to his former right Understanding again, yet he shall never avoid the Discent; and so it is a Fortiori of one, that hath Lucida Intervalla, Co. Litt. 247. a.

X. REMARK.

The Act of 23 El. c. 3. does not bar a Lunatick, o•…•… other Non compos mentis, of his Writ of Error, for re∣versing a Fine, so that he, or his Heirs, pursue such Writ

within seven Years, after such Imperfection removed; and if it happen, that he dies, hanging the Suit, his Heir may undertake it, within one Year after the seven Years.

XI. REMARK.

If a Man during his Lunacy make a Feoffment in Fee, tho' he shall in Pleading ne∣ver avoid it, by saying that* 1.13 he was a Lunatick, at the time of his Feoffment, yet twelve Men, upon their Oaths may find the Truth of the Matter; and so the Feoffment may be avoided by the King, for the Benefit of the Lu∣natick.

XII. REMARK.

All Acts which a Man doth during his Lunacy, are equi∣valent to Acts done by an Idiot, or he who is utterly* 1.14 Non compos mentis; but Acts done by himself, Inter lucida intervalla, when he is of sound Memory, shall bind him: And this is agree∣able to what Bracton hath pronounced in the Case of* 1.15 such as enjoy their lucid In∣tervals; his Words are: Furiosi non multum distant a Brutis, quae ratione carent, nec valere debet quod cum ta∣libus agitur durante furore, possunt enim quidam dilucidis gaudere intervallis, & quidam habent furorem perpetuum. Quod autem actum fuerit cum talibus tempore quo diluci∣dis gaudent intervallis, ratum erit ac si cum aliis agere∣tur, sive furorem simulaverint, sive non. With Bracton concurs Fleta, as you may see in Lib. 6. cap. 40. nu. 1.

XIII. REMARK.

If a Lunatick levy a Fine, and declares the Uses of it thereupon, by his Deed, he shall be bound, as being a part of the Operation of the Fine. Hobart's Reports 224. Needler v. Bishop of Winchester, 10 Co. 42. Mary Por∣tington's Case, and 2 Co. f. 58. Beckwith's Case.

XIV. REMARK.

A Copyholder that is a Lunatick, cannot forfeit his Co∣pyhold Estate. Sheppard, c. 22. p. 172. 4 Edit▪

XV. REMARK.

A Lunatick, who is Lord of a Copyhold Mannor, may grant Copyhold Estates for any time, according to the Custom of the Mannor, as any other Person may do, and the Estates made by him are unavoidable. Sheppard p. 109. 4 Co. Clerk & Pennifather's Case.

XVI. REMARK.

If a Lunatick be Steward of a Mannor, all Acts that he doth, according to his Office, are good in Law. Shep∣pard's Court-Keeper's Guide, p. 115. cap. 19.

XVII. REMARK.

A Surrender, or Grant of Copyhold Land, may be made to a Lunatick. Sheppard's Court-Keepers Guide, c. 19. p. 118; 119.

XVIII. REMARK.

A Lunatick, in his mad Fits, cannot Attorn to a Grant, for that he who hath no Understanding cannot make an Agreement to the Grant, Co. Lit. f. 315. a. 18 E. 3. 53. 6 Co. 69. a. Sir Moil Finch's Case. But a Man that is deaf and dumb, tho' he hath no Understanding, may Attorn by Signs. 26 E. 3. 63. Co. Lit. 315. a.

XIX. REMARK.

If a Lunatick Man, during the time of his Furor, or Insanity of Mind, make a Feoffment, &c. he cannot en∣ter, nor have a Writ, called Dum non fuit compos mentis; but after his Death, his Heir may well enter, or have thè said Writ at his choice. The same Law is, where an In∣fant within Age makes a Feoffment, and dies, his Heir may enter, or have a Writ of Dum fuit infra aetatem; But with this difference, that the Writ of Dum fuit non compos mentis, lieth for the Heir of him that was Non compos mentis, and not for himself; but a Dum fuit in∣fra aetatem, lieth as well for the Ancestor himself, after his full Age, as for his Heirs. Lit. sect. 406. Co. Lit. f. 247. b. Wingate in his Body of the Common Law of Eng∣land, c. 25. n. 20, 21, 22, 23.

