f
*£&


4*.
*&**&; 
NATIONAL LIBRARY  OF MEDICINE




          Bethesda, Maryland 
 
 
1^.

U
-Jf
/ 
V   Vv    O





 «V.V,
» '   * 
A TREATISE
  0   ON

              * <  /J
THE LAW
or
IDIOCY AND LUNACY.
       Br A. p.IGHMORE,

AUTHOR OF THE LAW OF MORTMAIN, EXCISE, &C.
Equum est ut qui se regere non potest, regatur aliunde.

                                Grotius.
FIRST AMERICAN FROM THE LAST LONDON EDITION.


         TO WHICH IS SUBJOINED



        AN  APPENDIX,



      COMPRISING  A SELECTION OF




 AMERICAN  CASES;



             IN WHICH



'jOME IMPORTANT SUBJECTS OF THIS TREATISE HAVE

          BEEN INVESTIGATED


               AM)


       NEAV PRINCIPLES SETTLED.
     EXETER, N. H.


PUBLISHED BY GEORGE LAMSOV.
.T. J. MILLIAMS PHINTEH.



     1822. 
boo. 
PREFACE.
In compiling the ensuing pages I have en-
deavoured to form such a brief arrangement
as should concisely bring the  whole matter
readily to view,  and facilitate an immediate
reference to the  subject connected under its
principal heads ;  but I have not always suc-
ceeded to my wish in the compression; and
am not without some  fears that a more able
architect will charge me with having mingled
orders which he would have kept distinct, and
omitted  ornaments which  would  not  have
weakened the fabric: but  if I escape with-
out stronger censure I shall not be ashamed ;
if the work can be amended, the student and
myself may profit by the lash of criticism.
  I  have ventured to avoid  what is an es-
sential in professional writings, the names of
recent cases ; if I have suppressed this source
of reference with inconvenience to the reader,
he must accept the apology of delicacy which
the subject offers, and will  be apprised, from 
 IV                 PREFACE.
 this and from the brevity with which some of
 the cases are mentioned, that my chief design
 is, to  lead him to search the reports them-
 selves rather than to rest upon the  summary
 here  given  of the determinations;  and to
 facilitate his search I have endeavoured to
 give all the references with accuracy. ,
    It will appear by this work that the infirm-
 ities on which  it treats arise either from a de-
 fect at  birth, or  from constitutional or acci-
 dental evils, sickness, violent impression,  or
 some passion  too highly inflamed.   In all of
 these causes,  except those of  birth or  ac-
 cident,  it is not perhaps incorrect to assume,
 that in most maniacal cases, a predisposed and
 radical  nervous irritability forms   an  easy
 prey  to the fatal malady ; the  patient  " ex-
 " periences great torment from a preterna-
 " tural  acuteness; an increased no less than
v •" an  impaired sensibility induces a state of
 " disease and  suffering."(a)
    The life of an ideot which has no intervals,
 and the tardy  recovery of a lunatic from his
 paroxysms, offer examples  alike distressful
 to  shew how  little ground there is to  boast
 of human  power—or  vanity—or  greatness,
 and how effectually our  aspiring pride  may
 be crushed by a visitation permanent in  one
             (a) Paley's Nat. Theol. 522. 
                  PREFACE.                 V
case,  and seldom thoroughly recovered in
the other!
   A  state of  ideotism  is  less  deplorable,
though  not  less  shocking than  that of mad-
ness : ideots  are afflicted with no turbulent
passions; they are  innocent and harmless,
and  often excite  pity,  but  never  occasion
fear ;—the   absolute  naturals   owe  their
wretchedness to a wrong formation of the
brain, or to accidents in their  birth, or the
dregs of a fever, or other  violent distemp-
ers.^)  But  the  case  of a  lunatic,  whose
morbid affection arising from either of the
melancholy  causes   before-mentioned,  not
only awakens every concern, but excites ev-
ery sentiment  of horror! we have seen the
most  critical  eye, which once penetrated the
inmost chambers of science, driven from  its
pre-eminence, and rolling its wandering glare
upon the  empty  shadows of  the  passing
clouds ;—we have seen men, whose mighty
names  have justly  emulated the glories  of
renown, subdued to the coercion  of those who
once dared not to trace their  distant footsteps ;
—we have seen the  prey of keen disappoint-
ment, and the  more awful sway of religious
enthusiasm, thus  wreck the  helm of human
happiness,  and frustrate the fairest voyage
of life!
           (£) Orrery's Swift, 196. 
VI                PREFACE.
  Debarredfrom all the illuminations of the so-
cial compact, they are at once excluded from
the reception and communication of its bles-
sings ;  furnished with every organ they are
nevertheless afloat in the  sea of existence,
without a  port of destination,  or  a compass
for their course; and the mind, which  to all
other human beings  affords a resource  when
the world fails of its  allurements, is to  them
the source and seat of their calamity!
   Food, which  is commonly an unremitted
cause of enjoyment, is frequently to them the
object  of  aversion;  as  often  cast away, as
imperiously demanded;  or loathed  in  the
very moment in which it is grasped with tu-
multuous  violence!
   The affections, which once were the solace
and spring of  their  happiness, become  the
objects of their ungovernable rage ; the very
furies of their contempt and scorn!
   The rational man  provides for  his neces-
sities and  has  pleasure  in  this pursuit—he
restrains the transient enjoyment of super-
fluities, that his laudable acquisitions may be-
come the  fruits of more permanent comforts ;
but the ideot and the maniac  have  necessi-
ties for which they know not how to provide,
they have vague pursuits unaccompanied by 
PREFACE.
Til
means  and undirected to an end;  they can
reap  no fruit, for they have neither planted
nor pruned the branches!
  If they were content to vegetate, their par-
oxysms of agony  might be soothed ; but
mere instinctive existence raises them not to
the level with the brute,  who knows how to
prevent  becoming  loathsome  to himself.
Philosophers have said, that there  is more
difference  between man  and man than be-
tween man and some  other  animals—the
maniac  is  like  neither; moon-struck and
viewless, he is a nondescript of human horror!
Fixed in the chain that surrounds him, he is
incapable of improvement, the same yester-
day, to day, and till death! He acquires noth-
ing, and has nothing  to lose—born  to the
highest  inheritance, he sinks to the lowest a-
byss !
   It is a self-evident truth that sanity or insan-
ity are two qualities of the mind equally invisi-
ble with the mind itself; and  as we do not
know the  minds of other men,  except by
their  words, or  their exterior actions, neith-
er can we  discover in any other manner the
dispositions of the same mind.
  But amongst the  actions,  which  are  as it
were  the natural signs of the affections of 
VIII
PREFACE.
the soul, there are two kinds, the one so per-
sonal, so attached, so inherent, so closely u-
nited to the person, that  it is  impossible  to
suppose  them to be his without recognizing
his sanity and capacity.^)
   The difficulty of decisions in  cases of this
nature must  be  obvious to every one; the
court has  to  pronounce,  not upon one  of
those  questions of state  wich relate to the
birth or condition of parties, exterior qualities
written in public registers, preserved in au-
thentic  muniments, and of which the princi-
pal proof is derived from the authority of the
law itself, but upon one of those doubtful
and difficult questions, of which the only sub-
ject is an invisible quality, that frequently
conceals itself from the most enlightened wit-
nesses, an  interior disposition, of which acts
and writings are  only an obscure and imper-
fect image ; in a word, when it is to decide upon
the state of the mind much more than upon
that of the body.(d)   Hence, in the perusal
of the following work the reader will cer-
tainly be enabled to add a considerable wreath
of praise to the  merit of  the  English law;
which he will  find uniformly exerted with un-
abating diligence and tenderness in adminis-
tering to the protection of the most  afflicted
  (b) 2 Evans Pothier, 539.        (d) Ibid.553. 
PREFACE.
IX
part of the community; and in carefully se-
curing them against injury from  their own
hands, and  injury  from the self-interest  of
others •  he  will view the guardianship  of
this  jurisdiction, vested in the first estate of
the realm, and then delegated  to  the Judge
whose office it is to preside over the  highest
Court of Equity, a delegation consonant  to
the tender regard of the Crown for the wel-
fare of the people and to the delicate situation
of the afflicted objects of its care: where their
personal and pecuniary rights can be discus-
sed  and  protected with peculiar attention, and
the interests of their families at the same time
preserved ;   where  the severity of the princi-
ples of Courts of Law is mitigated and relax-
ed, and  a more liberal and  expanded judg-
ment is  pronounced upon a cool investigation
of all the circumstances of the case,
   It is a source of  great satisfaction to  these
and to all other suitors of this Court, that its
jurisdiction is  generally  committed  to  men
who  have  already passed  through a long
course of general practice ; or whose em-
inence has raised  them to  the highest seat
in one of the Courts of Common Law; where
their  learning and integrity have  signalized
their official duties ;  and  have finally trans-
               1* 
X                FREFACE.
planted them  with  an enlarged  experience
to this first tribunal of the Crown ; men who
have thus gradated through all the honours
of their profession are become ennobled by
their  talents,  and hand to their  posterity a
well earned  fame surpassing the blazonry of
their ancestors.
   When I reflect that it is by  the  critical
eye of such men, these pages  may chance
to be inspected, 1 tremble for my own fame:
but as I know their candour, I  venture to
trust myself in their hands—hands in which
the great interests of the  nation are intrust-
ed may well be supposed to give protection
to an individual.
                                 A.  H.
     Easter  Term, 47 Geo. Ill 
PREFACE
                  TO THE
            AMERICAN EDITION.

IN this edition of Mr. Highmore's Treatise
it will be observed that the Appendix attach-
ed to  the  English  Edition  (which consists
principally  of Practical forms  used in  the
English Courts) is omitted.
  The short Appendix of American cases
which is substituted, it is hoped will  not  be
found useless to the Profession.
  Exeter, JV. H. July, 1822. 
CONTENTS.
                                                   PAGE
Chap.  1. Definitions      ......       1
       2.  Of the Custody    ....         H
       3.  Of the  Commission   .     •  v  •     •      ^°
       4.  Habeas Corpus    .     .     •     •    •    27
       5.  0/  Executing and  Returning to the
            Commission   .....     29
       6.  Of controverting  the Commission      .       34
       7.  Of the Committees     ....      42
          Sec*. 1.  Who may take those offices    .        42
              2. Of the Principle thereof    .     .      49
              3. 7%e Security requisite   .     .        52
              4. Their Duties and Powers   .     .     55
Chap.  8. Recovery of the Lunatic  ...        73
       9.  His Death.....75
      10.  Of  Costs.....          77
      11.  Of Disabilities incurred    -                 79
         Sect.  1. Attornment                          79
              2. Presentation      ...        80
              3. Marriage     .     .     .     .      80
              4. Copyholds       ...         83
              5. Testimony    .     .     .     .      83
              6. Actions and Suits     .      .         85
              7. JTi/fo        ....       91
              8. Trusteeship and Offices of Trust       98
              9. Contracts by Deed, $rc per pais       101
             10. Fines and Recoveries     .    .      126
Ghap.  12. Of Parochial Settlement    .      .     .     135
       13. Of Vagrants     ....       136
       14. Of Criminal Acts    .     .     .     .     138
          Sec*. 1. In general     .  .     .     .       133
               2. Suicide       .    .     .     •     143
               3. Murder   ....        144
               4. Treason      .    .    .     .    146
Chap.  15. Of Counterfeiting Insanity     .     .       157 
A  TREATISE
                   ON

THE  LAW  OF LUNACY.
                  CHAPTER  I.

                     DEFINITIONS.

 1DEOT is defined by Dr. Johnson to be a fool—a natur-
 al—a changeling—one without the power of reason.   Ide-
 otism is folly ; natural imbecility of mind.
   A man not of sound memory is explained by Littleton to
 be non compos mentis—amens—demens—-furiosus lunaticus
fatuus stultus, or the like.  Non compos mentis is the most
 sure and legal.
   Lunatic is one whose  imagination  is  influenced by the
 moon :  a madman.   Lunaticus, qui gaudetlucidis intervallis,
 in Beverley's case.(a)
   Non compos mentis  is of four sorts:
   1.  Ideota, from his  birth by a perpetual infirmity.(b)
   2.  He that by sickness, grief, or other accident, wholly
 loses his memory and understanding.(c)
   3.  One who hath  lucid  intervals, and is therefore non
 compos so long as he has not understanding.
   4. One who, by his own intemperance, for a time de-
 prives himself of his memory  and understanding, as he

  (a) 4 Co. 124.                  sen. 408.
  (6) Co. Lit 247. F. N. B. 530.  2 Ves.   (c) 4 Co. 124.
                  2 
2                    DEFINITIONS
that is drunken ;(d) but this sort of non compos affords no
privilege to himself, or his heirs;  and a descent  does not
take away the entry of the ideot.
  As lunatics arc affected or  governed by the moon, so
epileptics were anciently called lunatics; because the par-
oxysms of that disease seem to be regulated by the chang-
es of the moon.(e)
  Mad  persons  are  called lunatics from  an ancient but
now almost exploded opinion, that they are much influenc-
ed by that planet:(/) a much sounder philosophy hath
taught us that if there be any thing in it,  it must be ac-
counted for not in the manner which the ancients imagin-
ed, nor otherwise than what the moon has in common with
other heavenly bodies, occasioning various alterations in
the  gravity of our  atmosphere, and  thereby affecting hu-
man bodies.   However, there is a considerable reason to
doubt the fact;  and it is certain that the moon  has no per-
ceivable influence  on our most accurate barometers.(g)
  One, made ideot by sickness, which lord Hale called de-
mentia accidentalis vcl advcntitia; and which he again distin-
guished into a total and a partial  insanity, from its being
more or less  violent,  is such a madness  as excuseth in
criminal cases ;  and though the party  in every thing else
be entitled to the same protection  with an ideot, and though
his disorder seem permanent and fixed, yet as he had once
reason and understanding, and as the law  sees no impossi-
bility but that he may be restored to them, it  makes the
king only a  trustee for his  benefit without giving him any
profit or interest in his estate(7»).—17 Edw. II.  ch. 10.—1
Bl. Com. 304.
  Sir W. Blackstone defines a lunatic or non compos mentis
to be one who has had  understanding, but by disease,
grief, or other accident, has  lost the use of his reason ;(*)
  Id) 1 Inst. 247.                 (A) Hale P. C.  30. 3 Gwillim's
  (e) Galen de diebus critic's, 1. 3.    Bacon Abr. 526.
  if) 3 Gwillim's Bac. Abr. 526.       (i)  1 Bl. Com. 304.
  1g) Rcefc* Cvclop. 
DEFINITIONS
3
but that a lunatic is indeed properly one who hath lucid
intervals, sometimes enjoying his senses, and sometimes
not, and that frequently depending upon the change of the
moon : but under the general name  of non  compos mentis,
which sir  Edward Coke says is the most legal name, are
comprised not only lunatics, but persons under frenzies, or
who lose their intellects by disease ; those who grow deaf,
dumb, and blind, not being born  so; or such, in short, as
are judged by the court of chancery incapable of conduct-
ing their own affairs.(i)
  Fitzherbcrt(k) defines  an ideot to be one  who cannot
count twenty pence, or tell who his father or mother were,
or how old he is—or that hath  no understanding or  rea-
son—what shall be for his profit, or what for his loss : but
if he have such understanding that he knows and  under-
stands his letters, and to read by teaching or information
of another man, then it seems he is not a fool nor a natural
ideot, which seems more properly to belong to one who
has had no understanding from his birth, and is therefore,
by law, presumed  never likely to attain any.(/)
   The same rules  of judging of insanity, prevails at law
and in equity, though sir W. Blackstom seems  to point at a
difference :(w) for if a  return to an inquisition, state the
party to be incapable of managing himself and his  affairs,
from the weakness of his mind, a commission of lunacy will
not issue, the court of chancery having never gone further
from the ancient returns, which were lunatic vd non, than
in allowing returns of  non compos mentis, or insane  memo-
ries ; or since the proceedings have been in equity, of un-
sound mind, which amounts to the same thing.  Non com-
pos mentis  is  now indeed the proper technical term, being
legitimated by several  acts of parliament.(n)

  ,••. t ,.. oar                  Com. 304.
  l\p 233                     (n) 1 Atk. 168. ?  Yes. 407 3 R.
  Si BI.Com. 302.      ^    A*. MS.
  U)3P- W.  "0 ■? Atk 1,  1 
4                     DEFINITIONS.
  A person born deaf and dumb, is prima facie within the
definition of ideot, but daily experience proves him other-
wise.^)
  Lunacy is a partial derangement of the intellectual fac-
ulties, the senses  returning at uncertain intervals.(p)
  Madness is a total alienation of mind.(</)
  These defects  must be unequivocal and plain, not an
idle frantic humour, or unrecoverable mode of action, but
an  absolute disposition of the free and natural agency of
the human mind.(r)
  A memory which  the law holds to be  sound, is,  when
a testator has understanding to dispose of,  or a mind to
manage his estate with judgment and  discretion; which
is to be collected from his words, actions, and behaviour
at the  time, and not from his giving a  plain answer to a
common question.^)
  Thus a will obtained in extremis, or upon any importu-
nity, or guiding the hand, may be set aside.  8 Vin. Abr.
167.pl. 7___1  Fon. Eq. 71.
  Although courts of equity, in judging upon the point of
insanity, are governed by the rules of law, yet if a man by
age, or disease,  is reduced to a state of mental debility,
which, though short of lunacy, renders him unequal to the
management of his affairs, the courts will,  in respect of his
infirmities, if the demand in question be but small, appoint
a guardian to answer for him, or  to do such acts as his in-
terest, or the rights of others, may require.(<)
  Lord chancellor Thurlow said, he was  not against the
practice of finding a man lunatic  who was by the infirmi-
ties of age, rendered unequal to the management of his af-
fairs ;(u) but  the more  usual course  is to appoint him a
  (o) 1 Hale 34.                   (*) G Co. 23. 1 Ch. Rep.  13. 1
  IP) I Hale 31.  4 Bl. Co. 24.       Fon. Eq. 70.
  (g) 1 Hak- 30. 4 Co. 124.           («) 3 P. W. 111.
  (r) 8 St. Tr. 322. 1 Hale C. 4.  O.    (w) Pre. Cha. 229. Gilb. 4. 4 Bio.
B. 1784. 257.                   100.  1 Fon. Eq. 64. 
DEFINITIONS.
5
guardian, or some person, to act for him in the receiving
and managing his property.
  Weakness is not such a defect as will ground a commis-
sion  of lunacy or ideocy ;(x) for a man may be weak as to
figures, and not so as to his estates.  Lunacy is a distemp-
er occasioned either by disorder or accident;  and to one
of these two cases commissions were  formerly confined ;
but at length this part of the prerogative, this paternal care
was  enlarged and extended to one who is non  compos men-
tis :  but here it stopt;  and this, at least, a court  of  equity
insists must be found to entitle any one to a commission ;
and  therefore, though  a jury find that one  is incapable of
managing his affairs, yet such a finding is insufficent: they
must find him to be of unsound mind.   A man may be of
weak understanding, and of no resolution of mind ; but
this  is not sufficient to ground a commission :  if he never
was of better understanding, perhaps a commission of ide-
ocy might lie; but query.—If it be objectedthat he may be
imposed on in disposing of his estate by will, it is answer-
ed that fraud and imposition upon weakness is sufficient to
set  aside a  will of real,  much  more  of personal  estate.
There was  a case in lord HardwicWs time, where, though
one could not be proved a lunatic, yet from the imposition
on his weakness, the court  relieved against a deed obtain-
ed from  him ; immediately after the decree,  the grantee
got  a release of the decree from him ;  against  this also the
court relieved ;  and it  was said, that lord Hardwick order-
ed that he should not execute any future  deed, but with
consent of the court.
   A person found a lunatic by a competent jurisdiction a-
 broad, may be so considered in England.(y)
   But as it is of considerable importance to ascertain, with
some precision,  the nature of that suspension of general  lu-
 nacy, called a lucid interval, I know of no writer who ha?
(,r) 2 Ves. sen. 408,
(y)2 Ves. jun. 58!?. 
6
DEFINITIONS.
 defined it  with  more  accuracy  or elegance  than Mr.
 D'Aguesseau, the advocate general of France, in his plead-
 ing in the case of the princes De Conti before the parlia-
 ment of Paris.—See Evans's Pothier, v. 2. p. 668.
   " It  must not be a superficial tranquillity, a shadow of
 repose, but on  the contrary, a profound tranquillity, a re-
 al repose ;  it must be, not a mere ray of reason, which on-
 ly makes its absence more apparent when it is gone, not a
 flash of lightning, which pierces through the darkness only
 to render it more  gloomy  and dismal, not a glimmering
 which unites the  night to the day;  but a perfect light, a
 lively  and continued lustre,  a full and entire day, interpos-
 ed between the two separate nights, of the fury which pre-
 cedes  and follows it;  and, to use another image, it is not a
 deceitful and faithless stillness which follows or forebodes
 a storm, but a  sure and steadfast tranquillity for a time,  a
 real calm, a perfect serenity ; in fine,  without looking for
 so many metaphors to represent our idea, it must be not a
 mere diminution,  a remission of the the complaint,  but a
 kind of temporary cure, an intermission so clearly mark-
 ed, as  in every  respect to resemble the restoration ol
 health.  So much for its nature.
  " And as  it  is  impossible to judge in a  moment of the
 quality of an interval, it is  requisite  that there should be
 a sufficient length of time for giving a perfect assurance of
 the temporary  re-establishment of reason, which it is not
 possible to define in general, and which depends upon the
 different kinds  of fury, but  it is  certain there must  be  a
 time, and a considerable time.   So much for its duration.
  " These reflections are not only written by the hand of
nature  in the mind of all men, the law also  adds its char-
acters,  in order to engrave them more profoundly  in the
heart of the judges."
  " An action may be sensible in appearance, without the
author  of it being  sensible in fact; but an interval cannot
be perfect, unless you can conclude from it, that the person 
DEFINITIONS.
i
 in whom it appears  is in a state of sanity ; the action is
 only a rapid and momentary effect,  the interval continues
 and supports itself;  the action only marks a single fact,
 the interval is a state composed of a succession of actions.
   " And to have a sensible proof of this,  let us examine
 the case of those, who are only affected upon one or two
 principal points: one person  is always seeing precipices,
 another supposes the people want to stop him;  one trans-
 forms himself into a beast, another by a folly still more out-
 rageous, believes himself to be God.   If you do not intro-
 duce these subjects, they appear reasonable as to every
 thing else ; put them upon these points,  they immediately
 discover  their weakness.   The madman who believed
 that all  the merchandize which came into the port of
 Pyreum, was consigned to him, could still judge very rea
 sonably of the state of the sea, of  storms,  of signs, from
 which he might hope the safe  arrival of vessels, or appre
 hend their loss.  The person  of whom Horace has given
 so ingenious a picture, who always thought he was attend-
 ing at a shew, and who, followed by a troop of imaginary
 comedians,  became  a  theatre to  himself, in  which  he
 was at the same time both the actor and the spectator, ob-
 served in other respects all the duties of social life :
                                            r
       Caetera qui vitae servaret munia recto
       More, bonus sane  vicinus, amabilis hospes, &c.

  " Yet who could  suppose that such persons were in a
 condition to make a testament ?
  " If it was true that a proof of some sensible actions was
 sufficient to induce a presumption of lucid intervals, it must
 be concluded, those  who allege insanity could never gain
 their cause,  and that those who maintained the contrary
 eould never lose it.   For a cause must be  very badly off,
in which they could not get some witnesses to speak of sen-
 ble actions.   Now, if from thence alone you were to draw 
8
DEFINITIONS.
 the inference of lucid intervals, and supposing them suf-
 ficiently proved, should conclude that the testament ought
 to be presumed to have been made in  one of those inter-
 vals, there could  never be  any doubt  of success.  The
 consequence would be absurd, the principle therefore can-
 not be true.
   " You see, sirs, what  a lucid interval is; its nature is a
 real calm, not an apparent one; its duration must  be  suf-
 ficiently long to admit a judgment of its reality.    Nothing
 can be more distinguishable than a reasonable action and
 an  interval.  The one is an act, the other is a state; the
 act of reason may subsist with the habit of madness, and if
 it were not so, a state of folly could never be proved.1'
  " The nature of mere insanity, which being commonly
 the effect of temperament, is rather a weakness  of organs,
 an  habitual evil,  than an accidental malady.  It is other-
 wise with respect to fury, which  may  have a temporary
 cause, which is sometimes cured and frequently suspend-
 ed ; and, to make use of the elegant terms of the author of
 the factum, distributed by  Madame de Nemours, in 1673;
 ' Infirmity of mind, particularly when  it  is the effect  of
 temperament, is not cured by succeeding years;  they only
 serve to fortify the complaint, which may even be consid-
 ered incurable,  being a privation which can never return
 to being and existence.'  This was applied to the insanity
 of the Abbe d'Orleans."
  " Two different states  divide  all men, if you except the
 really sage.(z)  The one are deprived entirely  of the use
 of reason, the others make a  bad use of it, but there is not
 sufficient reason for declaring them to be in a state of folly;
 the  one are destitute of the light of reason, the others have
 a feeble  ray, which  conducts them to a precipice;  the
 former are dead,  the  latter ill; these still preserve  an im-
  (z) The word sage,  being used in  mon state of sanity, has an effect  in
the French language to express both  this discussion, which cannot easily be
the elevation of wisdom, aqd a  com-  retained in translation. 
                     DEFINITIONS.                    9

age, and a shadow of wisdom, which is sufficient for filling
in an ordinary manner the common duties of society, they
are deprived of a real sanity of mind, but can lead a com-
mon usual kind of life; the others have even  lost that
natural sentiment which  binds  mankind together  by the
reciprocal performance of certain duties.   Let us apply
ourselves to this last character,  which is the most sensible
of all, and to which the application is the most easy.
  " A sane person, in the sense of the law, is one  who can
lead a common and ordinary  life ; an insane person is one
who cannot even attain  the mediocrity of these general
duties.   Mediocritatem officiorum tueri et vita cultum com-
munem et usitatum.
  " But amongst those whom their weakness places below
the last degree of men of common understanding,  the ju-
rists distinguish two kinds.
  w The one only suffers a simple privation of reason; the
weakness of their  organs, the agitation, the levity, the
almost continual inconstancy of their minds, place their
reason in a kind of suspension and perpetual interdiction,
and cause them to have the denomination of mente capti,
in the laws, and in the writings  of the jurists.
  " In the others, the alienation of mind is less a  natural
weakness than a real malady, frequently obscure in its
cause, but violent in its effects, and which, like  a wild
beast, seeks continually to  break the chains that  bind it,
and it  is this malady which properly bears the name of
fury.
   " The former, says Baldus, have an  obscure  and con-
cealed fury, the latter have a striking and manifest  in-
sanity.
  " The last are in a state of drunkenness, of transport, of
frenzy.  The  first approach rather to the state of insanity,
an extreme decrepitude, their reason, like that of an infant
or a dotard, is imperfect or  worn out, but they are both
                        3 
10
DEFINITIONS.
 equally incapable of making a testament, because in the
 one reason is almost extinct, and in the other it is tied and
 bound by the violence of their complaint.
   " If these two states agree in this point, they are never-
 theless distinguished by separate characters.
   " The state of fury is more violent, but it sometimes ad-
 mits the hopes of cure.
   " The state of mere insanity is more tranquil, but it  is
 almost always incurable.
   " The one is susceptible of paroxysms and intervals, it
 rises all at once, it diminishes in the same manner.
   " The other has  not intermissions so marked, because
 the cause which produces it, that is  to say, the weakness
 and debility of the organs, is nearly equal and uniform.
   " Finally, a declared fury is  so obvious and evident that
 it would be superfluous to distinguish the degrees of it, with
 reference to the incapacity of  the  testator, because it is
 certain that all furious persons,  as long as their fury con-
 tinues, are absolutely incapable of making a testamentary
 disposition.
   "  On  the contrary, mere weakness of mind is more
 susceptible  of degrees,  and of considerable differences ;
 the incapacity increases and diminishes, in proportion to
 these degrees, and these differences: but who can fix them
 in general, who can mark precisely the frontiers, the al-
 most imperceptible  limits, which  separate  insanity from
 sanity, who can number the degrees, by which reason de-
 clines and falls into annihilation ?
  "  This would be to prescribe the limits of that which is
 illimitable, to give rules to folly, to be bewildered with or-
 der,  to be  lost  with wisdom.   The doubtful  and un-
certain point, at which reason disappears, and where inca-
pacity  becomes evident and  manifest,  can only be fixed
 by the particular circumstance of each  individual case." 
[  11   ]
                     CHAP.  II.

                     THE CUSTODY.
LfN the first attack of lunacy or other occasional insanity,
while there may be hope of a speedy restitution of reason,
it is usual to confine the unhappy object in private custody,
under the direction of the nearest friends and relatives :(a)
and the legislature, to prevent all abuses incident to such pri-
vate custody, has thought proper to interpose its authority by
stat. 14G. III. c. 49. continued by 19 G. III. c. 15. and made
perpetual by 26 G. III. c. 91. for the regulation of private
madhouses.—See Postea.
   But when the disorder is grown permanent, and the cir-
cumstances of the party will bear such additional expence,
it is proper to apply to legal authority to warrant a lasting
confinement.
   The king's prerogative, in this case, is well founded, and
well recognized, upon the principles of equity and jus-
tice ;(b) and therefore the  legislature hath  invested him
with the custody of the lands of ideots, during their lives,
and of lunatics, during their lunacy, for their own use.
   At the making of the statute of magna charta, 9 Hen. III.
the king was not possessed of this prerogative  ; for if he
had, this statute would have provided against waste, &c.
committed by the committee—the guardianship was vest-
ed  in the lords, or others, according to the common law^—
ideots from nativity were then accounted only as infants
within age, therefore the custody of them was perpetual so
long as they lived, for their impotency  was perpetual :(c)
and the lord of whom their land was held, failing of a ten-
ant to do him service, therefore took the wardship  of him,
as he did the custody of a minor.
  ta) 1 Bl. Com. 304.            70. 239. 2 Wms. 544. 638. Ca. t.Talb.
  (b) 17 Ed. II. c. 9.  Finch 95, 6.  F. 143.
N. B. 531,2.  4 Co.  126.  Hob. 153.   (c) Fletal. 11.  Bract. 5. Cowell's
3 Mod. 44. 1 Vern. 9.  117. 2  Cha. Ca. Itim 1. 
12
THE CUSTODY.
  It is certain that the king exercised this prerogative be-
fore stat. of 17 Edw. II.  de prtr. regis; for  it  appears  to
have been exercised by Ed. l.(d)  And it is as clear that
When Bracton wrote about the end of the reign of Hen. 111.
that the king had not possessed it.  Hence it follows, that
it must have been given to Edw. I. by some statute not now
extant.(e)   And it appears by the  Mirror agreeing with
Fleta, that this prerogative  was granted by common con-
sent :  and this is acknowledged by Stamford.
  It was anciently held that the  king took to his own use,
and therefore might demise at a rent, all the possessions of
a natural fool, not of any other ideot, during his ideocy;(/)
but not that which he had title to by entry or action : and
therefore upon office^ finding that the ideot's ancestors died
seized of an estate tail, it  was sufficient to traverse the dy-
ing seized, for that only entitled the king.
  As it was presumed that natural fools could never attain
any reason, their guardians,  on this  pretence, anciently
took care of  their lands  in fee; (g)  but, as many  others
also suffered by this kind of disherison, it was provided
17 Edw. II. c. 10. and generally  conceded, that the king
should have the custody of the bodies and inheritances  of
ideots and  fools in fee,(/i) whilst they were so from their
birth,  (yet  otherwise  if  they lately became  so)  under
whatsoever lord they held; and  should give them in mar-
riage, and save them from all disherison : (i) yet, with this
addition, that  he should not deprive the lord of his services,
reliefs, and  the like, until  the ideots were of lawful age.
  It seems to  have been the general practice for the lord
to commit the custody of the ideot's land, to another, for
he is not liable to a forfeiture; (k) but  this was disallowed
after the above statute; unless some special custom could
  (J) Brit. c. 66. 167.              (A) Fie. 1. 1. c. 11. s. 10.
  (e) Mirr. Fleta  4 125.            (t) 4 Co. 148. 3 Gwillim's Bac. Abr.
  (f) 21 Ed. JH.  Stam. Tr. 34. 1 H.  529.
VII- 24.                        {k) Shep.  Ct. Keeper, c. 22. 172.
  (S) 1 Bl. Com.  302. 
THE CUSTODY.
13
be shewn which authorized it: (/) and it was held  in this
case, that the committee could  not bring an action in  his
name ; being only as a servant appointed by  the lord to
keep possession  for one  who could not keep  it for him-
self;^) and this doctrine seems to have been  founded on
Beverley's case, (4 Rep. 126.) where it was agreed, that
the ideot might have  a quart impedit in his own name,
which was afterwards recognised.
   The  principle of vesting in the crown the person and
property of ideots, is also well-founded in the general prin-
ciple of the monarchical part  of the British constitution ;
for as the social compact  is  mutual by allegiance on  the
one hand,  and protection on the other,  so those who are
incapable  of  allegiance,  seem to claim  that protection
which, though they cannot purchase by their  persons,  is
yet contributed for  by  their possessions, and called for by
their imbecility: and  Fitzherbert says, the king, by  the
law of right,  is to defend his subjects, their  goods and
chattels, lands and tenements,  and therefore,  in the law,
every loyal subject is  taken into the  king's  protection:
hence the king ought to have him, who cannot defend or
govern himself, nor order his property, in his custody, and
to rule him and his property.
   Thus  the king, by his prerogative,(n) has the sole inter-
est in him, of granting  the estate of an ideot, to whom he
pleases  without  any account: (o) but it  is otherwise in
cases of lunacy; for there the grantee takes nothing to his
own use, but must give  security to account to  the lunatic
if ever he shall come to be capable,  or else to his legal
representatives:—this distinction has been  carefully re-
garded,  and it has been determined  with  great precision,
that a jury may find  a person  an ideot,  without adding
" from his nativity," or for  any number of years: for the