XX. REMARK.

A Mad-man, or a Lunatick, may be imprisoned by another, to prevent killing* 1.16 of him, or burning his House, and justifiable. The Lord Hobart says, That the necessity of avoiding greater* 1.17 Inconvenience, is a good Plea in Law; as where one kills a Thief, or a Burglar,

in defence of his Person, or House; so also is the binding and beating of a Person Mad or Lunatick.

To prevent Mad-men from doing Mischief to them∣selves, or others, hear what the old Roman Law says concerning them:

Furiosi, si non possint per necessarios contineri, eo Re∣medio per praesidem obviam eundum est; scilicet, ut* 1.18 Carcere contineantur, & ita divus pius rescripsit. D. 1. 18. 13. 1.

Cum autem ex literis tuis cognoverimus, tali eum loco, atque ordine esse, ut* 1.19 a suis, vel etiam in pro∣pria villa custodiatur: Re∣cte facturus nobis videris, si eos a quibus illo tempore observatuus esset, vocaveris, & Causam tantae negli∣gentiae excusseris; & in unumquemque eorum, prout tibi levari, vel onerari culpa, ejus videbitur constitueris. Nam Custodes furiosis non ad hoc solum adhibentur, ne∣quid perniciosius ipsi in se moliantur, sed ne aliis quoque exitio sint. Quod si committatur, non immerito culpae eo∣rum adscribendum est qui negligentiores in officio suo fuerint. D. 1. 18. 14. Which may be English∣ed thus:

Whereas we understand by your Letters, that he is kept at his Country-House, by Servants, and Friends, of his own; you shall do well to call before you, such as at that time attended him, and to examine through∣ly how, and by what negligence the Fact happen'd to be committed, as you shall find any of them more or less faulty, to censure them accordingly: For Guards, or Keepers, are appointed for Mad-men, not only to look that they do not Mischief to themselves; but also, that they be not destructive to others; which if it be

done, it may be well imputed to their Fault, who were more negligent than was fit in their Employment.

I cannot pass over here in Silence, the Madness of Cleo∣medes, the King of the Lacedemonians, and how he was handled to prevent his playing mischievous Pranks.

Si opus sit (saith the Physitian Iacobus Wickerus) fu∣riosi ligamentis constringen∣di* 1.20 sunt▪ quemadmodum Cleo∣medi Lacedaemoniorum Re∣gi contigit, qui cum ad In∣saniam redactus, sceptrum unicuique obvio in faciem im∣pingeret, ligneis soleis constrictus est a propinquis, & in Carcerem conjectus. Fit autem non solum, ut ne aliis, sed ut nec sibi ipsis vim inferant, quam inferre aliis ne∣queant: Perinde ac Cleomedes, qui arrepto Custodis & Ergastularii gladio, ab ima Corporis parte ad verticem se dissecuit.

XXI. REMARK.

In a Bill brought by the Attorney-General, in the Na∣ture of an Information, on the behalf of a Lunatick, it has been declared, That it is as needful to make him a Party, as an Infant, where a Suit is on his behalf: But in the Case of an Idiot it must be otherwise; but a Luna∣tick may recover his Understanding, and then he is to have his Estate in his own disposing. Term Mich. 21. Car. 2. Woolrich a Lunatick, v. in Cancellaria.

SECT. III. The Queries with their Solutions, relating to Lunaticks.

I. QUERY.

Whether the Testament made by a Lunatick, during his mad Fits, be valid in Law, when he is come to him∣self?

SOLUTION.

SUch as are Lunaticks, can make no Testament, during the time of their Furor, or Mad Fits; no, not so much as ad pios usus: Nay, the Testament made at such a time, shall not stand good, when the Madness is past. Swin∣burn in his Treatise of Testaments and Last Wills, Part 2. Sect. 3. Of Mad Folks, and Lunatick Persons, & Dr. Godolphin in his Tract, entituled, The Orphan's Legacy, Part 1. c. 8. nu. 2. Instit. 2. 12. 1. c. 6. 22. 9.