  (l) Hut. 16. Eas. 16 Jas. I.  Drury   («) Edward III.
v.  Fitch.                        («<) Moor 4. 2 Mod. 43. & Rep. 170
  («i) Dyer, 25, 302.  Noy, 27. 
14
THE CUSTODY
  law does not allow of any other ideocy, than  from birth.
  The grant of the person  of  an ideot couples an interest
  with a trust during the ideocy, and therefore it descends
  to the executor of the grantee.fjo)
    The object of thus vesting the lands and goods of ideots
 and lunatics in the crown by  statute, de prerogativa regis,(q)
 was founded upon the most benevolent principle,  to pro-
 tect them from waste and destruction,  that they  and their
 household, or family, may   subsist  and  be competently
 maintained out of its profits, and that any surplus might be
 preserved  for their use  upon their recovery;  hence it is
 that the lands cannot be aliened within  that time, nor can
 the king seize  any part  of  them to his own use, but is
 bound to repairs : (r)  and if  the party happen to die dur-
 ing his indisposition, the residue  which was formerly ap-
 plied, by the advice of the ordinary, in masses for his soul,
 is now paid over to his administrator or executor.(s)
   The court of wards, where these cases were once cog-
 nisable, and which was established by 32 Hen. VIII. c. 46.
 A. D.  1540, was abolished   by  stat.   12 Car. II. c. 24.
 A.D.  1660.
   Thus it appears,  that though the custody of the ideot,
 and of his property, vests  in the king, yet the freehold re-
 mains in himself and for his use : but he is,  nevertheless,
 wisely restrained from alienation,  and if he  were to  con-
 vey any part of his estate,  the king, by scire facias, against
 the alienee  would  re-seize it.(t)   Provided  such alien-
 ation was made after inquisition found,  from which time
 only the king's interest accrues : yet it has been held, that
 to prevent incumbrances,  this finding has relation back to
 the time of the ideot's birth.(w)  But,  if a person had once
understanding, and became a fool by chance or misfortune,
the custody  of him was not given to the king,(x)  and if he
  (J>) 2 Mod. 44.                  (s) Reg. 266. 32 Hen. VIII. c. 46.
  (y) 4 Co. 127.  17 Ed. II. c. 10.       (*) 13 Eliz. Dver 302. 2 Rep. 125.
  (r) 3 Atk. 309. Stamf. Pr. Reg. c.9.    («) 8 Rep. 170.
f. 35.                          (x) Staundf. Prer. 9. 4 Rep. 124. 
THE CUSTODY.
15
had  so much knowledge as to measure a yard  of cloth,
number twenty pence, or rightly  name  the  days of the
week, he was not accounted an ideot, and the king had no
prerogative.  But in  a case, where there  was  a general
finding, and afterwards it was said, for so many years, and
not from his birth,(t/)  it was held to have been  from his
birth, and the latter words to be surplusage, and the king's
prerogative took place.
  The king is thus rendered by the law the grand keeper
and  trustee of the persons and fortunes of ideots and lunat-
ics, for their protection and maintenance during their lives,
and  at  their deaths to render the  estates to their heirs—
so that they themselves cannot waste it, nor their right
heirs be disinherited by their unfortunate situation.(z)
  There is a great difference between an ideot  and a lu-
natic, in the stat. of Edw.  II. which says,  that  the  king
shall have the interest and custody of ideots ;(a) but when
it speaks of lunatics, it says,that the king shall provide that
their lands be safely kept without waste, and they and their
household be maintained;  as in Beverley's case.(fc)
   The cases of infants,  and  ideots or lunatics,(c) though
often coupled,  are by no means similar, upon  the whole
view of them ; and  therefore I have wholly avoided of-
fering any parallel, and have endeavoured to avoid draw-
ing a simile of one to  the other: besides, it is to be consid-
ered, that the crown takes the one as a trust, though cou-
pled with an interest, and the other purely as an interest
service  and duty owing to him, and which comes to the
king in point of tenure; and therefore the king may grant
the  custody of a ward cum accident,  but there  can be no
such grant of the custody of an ideot:—if the emolument
and advantage that by law are vested in the king, in the
case of ideots,  could be  separated  from the trust, then
                              (a) 17 Ed. II. stat. 1. c. 9 c. 10.
                              (6) 4 Co. 127. 2 Sid. 124. Co. 4
                              (c) 1 Vera. 9.
  (y) 3 Mod. 4.?.
  frt Bro. U. 4, fi, 7. 2Hcn.Vn.f.3.
4C>. 126. 8 Co.  170. 1 Hen. VII. f.
24. Dyer 302. Keg. 266 
16
THE CUSTODY.
  clearly  it might be transferred,  and there has not  been
  any such grant since the making the stat. of Edward : and
  the incovenience is  apparent; for if a  grantee  makes an
  infant executor, or  dies intestate, what shall then become
  of the custody of the executor ?
    The distinction,  established by  statute, between the
  king's interest in  the  lands  of  an ideot and lunatic, is ad-
  vanced in the books which speak of this matter :  and, on
  this foundation, it has  been resolved, that  the  king may
  grant the custody of an ideot,  and his lands to a person,
  his heirs and executors,(c) and  that he had the same inter-
  est in such an one as he had in his ward, by the common
  law.  But the  king cannot grant the custody of the body
  and lands of a lunatic to one  to take the profits to his own
 use.(d)
   In whatever county a lunatic happens to be, the care of
 him devolves upon that county.(e)
   Where the custody of a son, who had committed acts of
 extravagancy and disorder when he was drunk, was com-
 mitted to a friend  by the father, and after his death con-
 tinued by the mother, at whose death the son was dischar-
 by a homine replegiando, the court held that the trustee had
 no right, to retain possession of the estates and rents to
 which the son  was entitled, in  order  to convey them to
 persons to whom they were devised over in the  event of
 his lunacy : and there appearing an undue contrivance to
 effect this, he was  ordered to pay costs of suit.  Barnard.
 358.(1740.)
   While the  lunacy of any  person is in question,(/) the
eourt will make a provisional order as to his effects, till that
point is determined ; and  will stop  the removal of  the lu-
natic ;(g) and  this  is perfectly consistent with the general
supervision vested in the crown  in such unhappy cases.
  (c) Bio. Id. 45.  Dver25. Moor. 4.  pi. 12.
pi. 12. And. 23. 4 Co. 127.  Co. Lit.    (<?) 2 Ves. jun. 382.
247.                          (/)3Atk. 635.
  (rf) 3 Mod. 43. Skin. 5. 177. pi. 7. 2   (§•) Arab. 82.
Show. 171. pi. 164. Vern. 9.  Moor 4. 
THE CUSTODY.                   17
   Lord chancellor King, upon a regular application, sent
 a messenger to stop a lunatic at St. Alban's, who was on her
 road to Scotland, conducted by her husband's nearest re-
 lation ;(h) and ordered a commission to be  issued, and the.
 rents of her estates to be remitted hither.
   A caveat may be entered against issuing a commission
 of lunacy ; and, on hearing the question, a personal exam-
 ination in court will be ordered ;(i) and if upon the whole
 the lunatic gives coherent  and rational answers about his
 estates and property, though he may be deficient in other
 subjects, and particularly as to the commonest question of
 figures, this weakness will be deemed no foundation for a
 commission.   But this is  not  conclusive, further applica-
 tions may be  made,  perhaps   he  may grow worse  and
 worse, and at last become non  compos mentis.
   Where the property of a lunatic is too small to bear the
 expenses of a commission, the court, on petition for a refer-
 ence to the master, to enquire  the state of her fortune, and
 a  proper maintenance,  will make  such an  order, upon
 proper  affidavits,  without any reference for payment of
 dividends for the two ensuing quarters, (k)
   There are  many  similar instances on  the   register's
 book.
   And where imbecility of mind proceeded in a great de-
 gree from epilepsy,(/) lord Ellenborough ordered a physi-
 cian to consult with those already employed, and after-
 wards in the most  tender manner, to find the means of vis-
 iting the patient, without alarming her ;  for the purpose of
 determining whether she was in a state of mind to manage
 her own affairs, and in the mean time  restrained her from
 executing any power  of attorney.
   If a beneficed clergyman becomes lunatic,  his living is
not vacated thereby, so as to let in the patron to a presen-
  fA) Ibid.                      (fr) 4 Ves. jun. 798. 2 Dickens, 634.
  (i) 2 Ves. sen. 408.              (0 8 Ves. 66. (1803).
                       4 
18                  THE CUSTODY.
tation :  but it is most adviseable for his next relations to
see that the  duty  be properly supplied ;  otherwise  the
churchwardens may, ex officio, apply for a commission of
Junacy, and  with the permission or approbation of  the
bishop of the diocese, obtain a sequestration, and  employ
a fit person themselves, as a curate ; or the  bishop, or his
archdeacon, may appoint a curate.
  In the case of Hall v. Warrenlm) after the finding under
the commission, the living, which was in the diocese of
London, was sequestrated ; and the incumbent soon after-
wards died.
   The object of the ordinary in sending  out his  seques-
tration, is,  that the cure should not remain unsupplied, and
to preserve its profits ;(n) which, as  in cases of death, or
during suits, is for the benefit of the successor, so  in cases
of lunacy are, upon the principles stated in another part of
this work,  for the incumbent upon his recovery.
   The  persons appointed sequestrators have a duty some-
what similar to that of a committee ;(o) first giving bond
for their fidelity to the ecclesiastical judge in gathering the
profits, and rendering a true account;  they cannot main
tain any action at law for  tithes in their own name ;(p)
but only in the spiritual court, or before the justices of the
peace,  where they have power by law to take cognizance.
 in passing  their accounts, they are allowed  out of the pro-
 fits a reasonable sum, according to their trouble in gather-
ing the tithes, and for supplying the cure, and in maintain-
 ing the incumbent and his family.
   If upon  recovery he is dissatisfied with their  measures,
 his proper remedy is in the spiritual court;  and if he files
 a bill in equity, the bishop must be a party.(^)
    Upon an information in  the king's bench  against a phy-
 sician, for assaulting and beating an alderman, under pre-
(m) 9 Ves. 605.
(n) God. ap. 14.
(o) Wats. 30.
(p) John*. 122. Bunb. 192.
!q) Bnnb. 192. 
THE CUSTODY.
19
tence that he was a lunatic, for imprisoning  him  until he
procured him to execute a letter of attorney to his wife,
by colour of which he disposed of 1,000/. in  value, appar-
ently to his own use ; it appeared  also  that he had  de-
bauched his wife, handcuffed the husband, given him sev-
eral strong purges in the night, and carried him out at one
or two o'clock in the morning bare-headed when it rained.
He was sentenced to stand in the pillory, to be sent  to the
house of correction in Southwark,  to  be  whipped naked,
and to be kept at work there for a year ; to be fined 600/.
and to find sureties for his good behaviour  during life—
Rex v. Dr. Fellow*. R. 12 Ann. Fortes, 166. 
[  20  ]
                    CHAP   III.


                   THE COMMISSION.

1HE king's Drerogative being re-established, we pass on
to the process by which his authority is exerted.
  By the old common law the writ de ideota inquirendo is-
sued from the chancery to the escheator of the  county, or
to the sheriff; and there is a distinct writ  in  the  register
to enquire and examine the ideot  himself directed to the
escheator.
  These writs were returnable  into  chancery,(a) and the
ideot in person, or by his friend, might come into court, or
sue out a writ to certain persons to produce  him  in that
court, or in the  council;  and  if he  was  there found
not to be ideot or lunatic, the former writ and  return be-
came void.
   The revenue arising to the crown from these  writs,  and
from this custody, has been considered as a hardship upon
private families ; and so long since as in 18 James  I. it
came under consideration of parliament, to vest this custo-
dy in the relations of the party, and to settle an equivalent
upon the crown in lieu of it: but the instances are very
few, if any, of oppressive exertion  of  this  power,  since it
seldom happens that juries have  found a man  an ideot a
nativitate, but only  non  compos,  from   some  particular
time ;{b) which as we have already suggested,  has an op-
eration very different in point of law.
   The question of ideocy is tried  before the  escheator or
 sheriff, by a jury of twelve men, and if they find the party
fo) F. N. B. 232. 9 Rep. 31.
(b) 1 Bl. Com. 303. 
THE COMMISSION.
21
vurus ideota, the profits of his lands, and the custody of his
person may be afterwards  granted by the crown to some
subject who has interest enough to obtain them by applica-
tion to the court of chancery.  The jurisdiction which the
chancellor has generally, or perhaps always exercised in
these cases, is not necessarily annexed to the  custody of
the great seal,(c) for  it has been declared by the house of
lords," that the custody of ideots and lunatics was in the
power of the king, who might delegate the same to such
person as he should think fit:" and upon every change in
the person of the  lord-keeper, a  special authority, under
his majesty's sign manuaLis granted to the new chancellor or
keeper for this purpose  : and for this reason no application
by petition, or otherwise, on the subject of lunacy, can be
heard by the master of the rolls, except he sits  for the
chancellor.(d)
   Hence it is that no appeal lies from the  chancellor's or-
ders upon this subject to  the house of lords ; but to the
 king in council:  for after the jurisdiction of the court of
wards was taken away,(e) that of ideots and lunatics revert-
 ed back to the court of chancery, to which it originally be-
 longed.
    The method of proving a person non compos, is very sim-
 ilar to that of proving him an ideot.(/)  It has been found
 preferable to proceed by a commission, rather than  the
 ancient writ; and therefore the first  step which is neces-
 sary, is to present a petition to the lord chancellor, verified
 by proper affidavits, stating  the situation and tenor of con-
 duct, with some medical opinion thereon tending to shew,
 beyond a doubt, the insanity of the party : upon this peti-
 tion a commission is ordered to be passed, under the great
 seal, to inquire into these facts, in the nature of the writ dc

   (c) 2 Atk. 553.                Com. 303. note. I Dickens sxxiii.
   {d) Dom. Proc. 14 Feb.            (e) 2 Atk. 553
 1726. 3 P.  W. 108. Christian's 1 Bl.   (f) IB. Com. 304. 
22
THE COMMISSION.
ideota inquirendo; this is the foundation  of all the subse-
quent steps—all which are carefully detailed in the appen-
dix to this work.
  It is necessary to proceed upon the commission without
delay ;  in order that it may not appear that it was applied
for in order to answer any sinister purposes : for to keep a
commission  without  executing  it  for any length of  time,
may be of dangerous consequence ; to terrify  and distress
the party or his relations, or perhaps to make him obedient
to improper  government ;(g) and  therefore, it being also a
contempt of the court, will be  superseded with costs.
  And as it frequently happens that some of the relations
take the charge of the person  and effects of a lunatic,(/i)
the court, upon  application by the heir at  law, for a restitu-
tion, will make  a provisional order as to the property, and
direct that the lunatic should be produced on the next, or
some subsequent day, for the inspection of the court.
  When a man is found to be  an ideot from his birth, by
office, (i) if he supposes it false,  he may apply in person to
the court, and pray to be examined whether he be ideot
or not;  or his friends may sue a writ out  of chancery, re-
turnable there, to bring him into court for that purpose ;(k)
and if he be then  found not  to be ideot, the office found,
and the whole examination and  the commission become
void, without any traverse, or monstrans  de droit, or other
suit.   The same doctrine  hoids as to  lunacy, though the
consequences are different. (/)
  And here  it may not be improper to remark, that no af-
fidavit  can be read which  is  sworn before the petitioner
himself :(in)  and any petition founded thereon, will be dis-
missed with costs out of his own pocket.   At common law
it is always objected  to and discountenanced, and  equally