II. QUERY.

Whether a Testament can be made by a Lunatick Person, betwixt his Fits?

SOLUTION.

If a Lunatick Person hath clear, or calm Intermissions, then during the time of* 1.21 such their Quietness, and Freedom of Mind, he may make his Testament, ap∣pointing

an Executor, and disposing of his Goods at his pleasure: So that neither the Furor, or Madness going before, nor following the making of the Testament, doth hinder the same Testament begun, and finished in the mean time.

The Lawyer Caius saith thus: Hi qui furiosi, id est, mente insani fuerint, non possunt facere testamenta.* 1.22 Sed hii qui insani sunt: Si intervalla ipsius insaniae habent, per intervalla, quibus sani sunt, possunt facere testamenta.

The Emperor Iustinian speaks in this manner, both in his Institutes, and in his Code:

Furiosi, si per id tempus fecerint testamentum, quo fu∣ror eorum intermissus est, jure testati esse videntur. Instit. 2. 12. 1.

Sancimus tale Testamentum hominis qui in ipso actu Testamenti adversa valetudine tentus est, pro nihilo esse. Si vero voluerit, in dilucidis intervallis aliquod condere Testamentum, vel ultimam voluntatem, & hoc sana mente inceperit facere, & consummaverit, nullo tali morbo interveniente stare Testamentum, sive quamcunque ulti∣mam voluntatem censemus, &c. c. 6. 22. 9.

III. QUERY.

If a Testament be made by a Lunatick Person, and the time of the making unknown, whether this Testament be good, or no?

SOLUTION.

If a Lunatick Person, or one that is besides himself at some times, but not continually, make his Testament, and it is not known, whether the same were made whilst he was of sound Mind and Memory or no; then, in case

the Testament be so conceived, as thereby no Argument of Frenzy, or Folly, can be gathered, it is to be presum'd, that the same was made* 1.23 during the time of his Calm, and clear Intermissi∣ons; and so the Testament shall be adjudged for a good Testament. Yea, altho' it cannot be proved, that the Testator useth to have any clear and quiet Intermissions at all, yet nevertheless 'tis supposed, that if the Testament be wisely, and orderly framed, the same ought to be ac∣cepted for a lawful Testament. But if in the Testament there be a mixture of Wisdom and Folly, 'tis presumed, that the same was made,* 1.24 during the Testator's Fren∣zy; insomuch, that if there be one word sounding to Folly, it is presum'd, that the Testator was not of sound Mind and Memory when he made the same: And there∣fore* 1.25 in this Case is the Te∣stament void, unless it may be proved, that there was In∣termission of Furor the same time. Swinburn in his Trea∣tise of Testaments and Last Wills, Part 2. Sect. 3. f. 38. b. 39. a. Edit. 1590.

IV. QUERY.

Whether the Dying seised of a Bastard Eigne, without In∣terruption, shall bar the Right of a Mulier Puisne, that is a Mad-man, or a Lunatick?

SOLUTION.

According to some: If a Man be seized of Land, and hath Issue two Sons, Bastard* 1.26 Eigne, and Mulier Puisne, and the Father dieth seised, the Mulier being beyond Sea,

or within Age, or Imprisoned, or Non sanae Memoriae, and the Bastard Eigne entreth, and continueth in peacea∣ble possession of the Lands, and hath Issue, and dieth, and the Lands descend to his Issue, the Right of the Mulier in all the said Cases is bound for ever: And others hold the contrary.

V. QUERY.

Whether a Lunatick can be prejudiced by Laches of suing Livery?

SOLUTION.