  (.§•) 2 Atk. 52. Barnard. 356.         (k) F. N. B. 532
  (A) 3 Atk. 635.                 (<) 3 Atk. 635.
  (i) 9 Co. 31.                    (wj 3 Atk. 313. 
THE COMMISSION.
23
so in equity, from the inconvenience which would arise if
such a practice were suffered.
  A person found lunatick  by a competent jurisdiction
abroad, may be so considered  here ;(n) and  if he  be a
mortgagee, within 4 Geo. II. c.  10.  he will be  ordered to
convcy.(o)  And  if a lunatic subject of this country, be
resident  abroad, or be carried thither, a commission may
be issued, and evidence of his insanity, by affidavit of per-
sons knowing him, must be procured to aid the finding
him lunatic, besides the other proper evidence of his luna-
cy.  But an inquisition in England is not a sufficient foun-
dation for a grant of lands of  a lunatic in Ireland;  there
must be an inquisition  and a finding there under the great
seal of Ireland for that purpose.(p)
  The standing orders are, that a jury of the county or
neighbourhood shall be returned; which prima facie car-
ries an evidence that he is supposed to be resident in some
county in England; but, notwithstanding  this  is the com-
mon form, and what is usual and ought to be done in com-
mon cases, that does not determine that in all cases of ne-
cessity it must be so.
  These commissions de lunatico inquirendo, have long since
superseded the old writs; but there is  no precedent of a
writ to the escheator  to inquire of lunacy, for he was an
officer of the county, to inquire of the revenue of the crown;
and therefore where the lands came to an alien, or on for-
feiture, or on death of a tenant in capite, to the king, where
the guardianship came to the crown, the writ went proper-
ly to the escheater, because it was for the king's profit and
interest.  But in the case of a lunatic, where the King is to
take no profit to himself, but merely a right arising from
the care, the king, as father of his country, is to take of all
his subjects not capable of taking care of themselves, there
  (n) 2 Ves. jun. 587, 8.            (p) 1 Schoal's Rep. 301. Hil 1804.
  (o) 1 Ves. 29« 
24
THE COMMISSION.
 should be no writ to the escheater, who was not a proper
 officer for that purpose.
   It is true, that in all writs to the escheator, there is  a di-
 rection that he should go to the party, but  is not to found
 his return thereon, for he is to have a jury besides : where-
 as the writ to the sheriff in those instances, in  Fitzherbcrt
 and the register, does not direct the sheriff to  go  to the
 person: the reason for which difference does not appear:
 but whatever was the  ground, the  commissions have put
 that out of the case, for they direct him not to go to the per-
 son, but to make the inquiry.(q)
   The ground of turning these writs into commissions,was.
 that as it  stood by law as to  lands of aliens, or  on forfeit-
 ures or guardianships, where the crown  was to have the
 custody, they might be by writ to the officer of the  king, or
 to commissioners: and as they might be to the one or the
 other, and the commissions were more large, they fell into
 that method.
   The forms are various, so that nothing arises  from them
 to shew the law to be, that the  lunatic or ideot must be in
 in England.  There  can be  no good reason why, if  any
 subject having an estate in England, happens to be ideot
 or lunatic, but is out of  the kingdom, there can be no en-
 quiry here: no enquiry can be made beyond sea ; for it is
 not to be executed by the commissioners only,(r) as in tak-
 ing an answer, or assigning a  guardian, which may be ex-
 ecuted beyond sea ;'s) but there must be a jury  to inquire
 the fact, which must be of a county in England;  then, if no
 inquiry could be here, both the person  and his property
 would be in a very unfortunate case ; and also the king, as
 to his prerogative.   As to ideots the king has an undoubt-
 ed prerogative ; and that prerogative has prevented a great
many proceedings for the care of ideots, and has occasion-
ed a jury to find the contrary in many cases, to avoid that.
  (q) Ren;. 19.                   (s) Arab. 112. 3 Gir B. Abr. 527.
  (r) Ambl. 109. 
THE COMMISSION.
25
But if any one  can convey the ideot  beyond  sea, the
king cannot have the benefit of the land and person as he
ought; and as to lunatics, it  would deprive  them of that
care and protection they are  entitled  to from the king^
which he is bound by his regal authority and power to ex-
ert ;  for then no such commission would issue, or  care be
taken, which would be very unfortunate, (t)
   If the commissioners and jury are satisfied by clear evi-
dence that the party is a lunatic, they will find  so without
inspection ; if not satisfied without it,  they  will make no
verdict or return that he is not; and there it  must rest, no?
can any effect arise from it,  Nor is this  conclusive, for if
he is beyond sea, and is of sound  mind himself, the laying
hold of his lands is notice to him^ that such proceedings are
against him, and he may come and appear, or  any person
opposing the commission in his behalf will be heard, and if
insisted on, and reasonable evidence laid, he  must  be then
inspected.  The nature and circumstances of such a case
warrant a commission, and the common forms of these or-
ders is not evidence of the strict  confined rule of law that
cannot be exceeded.  As to what lord chancellor said in
Beverley's case^ the reason given there, is  not, according to
lord Hardwick, the right or true f eason$ for there would be
no fruit of such a  commission against a dead person ;(n)
and it may issue into the county where  the absent  lunatic's
property chiefly lies, and where chief  part of  the inquiry
in consequence lies, rather  than to  any distant county
on the coast, nearest to the place  whereto he is gone.
   Ideocy may be tried by inspection, because it may be
discerned ;(o>) but lunacy cannot without  a commission.
   The commissioners and jury have a right to inspect the
person of the lunatic, and examine him before them: they
do not always cause him to be brought before them, unless
  (t) 2 Ves. jun. 405. Exparte South-   (u) 2 Ves. sen. 406.
cot.                          Cw) Skin; 5.
5 
26
THE COMMISSION.
 a considerable doubt was raised on the evidence as to his
 sanity; but they have a right to require it, without the pri-
 or order of court;  and if the persons in whose custody he
 is, refuse to produce him, the court will censure them, and
 direct them to pay costs ;(x) and commit them to the  fleet
 prison for contempt :(y) and a habeas corpus lies to bring
 him up for that purpose.
   The court denied a commission against a person of very
 weak mind,(z) but denying a commission does not thereby
exclude all relief against any deed or will improperly ob-
 tained.
* If the heir, upon whom lands descend, be lunatic at that
 time,(a) the laches of himself and  of  his friends  of suing
 livery do not hurt him:  otherwise if he had  been sana
memoria, since the  death of his ancestor.—Burcher's case.
  The commissioners may summon witnesses, as incidental
to their office; (b) and, on application to the court, they
 will be ordered to  attend, if they otherwise decline.
  (x) 2 Ves. sen. 401. 1751.          (a)  Hob. 137.
  (j) 1 P. W. 701.                (6) 6 Ves. 784.
  (s) 2 Ves. sen. 407, 408. 
[  27  ]
                    CHAP.  IV.

                   HABEAS CORPUS.

UPON a habeas corpus to bring up the body of a luna-
tic, the practice is  the  same as on any other habeas cor-
pus : (a) and the liberty of the subject being  concerned,
no indulgence, by first taking out a rule to return the writ,
is to be granted : the return must be made, or the person
produced immediately, or an attachment issues.
  Where a person was too infirm and  weak to be brought
into court upon a habeas corpus, granted upon a represen-
tation of her being in the hands of  improper persons, who
were suspected of using artifices with her, in order to the
obtaining a will from her  when she was under very im-
proper circumstances of mind to make one, and was too
much under their influence, even if her understanding and
memory had  been more perfect and  less disordered by
intemperate drinking, a rule was made to shew cause why
an information  should  not  be exhibited against them for
the misdemeanours charged in the affidavit, and that cer-
tain medical and other persons should have continual ac-
cess to her, but she died the next day.(b)
  Time for the return has been enlarged on the affidavit
of a physician, that the lunatic was not fit to  be brought
into  court,  and the  relations were about to apply for a
commission ;  but the court  refused to grant access to the
lunatic, unless  that application were made on behalf of a
person entitled to ask it.(c)
  But the  court have  the power  of committing any one
fr.\ <9 Sh-a 915.               Burr. 10TO.
$ Rex  v  Wright, 1 Geo. III.   (c) 3 Burr. 1363. 
^°                 HABEA5 CORPUS.

who has  the  care  of the  person for not  producing
him.(d)
  Access was denied  to a person entitled  to an appoint-
ment,  though  merely  to  see the capacity  of execut-
ing it,(e)
(d) 1 P. W. 701. 1721.           (e) 6 Ves. 7. 
[  29  ]
                     CHAP. V.

     OF EXECUTING AND RETURNING THE COMMISSION.

 X HE general rule is, that the return must be a clear and
unequivocal answer to the commission:  as, if the commis-
sion were to inquire whether A. was a lunatic, or enjoyed
lucid intervals, so that he was incapable of governing him-
self and his own affairs; a return, that  he is  from weak-
ness of mind incapable, and has been so  for certain years,
but how he became so they know not, is a void return: that
he is not always in his senses, like other men, and that it
arises from fear and provocation; (a)  or, is not of sufficient
understanding to manage  his own affairs; or so weak in
judgment and understanding as not to be capable of mar-
rying, &c. and this for twenty years past; or not a luna-
tic, but incapable, &x.; these are  all void, for they do not
find by express words that he was or was not a lunatic :—
the general words are of unsound mmd.(fc)
  By the statute, an incapacity for marriage is made  the
consequence  of a person's being found  a lunatic ; (c) as
the act uses the word lunatic only, it would be of danger-
ous consequence to add a different sort of lunacy here,
and under the act.  There must  be an absolute finding:
and they cannot find an inference only without finding a
positive fact.
  On a writ  of dower, it was insisted  that the party was
ideota,(d) and pleaded that she was sance mentis.  Sound
mind is of certain signification, and known in our law ; and
you cannot, in pleading say, that  a man is lunaticus, but

  (a) 3 Atk.  168, 9.             years is a good return. 2 Ves. 408.
  (b) 3 Atk.  168.                (</) 2 Saund. 352.
  (c) Finding ideocy for so many 
30
OF EXECUTING AND RETURNING
non sanoi mentis.   Here it would be impossible upon the
inquisition to know what to plead ; and if the court should
break that great land-mark, that a  person to be a lunatic
must be found to have some degree of unsound mind, they
would not know how to stop.
   The commissions  are framed in analogy  to the writ de
ideota inquirendo ;(e) and if the inquisition is whether A. is
a lunatic, they cannot  find him an ideot; and there must
be a new commission.
   The court, though desirous of maintaining the preroga-
tive of the crown in its just and proper limits, yet, at the
same time, is  cautious  of making precedents on its records
of extending that authority, so as to restrain the  liberty of
the subject, and his power over his own person and estate,
further than the law will allow.
   The prerogative, and the rule of law, are in this respect
 still the same, and cannot be  altered but by parliament;
 for it is only  the form of returns  that is changed by the
 court.
   If the return departs from the  direction of the commis-
 sion it is void ; but though it differ in words, yet if there
are equivalent words,  it will  not  be such as to  quash it;
for it is not  a variance in words, but  in the sense and
meaning, that will quash it.
   The uniform language of returns is, lunatic, or non com-
pos, or insane memory; and they are ordered to continue
so: and a  considerable distinction has been always pre-
served between insanity and weakness.
   A precision is materially necessary ; for  a finding that
the party was worn out with  age and incapable,  is bad;
because she might be bedrid and yet not insane :  a weak-
ness of mind may create incapacity of governing from vio-
lence  of passion,  and from vice and extravagance;  and
yet not be sufficient under the rule of law and constitution
(<0 3 Atk. 169. 
THE COMMISSION.
31
of this country to found a commission :  possibly the law
may be too strict, and in some cases it might be useful that
a curator or  tutor should be set over prodigal and weak
persons, as in the civil law.
   Being non compos, of unsound mind, are certain terms in
law, and import a total  deprivation of sense ; now weak-
ness does not carry this idea along with it: but courts of
law understand what is meant by non compos, or insane, as
they are words of a determinate signification.  Lord Coke's
definition is, that they are persons of non sane memory.
   The term non compos mentis is used in the statute of limi-
tations,(/) which has relation to the time of the removal of
the disability; this term  is therefore legitimated by this
and several statutes; and,  like  many other  expressions,
has been sanctioned by acts of parliament to a particular
sense, which before may have borne  a different meaning.
   Lunatic is a technical word  coined  in more  ignorant
times, under an imagination, that the  parties were affected
by the moon; but it has since been discovered by philoso-
phy and ingenious men, that their derangement  is owing
to a defect in the organs of the body.
   Thus the  reason of the court enlarging the manner of
finding, was to avoid the difficulty of obliging the jury to
find express  lunacy, because they might think it more  a
case of ideocy, which was equally a case that called for
the care of the court.
   The grant of the custody of an  ideot,  is not limited
during the ideocy, for that is deemed perpetual; nor has
it ever been extended to the  executors of the  grantee, but
ceases with his death.
   Finding that a party was ideot for  any number of years
past is repugnant; for ideocy implies a nativitate, which is
the reason it is tried by inspection, whereby it may be dis-
(/) 21 Ja. I. c. 16. s. 7 
32         OF EXECUTING AND RETURNING
cerned;  this is not the case with lunacy, which cannot be
discerned in its lucid intervals, which constitutes the grand
distinction between them.(g)
  In lord Wenmon's case they delayed, because of the con-
sequences of finding; but on  an inquisition of lunacy, they
found him a lunatic immediately.(h)
  Every return to an habeas  corpus, and also to a commis-
sion, must contain such a certainty as shall be unequivocal,
and not leave the matter in doubt; it being for the purpose
of informing the  court as to facts, whose duty it is to de-
clare the law  arising therefrom ; and also to apprize the
opposite party of what is meant to be proved, that he may
have an opportunity of answering or traversing it; for the
facts are  traversable—the law is not traversable.   If the
return be certain on the face of it, that is sufficient, and the
court cannot intend facts inconsistent  with it,  for the pur-
pose of making it bad : if presumptions were to be allowed,
certainty in every particular  would be  necessary, and no
man could draw a valid  and sufficient return.(i)
  A return finding the lunacy,  but omitting to state wheth-
er the person had any lucid intervals, is not an objection to
it in point of form :(Zc)  but it seems best to refer to the day
when any act of lunacy was committed, and shew whether
there were any lucid  intervals since ;  and  the  secretary
said this was the usual practice.  Where there is any mis-
behaviour in the execution of  the commission, the  court
may quash it and issue a new  commission.(f)
  In producing evidence upon  executing  the commission,
it should be considered by the solicitor, that not only insan-
ity is a  fact, but it  is an habitual fact, a disposition, a
permanent affection of the mind which is to be  prov-
ed :(m) and as habits are only  acquired by reiterated acts,
 they are hardly ever proved, except by a long succession,
  {g) Skin. 5.                    (k) Rex v. Lyme Regis.
  (h) 3 Atk. 170. 4. 1744.           (J) 5 Ves. junr. 450.1800.
  (») Doug. 154.                  (m) 3 Atk. 6. 
THE COMMISSION.                 33
a continuity, a multiplicity of actions, of which it is impos-
sible to have any other proof than the testimony of those
who have been intimate and attentive observers of them.
  Most acts of insanity are  positive ;(n)  a single action
may sometimes suffice for a perfect proof of folly, because
there are some acts which bear so marked a character of
illusion, of derangement, of alienation  of mind, that it  is
impossible for a man in his senses to  commit them ;  and
though a person in a  state of insanity  may perform sensi-
ble actions, yet a sensible person cannot commit a distin-
guished act of folly, (o)
  (n) 2 Evans's Pothier, 593.         (o) 2 Evans's Potbier, 598.
0 
E  34   ]
                     CHAP. VI.

          OF CONTROVERTING THE COMMISSION.

A COMMISSION  of  lunacy may be controverted  by
petition to supersede it,  to traverse  it,  or for an issue  to
try the fact at law.
   The traverse of an inquisition is matter of right at law, by
2 Ed. VI. c. 8. s. 6. (a) and  is no favor, but de jure ;(&)
and carries the fact  to be tried at common law:  it is a
short process,  stating the inquisition, and taking the com-
mon traverse upon it, and the attorney general joins issue;
the verdict, or finding, must be correspondent to  the is-
sue, (c)
   An inquisition is always admitted  to be read, but is not
conclusive evidence, because it may be traversed.(d)
   Where there is any mistake in the execution of the com-
mission, it must be examined into, and the court, if they see
cause, may quash  it, and direct a new  commission ; but
there is no melius inquirendum^ for that is only grantable on
the part of the crown, which  cannot traverse as the sub-
ject can; and therefore the court directs a new commission.
   If at the second inspection,  the  lunatic appears better
than he did at  the first, and this does not prove  him to  be
fool or mad-man, the finding must be accordingly.
   Fitzherbert N. Br. shews, that it is a common method to
inquire by inspection, after  an inquisition returned ; and
there have been many cases of that sort; but if upon  in-
spection the chancellor is at all doubtful, there ought to  be
some better  method  of determining it, and the  statute of
Edward VI. seems to be made for that purpose,
 (a) 2 Ves. jiin. 833.              (c) Ibid. 452.
 (b) 5 Vet. jun. 460. 452,           (</) 2 Atk. 412. 
OF CONTROVERTING THE COMMISSION.
35
   " If any person be, or shall be, untruly found lunatic,
&c. all persons grieved, or to be grieved by  any  office or
inquisition, shall and may have his or their traverse to the
same  immediately, or after,  at his or their pleasure,  and
proceed to trial therein, and have the like remedy and ad-
vantage as in other cases of traverse, upon untrue inquisi-
tions or offices founden."
   But, although the party is thus entitled to traverse, he
must  come to  chancery  for leave to suspend  the  cus-
tody.^)
   To try the question by an issue, is of  greater expence
than a traverse :  a traverse  is binding  upon the lunatic,
but not upon him to whom the grant of the custody of the
land was made, who claims as a purchaser.  It would cer-
tainly be productive of  great mischief if this  grant were
suspended on slight grounds : but the  court have always
exercised that right on serious and well-grounded applica-
tions  ; and if any thing has been done already, it will abide
the event of the traverse.
   There is no case where an ideot has traversed by attor-
ney ; though many where a lunatic has : and therefore an
ideot appears in court in propria persona, when  he  asks
leave to traverse, but a  lunatic does not: and there ought
by 18 Henry VI. c. 7. to be a month's time between the
return of the inquisition and the grant of the custody of the
land,(/) in order that parties may have time to come in and
tender such traverse.
   In all these inquisitions they are not conclusive;  for the
parties may bring actions at law, or file bills in equity, to
set aside  conveyances ; therefore it is better  to bind the
party to abide the  issue of a traverse.(g)
   When  the court thought it  a hard case in ideocy, the
 custody was not granted without leave to traverse  the in-
   M  Ler 86                  « Co. 168. Jones, 198. Show. 199. S
   ( h 3 Atk 5, 6, 7. 1743.         C. Skin. 45, S. C. Fanes's E..ts. 652.
   (isr) Trem. P. C. 653. 4 Co. Sadlers. 
 36        OF CONTROVERTING THE COMMISSION.