Sir Ralph Burcher being seised of divers Mannors in the County of York, holden in* 1.27 Chief, died seised Anno 40 Eliz. and the same descended to William Burcher; pre∣sently after his Death, it* 1.28 was found by Office before Commissioners, in the County of Middlesex, that the said William Burcher was a Lunatick, and so had been long before the Death of his Father, and that he was seised of the said Mannors; and the Queen granted the Custody of him, and his Lands to Sir Francis Barrington. After which 42 Eliz. there was an Office found in the County of York, of the Seisin of Sir Ralph; his Death, and Heir, ut supra; and that he was of full Age: And it was resolved, That the King* 1.29 was not to have any mean Rates in this Case for de∣fault of Livery sued, or ten∣dred; because no Lachess could be imputed unto the Heir, being Lunatick before, and ever since the Death of his Ancestors, and the Lachess of his Friends shall not hurt him; otherwise it were, if at any time he had been Sanae Memoriae since the Death of his Ancestors. And there

was shewed unto the Judges the like Decree, made Mich. 10 Iac. in the Cause of one Vaughan, which the Attor∣ney of the Court of Wards said, was made as a Decree of Equity; but they resolved also, it was a good Decree in Law, upon the Reason aforesaid, not because the King had seised and committed by force of the Lunacy, for that would have changed with the King's better Estate; for it is better for the King to hold for default of Livery, than for Lunacy.

VI. QUERY.

Whether a Lunatick▪be punishable for hurting a Man?

SOLUTION.

If a Lunatick kill a Man, this is no Felony; because Felony must be done, Ani∣mo* 1.30 Felonico; yet in Tre∣spass, which tends only to give Damages, according to Hurt or Loss, it is not so: And therefore if a Lunatick hurt a Man, he shall be an∣swerable in Trespass, and therefore no Man shall be excu∣sed in Trespass (for this is the Nature of an Excuse, and not of a Justification, prout ei bene licuit) except it may be judged utterly without his fault.

VII. QUERY.

Whether a Devise by a Lunatick, be aided by the Statute of 43 Eliz. Of charitable Uses?

SOLUTION.

Collison, 15 H. 8. devi∣sed* 1.31 an House in Eltham, in Kent, to Lettice his Wife,

for Life; and after her Death, made one Iohn Bricket, and others, Feoffees (as he called them) in the said House, to keep it in Reparations, and to bestow the rest of the Profits upon the Reparation of certain High-ways there: Collison and his Wife are dead, and the House is descend∣ed to one Oliver Rolt, an Infant. This Case being in the Chancery between the Parishioners and Rolt, was re∣ferred by the Court to Hobart and Tanfield; and they resolved clearly, that it was within the Relief of the Sta∣tute 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 Luna∣tick, 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* 1.32 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 where∣upon 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 Com∣mitment.

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.* 1.33 and for Trespass done upon his Land, it was demanded of the Court, In whose Name I. S. should bring the A∣ction? 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 Cu∣stom?

SOLUTION.

Lord Chief Justice Hobart did not agree, That the Lord hath power over the* 1.34 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 •…•…ffirmance of the Common Law in the Case of the King, •…•…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 •…•…states at Common Law, without special Custom. See •…•…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 •…•…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. •…•…125. a. Beverley's Case of Non compos mentis. Bracton, lib. 5. tract. 5. de Exce∣ptionibus, 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 gran•…•… them over to the proper use of another Person?

SOLUTION.

In Trespass Quare clausum fregit, and cutting hi•…•… Trees, in Paddington, in the Country of Middlesex, b•…•… Iohn Francis, against Wil∣liam Holms. The Defen∣dant* 1.35 pleaded, that it was found by Office before th•…•… Escheator of the said Coun∣ty of Middlesex, that th•…•… said Iohn Francis was a Lunatick, and that he was seize•…•… in Fee of the Land in which, &c. for which the King seised his Person, and his Land, and by his Letters Patent•…•…

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 there∣upon 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 ta∣king 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 ap∣pears by this subsequent Resolution.

A. seised of a Mannor for Life, where there were many Copyhold Estates, granta∣ble* 1.36 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 Que∣stion 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 Ju∣stice, and Tanfield, Chief Baron, That the said Commit∣tee 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. 8. Pace, Dean of the Cathedral Church of St. Paul, was in* 1.37 the Custody of the Arch-Bishop of Canterbury, being •…•… Lunatick, the Question was, in the Court of Wards, Who shall have the Custody? And upon Precedents shewn, it clearly appeared, That the Arch-Bishop ought to have him in Custody, and not the King: Which Pre∣cedents were cited by one Master Eyres, in his Reading at Lincoln's-Inn.