 quisition—by lord chancellor King : and peculiar circum-
 stances will guide the court in  this discretion ; as the ex-
 pence and income, where an estate lay in the West Indies,
 of changing the management ;(h)  and where a person was
 found lunatic under two inquisitions, and the  court would
 not allow a traverse of the second.(i)
   Not only the  lunatic,  but his heir,  is bound upon the
 traverse :(k) or it would have been a very fruitless act of
 parliament.   A trial, by inspection is  the proper  trial by
 the lord chancellor, as to the person : when there has been
 a solemn trial in the life-time of the lunatic,  who is bound
 himself, to say that, after his death, when he cannot ap-
 pear in  person, and cannot be  inspected  by a  jury, it
 should still be open to a traverse by the heir at law, car-
 ries a great absurdity with it.
   The alienee of a lunatic may traverse on inquisition, as
 well as the lunatic himself:(/) suppose  both  of them trav-
 erse, and he  is  found  a lunatic at the time  of the aliena-
 tion ;(m)  the alienee is certainly bound.  It is said  that he
 is bound, because he is a party to the  first,  but that the
 heir at law shall not; which would be a manifest injus-
 tice ; and still stronger  in the case of ideocy, where the
 crown grants  the  custody and profits of the  estate during
 the ideot's life :  the ideot dies,  and according to the  doc-
 trine attempted,  the heir at law might  come  in and trav-
 erse the ideocy:-~but the executor of an ideot cannot have
 an account against the grantee for the profits incurred dur-
 ing the grant from the crown.
   The lunatic is bound, and cannot traverse  the  inquisi-
tion when  he recovers his senses.  If the  grantor  was
really a  lunatic at the date of his grant, it is absolutely
void; and if void, so as not to pass the estate, it is void, so
 as not to bar an  entail.
(A) 3 Atk. 185.1774.
(t) Ibid. 184.
(fc) 3 Atk. 308.
(') Ibid. 312.
(m) Arab. 706. 
OF CONTROVERTING THE COMMISSION.
   But a  common recovery might have a different opera-
 tion from a deed to lead the uses ; for a common recovery
 will bar  the entail though there be  no deed to lead the
 uses, because it is in respect of the satisfaction of estate in
 value which creates the bar; yet if such a deed as this does
 not pass the estate, then the deed can  have no operation,
 as a recovery of an estate in satisfaction.   But a letter of
 attorney, executed by the lunatic, which is a deed, though
 revocable, yet is very different from  a common recovery ;
 and therefore every thing done in pursuance of it is void :
 as was determined in  Whitworth and Cholmely,  1744.
   But if he be found, not a lunatic, only  a weak man, and
 the deed was obtained by fraud or  imposition ; the court
 must, on a bill filed after  his death,  take it exactly in the
 same light as it stood before his conveyance ; if the alienee
 gained no right by this deed, he  can convey nothing to the
 trustee under the order of court; therefore the heir at law
 is not injured.
   But if the entail is barred, those uses are not existing,
 and no prejudice can arise from the  conveyance directed
 by the court.
  A conveyance made to a trustee for the lunatic, is good—
 but will not bar any right which the heir at law might ap-
 pear to have on atrial at law.(n)
  The committee cannot join  issue  on  a scire facias, to
 traverse  the commission ;  but it must be in the lunatic's
 own name.(o)
  If, upon a traverse, the party be found  not a lunatic, at
 the time of the commission  issuing ; or  it be  superseded
 before any part  of the property could vest  in the  crown,
no costs will be allowed to the party taking it out, however
 meritorious their intention : for  there  is  no fund out of
which the costs can  be taken, (p)
(n) 3 Atk. 313.
(<rt 2 Sid. 124
(/>) 2 Ves. jun. 832. 
38         OF CONTROVERTING THE COMMISSION.
  An order on a petition  in  lunacy, cannot be made for
sale of real estates to pay debts;  so as to prevent a bill" by
creditors :(q)—it must be done by bill.
  The proceedings on the commission are on  the law side
of the court, and  can only be redressed, if  erroneous, by
writ of error in the regular course of law.(r)
  When a lunatic traverses the inquisition, he is to be con-
sidered as a defendant, opposing the title found  for  the
crown, without setting up any in himself, as he must do in
a petition of right: and  the record  must be carried  down
to trial by the prosecutor of the commission;  for the luna-
tic cannot be deemed a  plaintiff, and so have power to de-
lay the crown : and  if illness prevents his appearing  at $ie
trial, and a verdict pass  for the crown, on no  defence, the
court will grant a new trial, (s)  Rex v. Roberts.
  A lunatic having made a different appearance,(*) on the
second time of his being inspected, was  allowed to trav-
erse the inquisition, and the grant of the custody was sus*
pended.
  Upon the return of the traverse to the inquisition,finding
that the party was a lunatic at marriage, and at taking the
inquisition, but at the time of a  verdict  directed as to the
fact, was not  a  lunatic, the commission was superseded;
but the court doubted  the propriety of such  a double is-
sue.  Ex parte Ferne.(u)
  An entire stranger, and having no interest, cannot trav-
erse a  commission :(x)  the court has  never been in the
habit of discouraging   any  fair and reasonably  provi-
dent application  with regard to the situation  of a  person
allowed to be a lunatic, if he is more pressed in the ex-
ecution of the commission than a tender and humane con-
sideration  of  his circumstances would  authorise, or of a
person not allowed  to be lunatic, but made the object of
  (q) 2 Ves. jun. 556.              (r) 3 Atk. 7.
  {r) 3 Bl. Com. 427.              (w) 5 Ves. jun. 832;
  (Y) 2 Stra. 1208.                (x) 8 Ves.  579. 
OF CONTROVERTING THE COMMISSION.        39
a commission.  The law has provided that no person shall
be in such a situation deprived of his liberty and the ad-
ministration of his affairs,  until the fact is ascertained by
a proceeding admitted to be ex parte, which the law sup-
poses may collect mistake ;(#) and therefore has given a
right to certain  persons  to traverse the inquisition.  See
2 Ed. VI. c. 8. s. 6.   And as the true interest  of lunatics
is not  consulted by persons, who act upon  their  own
views  of the sanity or insanity  formed upon  occasional
conversations, and  come  too rashly to the court without
sufficient  inquiry, yet it  is the duty of the court not to
censure too hastily any application upon a subject so very
important as this; but costs will be granted, if pressed for
by the other side.
   A person who has entered into any contract with a luna-
tic,(z) is deemed to have such an interest as to entitle him
to traverse the commission ; for such a person  having be-
come a bona fide owner in equity of his property, must ne-
cessarily be aggrieved by the finding, and he  may shew
that the party never was  lunatic(a)—Lord Eldon.
   Where a person having, for several years since the date
of the finding,(6) with the knowledge  of all persons who
had any interest in, or feeling about, the management of
his affairs, done all the acts  the  most sane  man is en-
trusted to do;  and  with regard to  his  amusements, oc-
cupations, mode of life, and every circumstance belonging
to the  question of sanity, been permitted for years to act
at his own discretion, without any providing, and so long as
a particular topic is not mentioned,his family permitted him
to  act without restraint, is scarcely to be deemed lunatic.
There  are persons  who are insane upon particular points,
who, if these points are not touched upon, act discreetly in
their own  affairs, and  even as trustees for others; still it
fv) 5 Ves. 450. 832.
(z) 7 Ves. 262. 1802
(a) 9 Ves. 610.
(6) Ibid. 
40        OF CONTROVERTING THE COMMISSION.
may be wise not to quash commission issued against them,
but give them the right of trying the facts by a traverse.
  It may be quashed or  traversed for not having been
executed in the county  near his abode, and competent
notice given of it* Cc)
  There is nO part of the duty, said  lord  Eldon, ch.,(d)
that occurs  in the exercise of this jurisdiction, more un-
pleasant, and requiring greater caution, than that  of de-
termining when a commission should be superseded ; for
though you may, upon evidence, arrive at  a safe conclu-
sion, establishing lunacy,  it is very difficult to determine
when the mind  is restored; depending  upon the circum-
stance, whether the party is led to those topics upon which
it was affected.  In  the  case of Mrs. B---------(e)  lord
Thurlow said,  that where lunacy  is once established by
clear evidence, the party ought to be   restored to as per-
fect a state of mind as he had before : and that should be
proved by evidence as clear and satisfactory.  I cannot
agree to that proposition, either as to  property, or with ref-
erence to such a case as this ;(/) for  suppose the strongest
mind, reduced  by the delirium of a fever, or any other
cause, to a  very inferior degree of capacity, admitting of
making a will of personal estate, to which a boy of the age
of fourteen is competent, the conclusion is not just, that, as
that person is not what he had been, he should not be al-
lowed to make a will of personal estate.  There may be
frequent instances of men restored  to a state of mind, infe.
rior to what they possessed before; yet it  would  not be
right to  support commissions against them.   On the other
hand, if lunacy has been satisfactorily  established, partic-
ularly where there  is a tendency to  do great personal
harm to others, I ought to be sure, by the.evidence of per-
sons having competent knowledge  upon the whole of the
 (c) 9 Ves. 610.                ther.
 (</) 11 Ves. 10. (1805.)            (/) Ex parte HolyUnd.
 (e) 3 Bro. C. C. 441. Atty v. Parn. 
          OF CONTROVERTING THE COMMISSION.        41

subject, that there  is an absence of that  disorder; and
those tendences may not be brought forward, when it may
not be generally known, that there is  any providence of
the law  thrown over the individual.
   There may be considerable evidence of the recovery;
but if the whole nature of the case has not  been stated to
the physician, who swears that he has frequently seen the
petitioner, and believes him  to  be of sound mind; unless
he can go further, and state that the ground of the opin-
ions of those medical gentlemen who  thought otherwise,
was laid before him, that he has had an opportunity of
considering it, and the result of the whole is, that just and
accurate as those conclusions were, or inaccurate upon his
own conclusion, satisfactorily formed, the present state of
the party is as he represents it; unless the affidavit comes
with some such  exposition, though the conclusion may be
right, not having those particulars before me, I cannot try
the truth of the  inference.   The question may be, wheth-
er the existence  of the commission may not be necessary,
in order to secure to the party the utmost comfort and hap
piness he is capable of enjoying.—An issue was therefore
directed.
   It is understood that if an ideot has title to land, either
by entry or action and  has  it not in possession, the king
does not seize it.(g)
                 (g) Broke's Al.r. tit. IJeoti..
                         7 
[  42   ]
                    CHAP. VII.

                   THE COMMITTEES.

         Section I.   Who may take these Offices.

£n the case of ideots and lunatics the civil law agrees
with ours, by assigning them tutors to protect their persons,
and curators to  manage  their estates.  For if a man, by
notorious prodigality, was in danger of wasting his estate,
he was esteemed non compos, and committed to the care of
curators or tutors, by the praetor ;(a) and, by the more an-
cient laws of Solon, such prodigals were branded with per-
petual infamy.
  But with us, when a man, on an inquest of ideocy(fe) has
been returned  an unthrift, and not an ideot, no further
proceedings have been had.   The propriety of the prac-
tice- seems to be  very questionable, says Sir William Black-
stone.(c)  It was doubtless an excellent method of benefit-
ing the individual, and preserving estates in families: but
it hardly seems calculated for the genius of a free nation,
who claim and exercise the liberty of using their own prop-
erty as  they please. Sic  utere tuo, ut alienum non ladas is
the only restriction  our laws have  given with regard to
economical  prudence; and the frequent circulation and
transfer of  lands and other property, which cannot be ef-
fected without extravagance somewhere, are, perhaps, not
a little conducive towards keeping our mixed  constitution
in its due health and vigour.
  The lord chancellor,(d) rather  than the court of chan-
cery, after the  commission is returned, usually commits
(a) Potter Ant. 1, 26.             (c) 1 Com. 304.
\b) Bro. Abr. Ideot 4.             (d) 2 Dickens, 555. 
                   THE COMMITTEES.                  43

the care of the lunatic, with a suitable  allowance out of
his estates for his  maintenance, to some friend or relation,
who is then called the committee.
   To prevent sinister practices, the care of his person is
not committed to his heir at law, because it is his interest
that the lunatic  should die.  But, it hath been  said, that
there lies not the same objection against his  next of kin,
provided he be not his heir ;(e) for it is his interest to pre-
serve the lunatic's  life, in order to increase the personal
estate, by savings which  he or his family may hereafter
be entitled to enjoy.(/)
   But this rule of not appointing the next of kin(g) entit-
led to the estate in remainder to be committee of the estate,
has not of late years been adhered to.
   The distinction upon which, in the cases referred  to in
the margin, that rule was considered not applicable to the
next of kin, from their interest in the probable increase of
the personal estate during the life of the lunatic, is not sat-
isfactory.  To those upon whom the suspicion, which was
the foundation of that rule, could attach, immediate gain is
a stronger temptation than the hope of future advantage,
subject to disappointment, not only  by the casualties of
life, but also, where the state of the  lunatic admits it,  by
the liberal application of his income far maintenance.
   The heir at law is generally made th'e manager or com-
mittee of the estate,  it being clearly his interest, by good
management,  to keep it in condition :  accountable,  how-
ever to the court of chancery,  and to the non compos him-
self if he recovers; or otherwise to his  administrators»(/i)
   If the chancellor acts improperly,  in granting such cus-
todies, the complaint lies to the king in council.(i)
   The statute (A;)  which gave  the guardianship of ideots'
lands to  the Tting, on his finding them  maintenance out  of
                              (h)  1 B. Com. 301
                              (i) 3 P. W.108. B-. 267.
                              (fr)  17 Ed. II. st. 1. i. 9.
(e) 3 Brown, 510.
(/) 2 P. W. 544. 638. 1 P. W. 262.
(g) 7 Ves. 591.-1802. 
44
THE COMMITTEES.
the profits,extended not to copyhold lands,for the prejudice
that would thereby accrue to the lord; but yet all aliena-
tions made by an ideot of his copyhold lands,  after office
found, may be avoided by the king.(J)
   And it hath been holden,  that  though the king cannot
have the custody of an ideot or lunatic copyholder,  on
this account, yet the lord of  a manor de communi jure (m)
hath not the custody of the lunatic's lands,  but there must
be a special custom to warrant it.(n)
   But it has been resolved  that the lord shall have the
custody of one mutus et surdus, without  alleging  any cus-
tom ; for otherwise he  would be prejudiced  in  his rents
and services, which reason extends as well where there is
no custom as where there is ; and  the same reason  seems
to apply to a lunatic.(o)
   Although the king hath the sole direction of these cases,
yet a private person may confine  a friend  who is insane ;
and  bind and beat him in such a manner as such unhappy
cases often require.^?)
   So power is given by statute to the magistrates to confine
vagrants insane.  12 Anne, c. 23. rep.  by  13 G.  II. c. 24.
and finally repealed by 17 G. II. c. 25.   But see postea.
   The custody  of a lunatic  may be granted to a feme
covert,(<7) though she be not  sui juris, but under power of
her husband;  and where  it  was granted to husband and
wife, she being next of kin, and died, the husband's right
determined: for the grant was joint, and a mere authority
without interest.(r) (1735.)
   A trustee under a will may continue  the person  of the
lunatic in the same custody,  as he found him in, unless he
discover acts of cruelty and oppression,  want of necessa-
ries, &c  and he may  retain  the  profits  of  an estate  for
   (0 4 Co. 126. Co. Cop. 152. 3 Ba.    (o) Cro. Ja. 105. Eversand Skinner
Abr.  532.                       (ft) 2 Holl. Abr. 546.
   (m) Noy 27. Hob. 215.            (q) 3 P. W. Ill n.
   (n) Lutw. 373.                  (r) Ca. Eq. Talb. c.143. WyattPrac. 
THE COMMITTEES.
45
persons to whom they were devised over in the contingen-
cy of an intermediate person being lunatic, if he prove to
be so : (.?)  and if any connivance  be proved to keep  him
out of his estate, by setting up his lunacy, and he be not so,
costs of suit will be ordered.
  A devise by will of the custody of a lunatic, niece to one
who was no relation, is absolutely void: the father himself
could not make such a will,(i)  though he might dispose of
the guardianship of  his child during minority; yet, after
twenty-one years of age, he has no such power.
  The same person may be committee of the person and
of the estate, except  the heir at  law, to whom  the court
never commits his person, (u)
   In selecting the  proper persons to fill  these offices, the
prudent caution of the court has generally been guided by
the principle of uniting interest with duty, as  already stat-
ed :(x) and if there is any strong aversion, however ground-
less, in the disordered mind of the lunatic, against a party
proposed as committee of his person, this will be regarded
by the court, whose endeavours are to make these unfor-
tunate people  as easy as possible.
   The court never grants the custody of the person to two
committees,(t/) for this  has been found  to occasion  suits
and expence:  but there is  no objection to any one who
will have a share  in the personal estate.
   A person named committee by the court,(z) suffered the
lunatic to dwell with the committee of his estate,  who was
his uncle, during thirty-two years.—On a petition from one
of the next of kin  to remove him, and to lessen  his allow-
ance, the  court refused  both,  declaring  that the uncle,
from the length of time, in which he had shewn  him the
utmost tenderness, was the properest guardian ;  that the
Reg. 56. Forester, 143.             (x) 2 P. W. 637. 6 Ves. 427.
  (») Barnard. 359.                (y) Ibid. 638.
  (0 2 P. W. 638.                (?) 2 P. W. 263. 3 P. W. 108—110
  (w) 3 Brown, 510. 2  P. W. 638. 
46
THE COMMITTEES.
allowance contributed  to his comfort; and that he  had
long been in that unhappy condition.   Yet in the eye of the
law a lunatic is never to be looked upon as desperate, but
always at least in a possibility of recovering; and then the
benefit and comfort to be guarded by the court, where no
creditor complains, are for  his benefit, nor for any next of
kin, all of whom he may survive.
  The bankruptcy of  the committee of the  lunatic's  per-
son is a sufficient cause for his removal from the  manage-
ment of the friend destined  for his maintenance.(a) But the
mere custody  of the person will not be changed if the mas-
ter find that, for the  comfort of the lunatic, it should be
continued.
  Although it is unusual  for a  brother to petition to be
committee, and that a receiver be appointed for the  estate,
on the refusal of the  heir at law, who, with the brother, is
the only next  of kin, and not able to give the requisite se-
curity ; yet the court  has  appointed the brother commit-
tee of person  and estate,  with  restriction not to receive ;
and referred it to the master to appoint  a receiver, to ac-
count and pay to the accountant-general, after the  neces-
sary maintenance.(fe)
  This guardianship shall  not be committed to any  that
will make gain of it, or who is concerned to outlive  the lu-
natic, as  being nearest of blood, and entitled to the admin-
istration  • and the allowance must be liberal and honour-
able for  his maintenance ;(c) but there  is no instance of
any allowance to the committee for his trouble.
  And the  choice of the court as to the committee  of the
person is generally influenced by the sex of the party, as
well as by other circumstances.(d)
  The next of kin and  expectants are not to be COnsider-