XIV. QUERY.

If a Man, in Criminal Cases, be suspected to counterfeit Madness, or Lunacy, how shall it be discerned, whe∣ther he be mad, or no?

SOLUTION.

Lunacy, Madness, or Frantickness, counterfeited, shall be enquired after, by an In∣quest* 1.38 impannelled for that purpose, as appears in the Case of one Somervile: For at a Meeting of the Justices, it was demanded by the Queen's Council, If Somervile, having been suspected for a Lunatick in times past, should now prove to be of the same State, or Condition, upon his Arraignment, by Co∣vin, or otherwise in Verity, what shall be done in the Case? To which Demand, after divers Arguments, it was answered, That an Inquest should be Impannelled to enquire, Whether it was of Malice, or no, &c.? And it was likewise resolved by the Opinion of all, That if he should be found a Lunatick by Covin, or Dissimulation, he shall be tried upon the principal Matter, and not con∣demned to Pain Fort, & Dure▪ as in Cases of Felony: But if he will not answer directly, being of Sane Memo∣rie, he shall be condemned upon a Nihil dicit; and not∣withstanding he shall have the Judgment that belongs to High-Treason, and not his Penance Fort, & Dure: And if he be found a Lunatick, his Trial must be deferred till he be of sound Memory. But it was fully and absolutely agreed, That if Somervile plead the General Issue, Non Culp. that if afterward he upon Evidence shall come, and not speak directly, yet he shall not be taken for a Mad∣man, or Lunatick, for that he has once answer'd di∣rectly.

Add hereunto the Case of a Felon, reported by Judge Anderson, where the Felon upon his Arraignment ap∣peared* 1.39 to be mad; and it was held, That it should be enquired of, by an Inquest of Office; if he were made in∣deed, or in shew only; and if it be found, that he does dissemble, then the Judge may put him to answer, if the Felon will; and if he will not answer, the Judge may pass Judgment against* 1.40 him.

Thus much for the Law of England: Now we will see how the Civil Law runs, in the Case of Parricide, committed by one supposed Mad, or Lunatick.

Divus Marcus, & Commodus Scapulae Tertyllo rescrip∣serunt in haec verba: Si ti∣bi* 1.41 liquido compertum est, Aelium priscum, in eo fu∣rore esse, ut continua mentis alienatione omni intellectu ca∣reat, nec subest ulla suspitio matrem ab eo simulatione dementiae occisam, potes de modo poenae ejus dissimulare,* 1.42 cum satis furore ipso punia∣tur, & tamen diligentius custodiendus erit, ac, si puta∣bis; etiam vinculo coercendus, quoniam tam ad poenam, quam ad Tutelam ejus, & securitatem proximorum perti∣nebit. Si vero ut plerumque adsolet, intervallis quibus∣dam sensu saniore, non forte eo momento scelus admiserit, nec morbo ejus danda est venia, diligenter explorabis: Et siquid tale compereris, consules nos, ut aestimemus, an per immanitatem facinoris, si, cum posset videri sentire, com∣miserit, supplicio adficiendus sit. In English thus: Mar∣cus, and Commodus, the Emperors, being consulted by Scapula Tertyllus, concerning Aelius Priscus, who had killed his Mothet, advised as followeth: If it clearly appear unto you, that Aelius Priscus was so distracted, with a total continued Defect of Understanding, that

there could be no suspition, that in a dissembled Madness, his Mother was killed by him, you may desist from the Punishment of him, his Madness it self being a sufficient Punishment: Yet you are to take care, that he be kept in more closely; because such Restraint ought to be used for his Punishment and Preservation, and also for the Security of others. But if, as oftentimes it happens, his Madness takes him by Fits, and at the time of the Villany com∣mitted he was free, he ought not to be excused by colour of his Disease; and touching this, you are to make good Enquiry, that we being informed, may determine of the Foulness of the Fact.

XV. QUERY.

A Bargain by a Lunatick, before the Lunacy found, whe∣ther avoidable, by being found a Lunatick, with a Re∣trospect of several Years?

SOLUTION.

Sir Geoffry Palmer, the* 1.43 King's Attorney-General, on the behalf of Ierome Smith, a Lunatick, against Sir Robert Parkhurst, and others.

The Bill did suggest, that by Inquisition taken before the Mayor of London, by Virtue of a Writ to him direct∣ed, the said Ierome Smith was the 23d of Iune, 1664, found a Lunatick, and had Lucid Intervals, and had not sufficient Government of Himself, his Lands, and Goods; and that he was Lunatick the last of Iune, 1647; and during his Lunacy he had several Sums of Money due to him, which he had wasted, and alienated divers Goods;

but to whom, the Jurors were ignorant. And did charge, that one Archibald owed the Lunatick, during his Luna∣cy, 1300 l. by good Security; and that in 1656, the Defendant caused the Lunatick to assign Archibald's Debt to him, and had received the same, upon Colour of a Sa∣tisfaction given to the Lunatick for the same; whereas that pretended Satisfaction was not valuable, and was done in prejudice▪ of the Lunatick: And to have an Account of 1300 l. and to be relieved, was the Scope of the Bill.

The Defendant sets forth by Answer, That he sold the said Ierome Smith, in 1656, a Mannor, which he much desired to buy, at 1200 l. it being the Place of his Birth; Ierome Smith assigned Archibald's Debt for to satisfie himself the Purchase-Mony, and pay the Over-plus to Smith; which he did; and did convey the said Mannor to Smith, and insisted, that Smith was not a Lunatick at that time, and did usually buy, and sell, &c.

This being the Nature of the Case, it came first to be heard before Justice Tyrrel, who altho' it did appear, that the Defendant had conveyed the said Mannor to Smith, for the said 1200 l. and that Smith did at that time usu∣ally Barter, and was not found a Lunatick till eight Years after, with a Retrospect of seventeen Years, did order the Defendant to Account for the 1300 l. being Archibald's Debt, and to satisfie the same with Damages, without any Provision for the Defendant's having the Mannor again, or Account for the Mesne Profits. And tho' it was stood up∣on, at the Hearing, that in Case of a Lunatick, (where the King hath no Interest in his Estate, but as Pater Pa∣triae, commits him to another to manage it for him, the Lunatick, in case he recover his Senses, and Wits, shall have his Estate again; and if not, it will go to his Administra∣tors) the Lunatick himself (as in the Case of an Infant) ought to have been a Party: Yet that Opinion was over∣ruled by the Judges, and by the Lord-Keeper, on a Re∣hearing: But the Lord-Keeper did stay the passing that

Decree, and gave Liberty to the Defendant to traverse the Inquisition.

Out of this Decree may be collected these Notes:

• 1. That the Party is admittable to traverse the Inqui∣sition, if he pleases.
• 2. That generally a Lunatick ought to be made a Party.
• 3. That the Reason why it was over-ruled, in the Case aforesaid, was, because he might stultifie himself.

XVI. QUERY.

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.

SOLUTION.

Upon these Words of the Statute of Westm. 2. c. 48 Sc. In omnibus brevibus per quae tenementa petuntur Ra∣tione dimissionis, &c. Sir Edward Coke, (and that agree∣able to the Books cited in his Margent) commenteth thus: Here, as in many places [Demise,] is applied to an Estate, either in Fee-simple, Fee▪tail, or for Term of Life, and so commonly taken in many Writs. But this Act extend∣eth not to every kind of Demise, or Conveyance; for if the Demise, or Conveyance, be by Fine, or other Matter of Record, this Branch extends not to it; for, regularly, Conveyances, or other Acts of Record, acknowledged, or made by one that is Non compos mentis, or by Duresse of Imprisonment, are unavoidable by him, or his Heirs, by Law; and such Conveyances, or other Acts of Record, acknowledged, or made by an Infant, are also unavoida∣ble,

unless he doth avoid them by Writ of Error, or Au∣dita Querela, during his Minority; and therefore this Branch is to be understood of Alienations made in Pais, and not by Matter of Record, Co. 2. Inst. f. 483.

Having given some Account of our Lunatick Person, and that by way of Description, Remark, and Query, I am now to speak of the Drunken, and Cup-shot Man, that is Non compos mentis, by his own Folly.