  Ca) 2 Ves. iun. 2. Wyatt, P. R. 276.    (c) 2 Fon. Eq. 244. 10 Ves. 104.
  (6) Arab. i04.                  (rf) 2 P. W. 635. 1 Fon. Eq. 59. 
THE COMMITTEES.
47
ed, but the  lunatic is to have every comfort which his
circumstances will admit.'e)
   If the lunatic be a married man, his wife must have the
commitment of his person, and an allowance suitable to
his estate  and rank.   His estate must be  accounted for;
and  if he die without issue, a moiety goes to her as is usu-
al.(/)
   The grant to a committee does not extend to his execu-
tors  or administrators; nor is it assignable.(g)
   And if a wife be  insane,(/i)  and her husband has the
care of her, the court, in making account of dividends of
her separate estate, as directed against  the husband, will
order due consideration to be had of his extra expence of
maintaining her.
   By the custom  prevalent  in the province of York, be-
fore the statute of 12 Car. II. c. 24.(i) for abolishing the
court of ward and liveries, and  for appointing guardians
by  will, &x. a tutor might be assigned to  a child unborn,
as also to an ideot or lunatic.  But this  statute gives no
power to the father to appoint  a guardian to his child, be-
ing ideot or lunatic, after he  shall be twenty-one years of
agc(fe)  Therefore although the father be  within that age,
yet  he may grant  the custody of his child, but cannot de-
mise or devise his land in trust for him directly; but he
may do it  obliquely ;(/) for by appointing the  custody, the
land follows as an incident given by the law to attend it.(m)
   A will or appointment made solely upon this  act, need
not be proved in the spiritual  court; for the  appointment
being by statute, the temporal courts shall  be  judges of it,
and  the  words of such appointment may  be, " I commit
" my children to the power of A. B."—or, " I leave  them
•' in  his hands.  I leave them to his government, regimen,

  (e) 1 Ves.  jun. 297. 2 P. W. 262-     (t) Swin. 212.
  f/)lP.W.702.                (*) S,-ct. 8. 9.
  (i) 1 Vern. 9                   (0 V:.-. 128. s Mod. 24.
  (h) 4 Brown, 409. (1793)          (in) 1 Vent. 207. 
48
THE COMMITTEES.
" administration, &c."(n)  Under this  appointment, the ec-
clesiastical court cannot intermeddle with the body.(o)
  But this guardian takes place of all others, and being
made after the model of a socage guardian, and coming in
place of the father, hath not a bare authority, but an inter-
est joined with his trust''/?) as necessary to the performance
of it, but  not an interest for himself.   He can only lease
at will, and not for years, for he is  himself only tenant  at
will. (9)
  A defendant having become impaired in his mind, after
the decree, a guardian was appointed for him,  by whom
he might produce books, &c.(r) (1756)
  And where the committee was one of the plaintiffs  in
a suit with the lunatic, the court referred it to the master
to appoint a guardian to answer and defend.(s)
  The court will not appoint a  master in chancery com-
mittee,^) on the score of public policy.  He would prob-
ably have to pass his own accounts.  Upon the  fair influ-
ence that the character of one master in matters of account
would have upon the mind and judgment of another mas-
ter, the conclusion must be, that the appointment of them,
as  receivers and committees, a situation in which  third
persons are to enter into conflict with them, never could
obtain a satisfactory administration of justice.
  Though private persons may put them in the character of
executors, the  property of suitors is not  by  the judgment
of this court to be put into the hands of its officers.
  The office of committee of  the person is given for the
sake not  of the committee, but of the  lunatic ; and the al-
lowance is to be given for the purpose of attaching him  to
the lunatic ; therefore where it  appeared that the person
proposed had engaged to give to  another 3-4ths of the sav-
  (n) Swin. 216.                Burn. Ec. L. 89. et seq.
  (o) 3 Keb. 834.                  (r) 1 Dickens, 286.
  (/>) Vau. 181. 3. 2 P. W. 123.        (s) Ibid. 187.
  (?) Cro. F.I. 678.734. 8 Mod. 312. 4   (t) 6 Ves. 427.(1807) 
THE PRINCIPLE THEREOF.
49
ings of the profits, it was reason why the court would not
appoint him.(w)
  In the reign of Hen. VIII.,(x) Dr. Pace, dean of the ca-
thedral  church of St.  Paul, London, becoming a lunatic,
was retained in the  custody of the archbishop^ of Canter-
bury, and this was established  in the court of wards, since
abolished, upon precedents shewn, in preference to the
crown.(y)

           Section II.  The Principle  thereof.

  What lord Hardwicke said on a different subject well ap-
plies to  the case of any trustee, and particularly to that of
a committee.  By accepting of a trust of this sort, a person
is obliged to execute  it with fidelity and reasonable diso-
bedience ; his  omission of his duty is his own default, and
he  must bear such a proportion as is  suitable  to the loss
arising  from his particular neglect.—A court of equity can
lay hold of every breach  of trust, let  the person be guilty
of it either in a public or private capacity.   The tribunals
of this kingdom are wisely formed, both of courts of law
and equity,  and so are the tribunals of most other nations;
and for this  reason there can be no injury, but there must
be  a remedy in all or some of them. (2)
  In general the court of chancery  looks  upon trusts as
honorary, and a burden upon the honour and conscience
of the person entrusted ; and not undertaken upon merce-
nary views.(a)
  Hence it is that no  allowance is ever made to them  for
their trouble ;  they are supposed to have regard for the lu-
natic and his family,  and  are often his relations, or at least
friends, who undertake the care upon charitable and affec-

  (m) Ibid. 428.
  (x) Dver.
  (y) Brydall, 112
(2) 2 Atk. 421.
(a) Ibid. 60. 
50
THE COMMITTEES.
donate motives; and the nearer is the relationship, so much
less is the ground for any such allowance.
  His next of kin have no power to consent, for it is the in-
terest of the lunatic which the court regards ; and though
they may be next of kin at the time,  yet he  may outlive
them, and his personal estate go  at his  death into other
hands.
   But if there be great trouble in managing the estates, he
may petition for an increase of maintenance, without any
report from the master, which will answer the purpose.(b)
   The  comfort and maintenance of the lunatic,(c) accord-
ing to the limits of his income, out of which a liberal allow-
ance is  made, is the first concern of the committee, who in
this respect may be esteemed the confidential agent of the
court;  and the imbecility of his charge  should  work a
principle in his mind of extraordinary fidelity in  the exe-
 cution of his trust.
   Some have considered him rather  as a bailiff than a
trustee, who, though entrusted with  a considerable confi-
 dence, cannot  injure  the estate as a trustee  could, who
 possesses the fee, and could  fraudulently grant it: still
 there are moral and legal obligations  upon him to which
 he is equally bound to adhere, in the fulfilment of a charge
 so responsible as this.
   For, he cannot change the nature of  the estate by con-
 verting money into land, or land into money ;  he cannot
 apply the produce for any sinister purposes ; nor  even for
 necessary repairs without a previous order ;(d) nor extend
 any part of the allowance for maintenance to any of the lu-
 natic's family or himself, in preference to the comforts suit-
 able to his condition and former station in  life,  as far as
 his fortune will admit; but he will be allowed  for mainte-
 nance  of the lunatic's  son :(e) and in every transaction the

   (b) Ambl. 78.  178.              Ul) 10 Ves. !04.  11 Ves. 398.
   (c) 1 Ves. jun. 296.  6 Ibid. 8      (e) 1 Vera. 263. 
THE PRINCIPLE THEREOF.
51
interest of the lunatic is to be his primary consideration,
to which all other interests in being, or in expectancy, are
to yield.
   If any part of the estate is liable to  forfeiture, or other
peculiar conditions, the committee is bound to protect  it a-
gainst those events; and if he has not power, he  is bound
to apply for power to the court.
   He is  chargeable for  supine  negligence;(/) yet the
proof must be very strong: if he  be robbed, the loss will
be allowed in his accounts, on proving it upon his own oath,
for he was to keep  it but as his own.(g)
   The power of the committee is very limited; and there-
fore, when any extra step is desirable, he should make
application to the  court: such as that of granting leases
and  raising money, cutting  timber, and the like.  Other-
wise he will be liable to the consequences of any adverse
application  against  him for exceeding his authority -,(h)
 and also to the consequences of leading others into a bad
 title :  it being a rule, which the court itself observes in its
 decrees, from which he is never to depart, not to vary or
 change the property of a lunatic so as to affect any altera-
 tion  as to the succession of it.(i)
    As  the  committee  of the estate is vested only  during
 pleasure, and  has no interest, he cannot grant  leases nor
 any ways incumber the estate  without a special order  of
 court, where the profits are  insufficient for the lunatic's
 maintenance; and can bring an  ejectment and trespass
 only in the lunatic's name.(/c)
    He cannot take up more  money on a mortgage  thento-
 fore made by the  lunatic while sane;(/) nor be  allowed
 for any  improvements and buildings  ordered by him the

    ( f) 1 Vern. 144.                (i) Amb. 81.
    (i) 2 Ch. Ca. 2. 3 Ves. 365. Jones   (it) 1 Vern. 262.2 Wife. l.:0. 2S*ii.
  on Bailments. Fun. Eq. 244.        125. Hob. 215 Hut. 16
    (A) 2 Wils. 130. 1 Vern. 262. 2 Atk    (0 1 Vein. 263
  407. 
52
THE COMMITTEES.
committee;  and the  heir will  be let into them.   But see
contra, 2 Atk. 414.
  The committee cannot present to a vacant benefice ; for
that right belongs to the great  seal, and was asserted by
lord Talbot.(m)
  He  cannot invest any surplus of the estate in lands,
even in the  lunatic's name.  This, though with good de-
sign, is an exceeding of his authority; and were the lunatic
insolvent at his death, this surplus should be applied in dis-
charge of his debts; and such lands, thus purchased, would
be liable notwithstanding the claims of the heirs at law. It is
provided by the statute, that any surplus should be safely
kept and delivered to him upon his recovery, or employed
for his soul if he die;  therefore now it  belongs, in that
event, to his next of kin, and any lands so purchased, would
be decreed  to be sold for their use.(n)
  But the  interest of a fund in  court(o)  belonging to the
husband, who was in a state of imbecility, was ordered to
be paid  to the wife for the maintenance  of the family.(/>)
(1792.)   And in  taking the account of a wife's separate
estate, she being a lunatic, regard will be had to the extra
expence.

           Section III.   The Security requisite.

   The court, in order to exercise due vigilance over their
agent, require, from  the committee or receiver of the es-
tate, the security of two responsible persons, in double the
sum at which the amount of  his  receipts may be compu-
ted.^)   And it is one of the duties of the attorney gener-
al, to whom this part of the matter is referred, to see that
they are proper persons, and their recognizance regularly
executed and filed with  the clerk of the custodies.
  (m) 1 Woodcson, 409.  3 Gw.  B.   (o) 4 Bro. Ch. Ca. 100.
Abr. 530.                       (p) lbi.1. 409.
  (n) 2 Vern. 292.                 (?) 3 P. W. 111. 
THE SECURITY.                  53
  The amount is settled upon a general state of the luna-
tic's property, of which an inventory is made out at the
time of executing the commission;  by which the attorney
general sees what the outstanding personal estate and rents
of the real  estate amount to ; and directs the amount of
the security accordingly.
  The  persons, two or more, proposed to  him as securi-
ties, must  be approved  by all the parties concerned, and
allowed by him to execute the usual bond.
  If any difficulty occurs  in providing this security, (for
though the committee proposed  and allowed may be the
most upright, yet his connexions  may not perhaps be com-
petent to  meet  so large a sum, as the outstanding estate,
when doubled, may require,) it may be prudent to procure
some of those who are indebted to the estate, to pay their
debts into court, on due notice  to  all parties.  This will
perhaps bring the amount within their power.
  It seems also reasonable that as the committee proceeds
to lessen the outstanding amount, by receiving and paying
it into court, or  applying it as directed, he and his co-secu-
rities should be relieved as to the amount of their bonds:
and on some particular circumstances the court will be in-
duced to  grant that  the bond  be delivered up, and fresh
securities taken.(r)   But the trouble and expence of such
applications on every occasion when the receipts are di-
minished, would be a charge upon the estate, not very just
or equitable, and  are therefore  discouraged but on very
particular cases.
  Even applications to  change the security, when greater
are  offered, are  not encouraged; for, though this may
have the appearance of benefit to the estate, yet it may be
of dangerous consequence: for if the bond were  deliver-
ed up, and there happen to be a concealment of any part
of the estate(s) on taking  the account, and the lunatic af-
{r) 2 Ves. sen. 673.
(«) 2 Ves. sen. 674. 
54
THE COMMITTEES.
terwards recover, he could have no remedy for that for the
time past; and it is too frequent that those accounts are
superficially taken, and it cannot always be otherwise.
  In passing his accounts the committee must state  what
sums he has had in his hands from time to time; and can-
not keep money without being  liable to interest; and if
he make considerable savings, he will be liable for interest
thereon, unless any particular circumstances can be shewn
that he did not use it;  for he ought to have made interest
of it.fe)
   And unless he pass  his accounts regularly  every year,
he will not be entitled to his  costs.(u)
   The king,  or the great seal, cannot  grant the custody
of a lunatic's estate without account;  but he may allow as
great  a salary for maintenance as the income of the estate
amounted to.(x)
   Where the profits were  allowed generally  to the com-
 mittee for the maintenance,^)  and he gave  security ac-
 cordingly, at the lunatic's death his next akin filed  a bill
 for relief; but the court held that it was the same as if they
 had granted an allowance  equal to the profits.  The order
 was pleaded and directed  to stand for an answer, and that
 unless gross fraud could be proved, no  relief could be ex-
 pected.  Sheldon v. Aland. J. 1731.
   The right and interest in  the profits, &x. of  an ideot's
 estate, has relation back to  the  time of the  office found,
 not from his birth: but the  office shall  relate back to his
 birth, so as to avoid all mesne acts done by him.   But of
 this hereafter.
   Land being held by an ideot, subject to services, or to
 mortgage, any person may make the  tender for him in
 respect of his absolute disability; and the law, in this case,
 is grounded upon charity, and so in like cases.(2)
   (0 1 Ves. iun. 156.               Cy) 3 P.W. .104
   00 Ibid. 2%.                   (2) Co. Lit. 206. b.
   (x)  3 P. W. 110. 3 Ba. Abr. 530. 
THE SECURITY.
55
  If a committee cannot be procured, a receiver may be
appointed, with a salary, upon giving the necessary securi-
ty as a committee, and the property may continue  in the
original trustees; it is  not material whether he is  called
committee or receiver.(a)   If this should become an estab-
lished rule of practice, it  will not be unfrequent for men
to refuse to become committee, to whom no compensation
for trouble is allowed, but some probable expence in extra
costs; and yet use influence enough to be  appointed  re-
ceiver, by which name they are to be allowed a salary or
commission, on receiving and paying.
   As soon as the committee has passed his  accounts, it is-
his duty to present a petition to the  lord chancellor,  for
leave to  pay into court,  the balance remaining  in  his
hands.   This petition is answered as of course; and an
order is drawn up thereon.
   All orders, as well as reports, ought to be filed with the
clerk of the custodies; those upon which the accountant
general is to act, are drawn  up by the principal register
of the court:  and this is procured by taking a duplicate
of the order from the secretary of lunatics,  one for the
register,  and the other for the clerk of the custodies: and
the master gives a duplicate of his reports for the same
purpose, one of  which is filed in the report office, and
the other with the clerk of the custodies.

          Section IV.  The Duties and Power.

   One  of the principal duties  of the committee  of the
estate,  is to take care  of  one rule of law, that neither the
property nor its succession suffer  any change, but  to act
always under the court's  direction, which has sometimes
 so ordered.(fe)
fa) 10 Ves. 622. (1805)
(6) Ambl. 80 
56
THE COMMITTEES.
   Where  a purchase  was made of real estate  with  the
 money of a person two years afterwards found by inqui-
 sition to have been a lunatic at the time  of the purchase,
 and it appeared that the  finding was carried too far,  by
 his incapacity having arisen from a distemper of apoplexy
 or palsy;  for he  should  have  been found incapable of
 managing his own affairs; evidence  was received by the
 court, that he  lived with his own family after the paralytic
 disorder, as well as before, and was assisted in the  manage-
 ment of his affairs by his only son and his steward, and at
 the time when the purchase was  depending rode out to in-
 spect the intended purchase: the purchase was maintain-
 ed, as it appeared to have  been a reasonable act.
   There are many instances of  apoplexy turning to para-
 lytic disorders, which may at first affect only the members
 and organs of the body;  and, by degrees, as  the weigh*
 of the distemper increases, may affect the memory" and
 understanding.  This act  was done  with the concurrence
 of his whole family, and it would be attended with numer-
 ous inconveniences,  if, in such  circumstances, the court
 should alter the property; he having one son, who must
 have been heir to the real  estate, if not otherwise disposed
 of, and entitled to  the  personal  if he died intestate;  and
 the court ought especially  to give the turn of the  scale in
 in favour of the heir.(c)
  Although the court will not order the personal estate of
 a lunatic to be turned into  real estate, yet there have been
 applications for leave to lay out part of the personal in re-
pairs and improvements ; and the court has allowed it, if
 the next of kin, who,  in case of the lunatic's death at that
time would be entitled to his personal estate, do not shew
any reason against it:  and such  an order has been bind-
ing upon other persons who were not consenting to the or-

        (c) 2 Atk. 413.  1742. Lord Hardwicke. 
THEIR DUTIES AND POWER.
57
der at the  time it was made, but happened to be the next
of kin at the time of his death.(d)
   Part of lord Anandale's property consisted of estates in
Scotland vested by parliament in lands there, during his mi-
nority.(e)   He became lunatic, after the  age  of twenty-
one years.   He  was found lunatic in England ; but there
was  no process of that sort in Scotland, and his steward
managed his estate  there as before.  It was of material
importance that all his property should be equally disposed
of for his maintenance, and that the savings should be fair-
ly applied ; and  therefore,  to effect this,  it was ordered
that it should be vested in the purchase of lands in a par-
ticular county in England, pursuant  to his ancestor's will.
The act only directed it to be laid  out there, during  his
minority, which  had expired.
   It was plausible enough, that the same reason arose from
 his insanity; but, on a very  different consideration :  the
 one might continue his whole life; the other several years,
 which the legislature saw would end by computation of time:
 the interest of the trust estate ought to overbalance,  and
therefore the court ordered the trustees to call it in, and the
 committee to sue in  the  lunatic's name, and the lunatic to
 execute a proxy, attested by the committee.
   As to the application  for money to be raised for his
 maintenance and personal debts ; between the produce of
 the two estates,  the  personal, in Scotland, at his death, be-
 ing subject to a different rule of distribution from that m
 England ; the trust money being part of the ancestor's es-
 tate,  and to be   laid out in England, was to be consider-
 ed  in chancery  as an estate in  England, and the interest
 from thence,  though  arising  out of an estate in Scotland,
 yet, as it  was a  mere transitory thing  arising on changea-
 ble securities, which might and ought to be called in, and

   Ee?AJnb,41480.  % V,, .en.  381.(1749). 
58
THE COMMITTEES.
was directed by the will to go as the profits of the land
when purchased ought, was necessarily considered as part
of his personal estate in England, to be so applied.  Any
other personal property he had in Scotland was considered
as personal property there.
   A proportion of maintenance and debts between the two
estates, was therefore ordered.
   Three thousand two hundred pounds produce of an her-
itable estate in Scotland, charged with incumbrances, sold
under the act abovementioned, was remitted to  England.
The act  did not  dictate how it should be  applied, leaving
that to the court of session of Scotland, had they found him
lunatic.  It was therefore ordered to be considered as part
of his real estate in Scotland, subject to all the incumbran-
ces, and to be applied in discharging them.
   In Grimstone's case,(/) (1772,) the custody of the estate
had been granted to the heir at law, and a receiver had
been appointed.  Mortgages paid out of the savings were
directed  to be assigned  to attend the inheritance.  Upon
the lunatic's death, the  next of kin petitioned for the per-
sonal estate,  and to  have the mortgages considered as
personal.
   The court declared the trustee, to whom the terms had
been assigned, to be deemed a trustee for  the next of kin,
to the extent of the mortgage and interest, and  an account
to be taken.
   Two points arose:
   1. Whether the order was right.
   2. If wrong,  that  the  great seal  had no jurisdiction to
vary it.
   As to 1.—In the management of a lunatic's estate, the
ruling principle is to do what is for the benefit of the lu-
natic.  To lay it down as a rule, that all the savings out of
the real estate  shall, in  all cases, go to the next of  kin, is
         (/) Ambl. 706. cited in 4 Brown, 238. 
THEIR DUTIES AND POWER
59
inverting the  principle: the court every  day orders the
savings to be  laid out in repairs, and to discharge incum-
brances on the real estate.  The case of an infant differs
from that of a lunatic, because  he can dispose of personal
sooner than he can of real estate ; and yet, in many cases,
the court will order money of an infant, to be laid out in
discharging incumbrances, and even in keeping up houses
and gardens.(g) It is frequent to order repairs out of rents
and profits.   If the mortgagee should  enter, the rents and
profits will be applied to the principal as well as to the in-
terest ;  and therefore why should  not the  court order this
application ?
   Lord Macclesfield,  in  Dormers case,(fe) ordered 200/.
per annum to be applied to  keep down debts : rents and
profits are the  fruits of the real estate; they differ very much
from other personal estate ; and it would be too hard upon
the  heir to impoverish the rent for the benefit of the  per-
sonal estate.   The case of an infant  is different: for an
infant has a personal interest to increase the personal fund,
which is sooner  subject  to his disposition  than the  real
estate;  and yet even in the case of infants  the court will
order repairs out  of the rents and profits.  The first order
was established.
   2.—As to the jurisdiction, whether  the court could vary
a former order,
   It was said, that acting in  matters of lunacy under a spe-
cial authority, the chancellor had no power over the es-
tate, except by the bond taken from  the  committee; and
when the lunatic is dead and the bond given  up, the pro-
ceedings must be by bill in chancery.
   When a person  is found  a  lunatic, the king alone can
grant the custody of him by sign manual;  and therefore
to save repeated applications, there is always a sign man-
ual to the chancellor on coming into office.  This warrani
(g) Amb. 708,
(A) 2 P. W. 262. 
60
THE COMMITTEES
is  a special authority to  make the grant, but extends no
farther;  and the grant  being toade, the chancellor then"
acts, not  under  the warrant, but  as keeper of the king's
conscience  in the exercise of this branch of prerogative.
If the warrant was granted to any officer of state, it would
not enable  that officer to act after the grant made, but
merely to direct the  grant:  all appeals, and  every exer-
cise of prerogative, must  be to the king in council.   Nei-
ther reason nor precedent warrant the position, that the
jurisdiction  ceases with the  death of the lunatic; as in 3
Atk. 308.—It is a principle not only as to lunatics but  in-
fants, that no part of their property during their incapaci-
ty, can be changed to the prejudice of  the successor: it
would not  only be  of prejudice to legal representatives,
but in case  of a will made before the lunacy, which is not
revoked thereby, if the personal estate should, during the
lunacy, De diminished, the legatees and even the creditor's
might suffer.  See the preceding case  of lord Anandale,
also Degge's case, 4 Brown 236. n. where the fine and char-
ges of renewal of a  freehold church lease for three lives,
 was paid by the committee, and  allowed in bis account df
 the personal estate by order, and  the  interest in  the new
 lease ordered to be personal estate if he should die in  his
 lunacy.
    Where the court had thought  fit to order at the instiga-
 tion of the next of kin and  committee to cut timber, the
 produce was invested in the funds, and  the question was,
 whether it was real or personal.(t)   The heir at law claim-
 ed this  produce  by the  same  right as if the timber had
 been  standing; as in Grimstone^s case,  and Tullit's case;
 (k. and where cut by order of court, this  claim was sub-
 stantiated  by lord Hardwicke, in lord Anandale's case.(/)
 In Bevan's case, lord Apsley(1771) ordered the produce to
 satisfy specialty debts.
   (i) 2 Brown, 510. Bromfield's case.  (l\ 2 Ves. 381.
   (k) Amb. 370. 
THEIR DUTIES AND POWER.
61
  Where timber is cut without order, the property never
changes; if cut by order, there is no  reason for changing
it on that account; unless a special order be made on cir-
cumstances ;  and all the cases do not shew what was done
with the  produce.
  For the next of kin it was contended, that  wherever it
had been done by order, the produce  had gone to the per-
sonal estate; but admitted that the court can  by decree
change the property,where it would be for the benefit of the
lunaticfm).  In the cases of Grimstone, Clarke, and Shelly,
the produce of timber went to the next of kin, by order,
or in the residue.
   In reply—No case decreed that the produce does not
continue in the nature of timber.  The lands by the stat-
ute are to be kept without waste, and in no wise to be alien-
ed :  the committee is a mere  bailiff, and by 2 Vern. 92.
personal laid out in land is to be considered personal, and
go to the next of kin, in case of intestacy, and to executors
if a will were made during sanity.  It is different respect-
 ing infants and lunatics ; as to infants, the crown is the
 general  guardian—but with respect to lunatics, it is a spe-
 cial authority : the case  of the lunatic  is therefore strong-
 er than  that of an infant, against altering the nature of the
 estate.
   Lord Thurlow—According to  the argument, the court
 can on no account apply the timber to the personal use of
 the lunatic,  so that it cannot apply  it to the  payment  of
 debts, or even to preserve him from a jail, and this because
 the statute has said  that their lands shall be kept" without
 waste or  destruction, and shall in no wise be ■aliened."(n)
 It is said that a  lunatic is reduced to the situation of a
 tenant for life.  I cannot assimilate in my mind, the situa-
 tion of  a lunatic with a mere tenant for life : the statute
(m) 2 Atk. 407. 412. Gilb. 10.
(n) 3 Brown, 514. 1792. 
62
THE COMMITTEES.
must be construed to mean that the lands shall be kept
without destruction,  in the same manner as the owner of
them would keep them if he were of sound mind:  if this
be the true construction of the statute, I cannot distinguish
between the case of a lunatic and  an infant.
  It is extremely clear, that at the  death of  the  lunatic,
this money  was part of his personal property : it would
have been considered as such upon a plea oiplene adminis-
iravit—it would have been so for the purpose of paying his
debts:—it seems difficult to say how the heir at law can
claim  it against his  personal  representative.   I doubt
whether he can  have any equity to recall it out of his
hands; he cannot do so on any ground but upon some
equity arising from its having been improperly converted
into personalty; and probably if a committee had wanton-
ly and of his own  head so converted it, the court might
have thought that  such a  fraudulent  management and
breach of confidence reposed in him, of the lunatic's prop-
erty, as to raise an equity for the heir at law.  Where a
stranger cut timber of a lunatic, the court thought, as there
was no breach of confidence, it was like the case of a wind-
fall, and that no equity arose to the heir at law.  I think
it impossible to say, that where the court has, for good and
substantial  reasons, thought proper to change the nature
of the property, I  have no conception that in such a case
any equity can arise  to the heir at law.   It is perfectly
indifferent which way it falls, and  therefore  he can have
no  equity to recall  it from the personal representative.
The court have thought  proper to change the property,
and they have done so, on reasons which exclude all hard-
ships from the case of the heir; at the same time, I think
that the court  ought to act with great care, and only in
urgent occasions.   Left  undecided.(o)  The register's
note is, that the  timber having been cut down by order of
(o) 3 Bro- S15. 
THEIR DUTIES AND POWER.
63
court, and for convenience of the lunatic, it was severed and
and became personal estate ; and dismissed the petition:
recommending a bill.(p)
   The question here left  undecided was afterwards, in
 1793, more fully argued, upon a bill filed after the death
of the lunatic, by his heir at law, sir Henry Oxenden, against
lord Compton, his personal representatives: on which lord
chancellor Loughborough gave judgment  in favour of the
next of kin, that the produce of timber, felled on a lunatic's
estate by the committee under an order of court, is person-
 al  estate.
   The question of changing the property was  fully con-
 sidered in the judgment then  given for a new trial^)—
 there being no equity.—1793.
   The committee may exercise the same power in regard
 to cutting timber for repairs,  as any discreet person who
 was the owner of it might do ; and therefore, where money
 had been laid out from the personal estate in the purchase
 of timber to repair barns on the real estate, it was order-
 ed to be made good ;(r) for it appeared, that this had been
 done merely with regard to the committee's own interest
 in the reversion, while there was on the estate timber pro-
 per for the purpose.
    If timber be cut on the lunatic's estate, whether by  or-
 der of court or by the committee, and afterwards approved
 by the court, the rule has  been not to change the proper-
 ty if any surplus remain,  but to pay it to the heir at law.
 The principle of all the cases is, that where the property
 of the lunatic is concerned,  the court will not permit a
 wanton change of  the  circumstances  of that  property to
 change the rights of his  representatives after  his death;
 but the court will support the committee in doing it, where it
 is manifestly for  the lunatic's benefit.
   (/») 2 Dickens, 762.              3 Bro. Ch. Ca. 510. (1792.)  Ex parte
   (9) 4 Bro. 231.2 V-s jun. 71.      Bromfield.
   (r) 2 Atk. 407. Ex part* L«dlow. 
64
THE COMMITTEES.
   The general rule is, that the estate of the lunatic is not to
 be altered, with this qualification, that, that rule  must be
 properly understood that the real principle in managing a
 lunatic's estate is to do what is for his benefit; that if in all
 cases, all the savings of the real  should go to the next of
 kin, it would invert the principle that the court every day
 lays down, that those savings should be invested in repairs,
 and in discharging incumbrances on the real estate :—and
 if it were necessary to increase  his allowance, the court
 would cut  down timber not  decaying,  if  it would render
 his state more comfortable.
   The statute deprarogativa  regis directs that the property
 shall be kept without waste, and the residue beyond main-
 tenance shall be kept for the use of the lunatic, and be de-
 livered  to him when of right mind, so that it shall in no wise
 be aliened, &c.(s)   It is not  possible to assimilate the case
 of a lunatic, tenant in fee, to that of tenant for life, impeach-
 able for waste; for the latter has no property in the  tim-
 ber at all;  and  therefore, waste by him, has a different
 construction  from  that waste mentioned  in this statute,
 which only means without destruction, and does not hinder
 the committee, under the authority  of the king, from mak-
 ing use of those opportunities which the property of the lu-
 natic would enable him, if in possession of his  senses, to
 make use of, to  deliver himself personally from any pres-
sing urgency.
  It is said in Grinutone's case, that the court  has  more
 power over the  personal,  than the real property of luna-
tics;  and that the authority of the  court does not go to
touch any part of the  inheritance,  or to diminish it,  be-
cause it is to be kept without waste or alienation.  It is
clear in estimation of law, that at the death of the lunatic
this money is part of his personal property.
(s) 17 Ed. II. c. 9,10. 
THEIR DUTIES AND POWER.
65
  Where a committee, or guardian, has abused his trust,
with a view of changing the quality of the estate,  to serve
his own interest, there arises an equity to undo the tortious
act; but there is no rule of equity upon a less ground than
that.  Perhaps the court, where guardians or committees
have, without order, taken upon themselves to change the
property, will, particularly where there is a cause in court,
consider it as a matter of fraudulent management, for that
is the ground upon which the court must proceed.  If it be
cut down tortiously, it would be like the case of windfalls,
and ought not to be restored by equity.
  Considering it so, it is  impossible where the court, tak-
ing those precautions it always does, and ought to take,
not to do  it  idly  or  unnecessarily, but  for the benefit of
the lunatic or infant, thinks proper to cut timber,  and con-
vert  it, to  conceive an  equity to change the condition of
that when become personal, and to replace it for  the heir;
for it is  truly said, that being done for the benefit of the
infant, it becomes indifferent whether it is for the benefit
of the heir, or personal  representative afterwards; and it
cannot  be recalled  in either case : and as the  cases are
quoted, particularly that before lord Bathurst, they have
gone upon that idea, that where it is found to contribute to
the interest of the party to make the change, that has been
thought such a good  reason for it, as  to exclude all consid-
erations of  hardship, or  an  equity  between  representa-
tives.^)  Lord Thurlow.
   The same doctrine was recognized  in the following year;
(u) and as the reasoning was equally important, I  cannot
 refrain inserting it also at length.
   There is no equity between real and personal represen-
tatives ;(*) each must take what they find at the decease
 of the  person entitled  for life; in the condition in which
  frt 1 Ves. jun. 462.-1792.         (*) Oxenden and Compton, 2 Ves
  (u)1793-  •                 jun. 71. 4 Brown, 231.
                      10 
66
THE COMMITTEES.
they find  it.   The  heir  at  law cannot be entitled to the
produce of decaying  timber, against the personal repre-
sentative, for in that case  he would receive a profit he nev-
er would  have received, if  the estate  had continued un-
touched :  besides, that in all  probability he is, as  posses-
sor of the real, in possession of a benefit, in consequence
of cutting the  timber, by the improvement made thereby
in what was left; for it might be annually deteriorating,
and the growing timber lessening in value, so that  the es-
tate, but for this, would have been  in a much worse con-
dition, and the value of the timber would have been anni-
hilated.
   The stat. deprer regis(y) does not commit the care of a
lunatic's estate to the court of chancery, but to the crown;
(z) it is not  introductive of any new right of the crown;
the better opinion inclines that way, and the words of the
statute put it past all doubt;  its object was to regulate and
define the prerogative, and to restrain the abuse of treat-
ing the estates of lunatics as  the estates of ideots.  The
words " waste and destruction" are to be understood in the
ordinary,  not  in  the  technical sense of waste: there are
cases in which to cut timber upon the estate of a  lunatic
would be no waste ; where it makes part of the rental, not
merely where it is necessary for his sustenance; but if it
is part of  the  general rental, there  is no doubt that it is
the duty of the administrator to continue the usual man-
agement of the  estate, and  that which is suited to  its cir-
cumstances.  Where  there  are valuable woods of  full-
grown timber, fit for the navy, part of which the  owner
had been accustomed to cut, it would be a breach of duty
in those who would  have the administration of it, in case
of lunacy, not to  manage it in the same manner in  which
it  had been managed before, and as he would have man-
(tf) .7 EJ. II. c. 10.
(2) Amb. 707. 
THEIR DUTIES AND POWER.
67
aged it himself, if capable.  Thus the case of lunacy dif-
fers from that of  a tenant for life, where this could not be
done in any ordinary course of disposition.
  The course of the statute  has been, that the  king has
committed this care to a certain great officer of the crown,
not of necessity the person who has custody  of  the  great
seal, though it generally attends him, by  warrant under
the sign manual, which confers no jurisdiction, but  only a
power of administration, from whom an appeal lies to the
king in council (a)
  The general object of attention of the managers, is sole-
ly the interest of the  lunatic himself; and with regard  to
the management of the estate, solely the interest  of the
owner, without looking  to the  interests of those  who,
upon  his death,  £may  have "eventual rights of succes-
sion;  and   nothing  could be more dangerous or mis-
chievous than for him to consider how it would affect the
successors.
  There will always be an emulation of each other; and
their speculations, if  the  administrator was to  engage  in
them, would mislead  his attention, and confine  his obser-
vation as to the interest of the only person he is bound to
take care of.  The next of kin would contend for a short
allowance;  the heir would have no interest to contend for
a small allowance out of the rents and profits, but might
have an emulation  against the next  of kin, and therefore
when the next of kin would contend for a small allowance,
the heir would insist on a large one : Therefore the court
have  always shut  out  of their  view all consideration of
eventful interests, and considered only the immediate  in-
terest of the person under their care; there would else  be
a constant running account between  the personal and real
estate.
(«) 3 P. W. 108. 
68                 THE COMMITTEES.
    There are many cases wherein it is necessary to apply
 personal to purposes relating to real estate; as in repairs,
 &c.  If it were necessary for the real to bring an action
 of trespass, which might run into great expence, if that was
 not to be paid out of the personal, a great injury might be
 sustained; and there is no instance of a charge  in a re-
 ceiver's accounts of what has been expended upon  one es-
 tate, in order to charge it for the other.
    If the chancellor was constantly looking to the right and
 left, and weighing the probable interests of the representa-
 tives, the interest of the lunatic would be committed in fa-
 vour of those who have no immediate interest, and whose
 contingent interests are left to the ordinary course of e-
 vents ; therefore he is to  administer the  estate tanquam bo-
 nus paterfamilias, making any advantage fairly to increase
 and improve it, without engaging in risks  and  dangerous
 adventures, for those are not fit enterprises.
   But whatever tends towards ordinary improvement, it is
 strictly the duty of the  administrator to do, considering
 only the immediate interest  of the proprietor of the es-
 tate : but care must be  taken  that nothing extraordinary is
 to be attempted, or estate to  be bought  or  interests to be
 disposed of.   Any  alteration of property is as far as possi-
 ble to be avoided, consistently with the idea of preserving
 the interest of the proprietor:  payment of debts is so much
 for his interest, and such pressing cases might be put, that
 the chancellor would order the application of personal to
 any extent, as in Grimstone's case.(i)   Thus it may be for
 the advantage of the estate, and of the lunatic, to fell tim-
 ber ; the real estate is not detrimented, but ameliorated ;
and the fund of the personal is increased by something a-
rising out  of the real estate, the fair fruit of the real  come
to maturity, which if not then  gathered would be lost.
(6) Amb. 706. ante. 
THEIR DUTIES AND POWER.
69
   It was said upon the reasoning in Beverley's case,(c) that
 the power of a  committee is like the power of a bailiff:
 suppose it cannot be  raised higher : if a bailiff had cut
 timber without any authority, which would be very wrong
 conduct in a bailiff, and before it  was converted into mo-
 ney the party die, there could be no doubt it would  be
 personal assets :  the heir could have no action  against the
 personal representative :  and though the bailiff might  be
 answerable for his misconduct, there is no equity between
 the representatives upon the subject, (d)
   But the court alters the property,  if the interest of the
 lunatic requires it.(e)   Money may be laid out in improve-
 ments, in draining, inclosures, renewals attending landed
.estates, fines of copyholds, for non-payment of which the
 estate would be forfeited : mortgaged debts of the ances-
 tor, or of the lunatic, are to be discharged without distinc-
 tion.   In all these cases the court makes an  election for
 the lunatic,, as he  would have done if in his senses.
   Thus the  rule  is  settled, that the benefit of  the lunatic
 only  is  to be considered, not that of representatives; but
 that what is done  with  that view must  be done with great
 temper, and  not if uncalled for (that must be the qualifi-
 cation) and that neither party can have any foundation of
 equity to call upon the  other to account for what the other
 has received.
   The  subject of reference in  the case of the marquis
 of Anandale, (1751) before lord Hardwicke, was, not wheth-
 er it would be for the  benefit of the  lunatic, but of the
 trust estate, to call in personal property from Scotland :(f)
 the interest of the lunatic was then almost a nullity; be-
 cause, either way, it paid for his maintenance ;  but the
 int rest which moved, was the difficulty it would be attend-
 ed with to the successor; and in the result of  the case  it