Notes

• * 1.1

  Annotation on Ver. 15. of Mat∣thew, c. 17.
• * 1.2

  Intervalla haec furoris, confinia furoris & sanitatis dicuntur, c. 5. 70. 6. &c. 6. 22. 9.
• * 1.3

  4 Co. f. 124. b. Case of Non compos mentis.
• * 1.4

  Interlunium dicitur id spa∣tium temporis, in quo nec am∣plius detus Luna apparet, nec adhuc nova videtur.
• * 1.5

  Qui Comitialem morbum habent, ne quidem diebus qui∣bus motbo vacant, sani dicun∣tur.
• * 1.6

  C. 5. 4. 25. C. 1. 4. 28. C. 5. 37. 28.
• * 1.7

  D. 50. 17. 5.
• * 1.8

  C. 5. 70. 6.
• * 1.9

  Cicero, l. Tuseul. 3. says. Eum qui errore mentis affectus est, ve∣tari XII. Tabulis rerum suarum Esse Dominum.
• * 1.10

  Vide 1 R. 3. c. 7. & 4 H. 7. c. 24.
• * 1.11

  34, & 35 H. 8. c. 5.
• * 1.12

  Furiosus testamentum facere non potest, quoniam mentem non ha∣bet, ut testari de ea re possit. Ul∣pian. tit. 20. de Testamentis.
• * 1.13

  Co. Litt. 247. a.
• * 1.14

  4 Co. Beverley's Case.
• * 1.15

  Lib. 5. tract. 5. c. 20. nu. 1.
• * 1.16

  22 E. 4. 45.
• * 1.17

  Moor v. Hussey, f. 96.
• * 1.18

  Ulpianus.
• * 1.19

  A Rescript sent to Scapula Tertyllus, from the Emperors Marcus and Commodus, occasion∣ed by a Parricide, committed by one supposed mad.
• * 1.20

  In his Syntaxes Medicinae, l. 2. Pars 2. p. 308. De Furoris Cu∣ratione.
• * 1.21

  Swinburn, Part 2. § 3. Or∣phan's Legacy, Part 1. Cha∣pter 8.
• * 1.22

  Lib. 2. tit. 2. de Testamentis.
• * 1.23

  Vasq. de Success progress. lib. 1. § 9. n. 90.
• * 1.24

  Angel. in L. Furiosum, c. qui Testa. fac. poss.
• * 1.25

  Idem Angel. in eadem L. Furiosum.
• * 1.26

  8 Co. f. 101. Lechford's Case.
• * 1.27

  Hobart's Rep. f. 137. Burchers Case.
• * 1.28

  Lunatick sueth not Livery; no mean Rates run against him.
• * 1.29

  And Livery was due to him, and the Law presumes that he would have sued, it being for his Benefit if he had been Compos mentis.
• * 1.30

  Hobart's Reports, f. 134. Wea∣ver v. Ward.
• * 1.31

  Hobart's Rep. 136. Collison's Case.
• * 1.32

  Hobart's Rep. 215. Cockes v. Darson.
• * 1.33

  Popham's Rep. f. 141. Darcy's Case in the Common Pleas.
• * 1.34

  Hobart's Reports, f. 215, 216. Cockes v. Darson.
• * 1.35

  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.
• * 1.36

  Trin. 9 Iac. in the Court of Wards, Blewits Case, Leonard 47, 48.
• * 1.37

  Vide Dyer, Edit. 1688, where this Case is cited in the Margin.
• * 1.38

  Savil's Rep. p. 50. nu. 105.
• * 1.39

  Anderson 1. 107.
• * 1.40

  Pain Fort, & Dure.
• * 1.41

  Macer lib. 2. de Judiciis pub∣licis. D. 1. 18. 14.
• * 1.42

  Simulatus furor poena dignus D. 1. 18. 13. 1. in sine D. 27. 10. 6.
• * 1.43

  De Term. Sanct. Mich. Anno Regis 20 Car. 2. in Cancellaria, Smith a Lunatick against Sir Ro∣bert Parkhurst.