  (c) 4 Co. 123.                   (<?) 2 Atk. 412.
  (</) 2 Ves.jun. 74. 176. 261. 271.     (/) 2 Ves. sen. 381. 
70                 THE COMMITTEES.
was clear that lord Hardwicke's determination took a hne,
to do that which ought to be done with regard to his situ-
ation as a lunatic, without any regard to the contingent in-
terests of those who  probably would  some time or other
be his representatives, (g)
   On the same principle it is determined both at law and
ki equity, that where there is a confusion of rights,  a debt-
or and creditor  in the same person, there is an immediate
merger; but it is true in equity, though there may be that,
which, if all was reduced to a legal right, would of neces-
sity operate as a merger, a court of equity acting upon the
trust, will, on the intent express or  implied, preserve them
distinct; and that confusion of  rights will not take place ;
as in  case of infants entitled to an  estate, and to a charge
upon it, the rights remain distinct, because more beneficial.
But, in  cases of lunacy, the representative must take his
interest as fortune has directed it, and has no equity to va-
ry it; therefore if a lunatic die  entitled to an estate, and
also to a charge upon  it, it is merged, and the heir takes
the estate discharged :(h) a tmst term having been raised
to secure the charge, does not alter the matter, for that re-
mains inert, for the trustees have no discretion, unless re-
quired to act for the purposes of the trust.(i)
   By marriage, settlement  a  sum  was  to  be raised for
younger children, and a further sum for them out of a fur-
ther estate to be purchased :(k)  the testator  died, leaving
a  son and  daughter—the son  became lunatic, and  the
daughter never received either sum, though the estate was
purchased;  the daughter died  unmarried  and intestate,
leaving the lunatic  her brother, and  only next of kin :
the lunatic  died, and his next of kin and heirs were the
same persons.

  (g) 2 Vet. sen. 77.               (i) Ibid. 261. 1793.
  (A)  Woodf. Ten. Law, 185.  Hob.   (fc) 4 Bro.  397. Ambl. 601. 2 Ves.
215. Hut.  16.1 Wils, 130.          jun. 261. S. C. 
THEIR DUTIES AND POWER.
71
  Held—this became a charge upou the lunatic's estate
falling in to  him as  representative of his  sister:  where
there is an union of rights, neither of them  can be execu-
ted at law, but  the court of chancery will  preserve them
distinct, if the intention so to do is either expressed or im-
plied.   Between an absolute, mere real  and personal rep-
resentative, no equity can arise.(/)
  The bill filed by the representatives  of the lunatic and
the sister against the committee was dismissed as to  both
sums.
  So a bill was filed by a son, to set  aside a settlement
made by his father, a lunatic—the court refused to let the
house be demised, or the furniture to  be  sold, and the
produce brought into  court, as the plaintiff did not consent,
(m) Colman v.  Croker.
  If a legacy be given to put a  person into holy orders,
and he become lunatic, it may be applied by  the commit-
tee for his benefit in some  other  way,  as  in  cases of
infants.(n)
  Coal being found  upon the estate, which was charged
with  mortgage  debts, the committee was allowed  to work
the coal ;(o) the next of kin had an interest, the heir at law
had no interest—it was deemed like cutting timber.
  The general rule is, as to application of the  property,
the committee will  not be allowed for any monies expend-
ed, without previous  order of court, in repairs or improve-
ments ;(/>) though this rule was once relaxed,in a case which
appeared  fair and  reasonable, and lately (1805) where the
next of kin undertook to take a part of it upon themselves.(g)
   The lord chancellor cannot upon petition order part of
the real estate to  be  sold for the payment of debts, in or-
der to prevent the creditors filing a bill.   Ex parte Smith.(r)

  ([) Woodfall's Ten. Law, 185.        (/>) 11 Ves. 398.
  (»i) 1 Ves. jun. 160.              (o) 10 Ves. 104. 6 lb. 799.
  (n) 1 V.tii. 255. 5 Ves. 463.        (r) 5 Ves. jut).  556.
  (o) 6 Ves. 128. (1801.) 
72
THE COMMITTEES.
  Nor can he make a title by an order to sell leasehold es-
tate for the same purpose; for he cannot make a lease abso-
lute, but only during the lunacy.(s) Lord Thurlow refused
this for fourteen years  together: for the tenant may be
ejected by  the lunatic if  he  recover: but he can order
the application of personal estate to pay debts, as far as
it will go, with rents of the leasehold estate.   He cannot
direct  creditors to take the leasehold  estate in execution :
but if they will, he cannot restrain them.   There is no
instance  of putting the lunatic in a state of absolute want.
  The committee may bring an ejectment, but it must be
in  the lunatic's name;(f)  for the committee being only as
bailiff, he cannot make leases of land, or take up money
on mortgage.(u)
  And where in the service of the declaration, the tenant
being a lunatic, and living with C. who transacted all his
business, and would not admit access to him; upon an
affidavit of this fact, and of having delivered it to C. the
court made a rule for  the  lunatic and C. to shew cause
why that should  not be good  service and that service
of the  rule on C. should be good also.'a;)
  The committee cannot grant copyhold estates, but he
himself may do so by his steward ; the reason is that  the
committee has no estate in himself, [y)
 (#) 8 Ves. 80. (1803).              (*) Sell. Prac. 174. Bar. 190. Wood-
 (*) Hob. 215. Hut. 16. 2 Wils. 130. fall 466.
 to) l Vern. 263.                 (y) Leon. 47. 
[  73  ]
                    CHAP.  VIII.


              RECOVERY OF THE LUNATIC.

 IN case the lunatic recovers his senses, he must petition
the chancellor to supersede the commission :(a)  upon the
hearing of which he  should attend in person that he may
be  inspected by the  chancellor: and it is also  usual for
the physician to attend, or to  make an affidavit  that he is
perfectly recovered.
  But where a lunatic moved that he might be  examined
and make a settlement  of his estate, the court sent him
to the common pleas  to  pass  a  fine,  where he would be
examined and the issue  might be tried.(6)
  A lunatic is never  to be looked upon as irrecoverable ;
his  comfort  is to be regarded, and not that of any repre-
sentatives ; and upon  this principle hang all the  determin-
ations of the courts,  respecting  the person  and estate of
the lunatic.(c)  It affords the  most satisfactory reflection,
while the mind is sane, to  know that if it should ever be
visited by this worst of  all afflictions, not only the power
and authority of the  crown itself, but the grave wisdom
of the courts of judicature,  are  immediately  open for
the protection of his person and property, upon principles
of the greatest humanity and caution, to  watch over the
periods of imbecility, to provide for their necessities, and
to render an account  when the affliction shall be  removed,
with as scrupulous an  exactness as  the most anxious friend
could be expected to do,  and with as strong a sense of this
obligatory duty as the most correct trustee.
  (a) 1 Fon. Eq. 65.               (c) 2 P.  W. 265. 3 P. W. 104,
  (*) 1 Vera. 155.
                     11 
74
RECOVERY OF THE LUNATIC
  A party born deaf and dumb, attaining twenty-one years
of age, having given sensible answers in writing to written
interrogatories,  lord  Hardwicke  directed the possession
of the  real estate and  assignment of the  personal to the
party.(d)   1754.
fd) 1 Pickens, 268. 
[  75   ]
                     CHAP.  IX

                DEATH OF THE LUNATIC.

J.F an ideot or  lunatic die before office found, the power
ceases, and no inquisition can be taken; for the commis-
sioners are to judge and report the lunacy upon inspection,
and the king can take no interest after his death, for his
property vests in others, fa)
   But if an ideot  die after office  found,  which vests the
king,  he seizes the lands,  because he must render them to
the heirs.(fe)
   If a lunatic die, the order of reference to the master does
not abate ;(c) and any party may prosecute it and take out
nis report; and the chancellor  may  make out an order
thereon, (d)
   If the proceedings under the  commission were to abate
by death, infinite would be the inconvenience, besides in-
jury to the survivoi s: the whole must be concluded, and
the court will shew the most  careful attention that every
part of this important trust, executed under its direction,
shall have been conducted with fidelity, as well to the par-
ties entitled to  the reversion, as to the unhappy object of
its care during his life-time.
   Upon his decease the heirs  at law and next of kin must
file their bill to have the  property transferred, the report
in the matter of lunacy  not being of sufficient authority
whereon to ground a decree ;(e) for the  lord chancellor
acts as a commissioner under  a signet, to take care of lu-
natics, and it is not of necessity that the great seal has that
appointment; it was once granted to  a lord high treaSUl'-

  ta) 4  Co. 428.                   (<") Ambl. 706.
  {b) Stam. Pr. Keg, c. 9. f. 34.       (c) 2 Dickens, 553.
  (c) 3  Bro. 238. 
76
DEATH OF THE LUNATIC.
er—it could not consequently be considered as a res judi-
cata.  Upon the hearing of this bill, the master will be de-
creed to enquire  who are the next  of kin and heirs  at
law, to advertise in the Gazette, and other papers, for them
to come in and  prove their affinity in time, and to  make
his  report.   (1779). 
[  77   ]
                     CHAP.  X.

                        COSTS.

    O costs are allowed to  relations of a lunatic  for their
attendance before the master, to check the accounts; al-
though notice is always given to them for that purpose, (a)
   Solicitors  employed  in  commissions of lunacy have a
lien for their costs  out of the fund of the lunatic's es-
tate ;(&) without being obliged to come under a commission
of bankrupt  against the heir who took out the commission
of  lunacy, committees  have  a  lien, and the courts have
extended  this lien, by ordering the  solicitor to stand in the
place of the  committee.(c)
   Costs were given against a grantee of a deed, fraudu-
lently obtained of a weak man, not lunatic, and against
the solicitor, who prepared it.(d)
   Courts  of  equity  have always exercised a discretion in
giving costs—not upon any  authority  founded on argu-
ments drawn from cases at common law, and the old  acts
St. Marlb.  52. Hen. III. &,c.  but from  conscience  and
arbitrio boni viri as to the  statute on one side or other, on
account of vexation, &c.(e)
   Where the persons having the custody of the lunatic do
not produce him upon  art order obtained, the  court will
decree costs against them.(/)
    It may not be unseasonable to suggest a proper vigilance
against the prevailing practice of allowing very  high costs
 in these cases; as soon as fair  compensation is  made for
 needful  disbursements  and skilful attention,  every  care
K
(a) 2 Ves. 25. Pr. Reg. 152.
{b) 2 Ves. sen. 407.
(c) Amb. 103, 1750.
(J) 3 Alk. 327.
(e) 3 Atk. 552.
f f) 2 Ves. 405. 
78
COSTS.
should be taken to avoid the increased  aggravation to a
family, already distressed by such a visitation as lunacy,
of diminishing their resources of comfort.
  Costs were given against  a stranger for  an hasty tra*
verse of an inquisition.(g)
(g) 6 Ves. 580. 
[  79  ]
                     CHAP.  XI.

                 DISABILITIES INCURRED.

 JL HERE is a general disability to perform legal acts in-
 cidental to the unhappy situation of an ideot or lunatic ;
 their incapacity is obvious; but it is necessary the effects
 of it in many cases should be considered as they have oc-
 curred in the  administration of justice.
   I have  endeavoured to compress them under the follow-
 ing heads:
   1.  Attornment.
   2.  Presentation.
   3.  Marriage.
   4.  Copyholds.
   5.  Testimony.
   6.  Actions and Suits.
   7.  Wills.
   8.  Trusteeships.
   9.  Contracts by Deeds, &c. per pais.
  10.  Fines and Recoveries.

                Sect.  I.  Attornment.

   A man deaf and dumb, and yet having understanding,
may  attorn by signs ;(a) but one that is non compos cannot
attorn, for he has no understanding, and cannot agree to
the grant.(6)
   Re-entry may nevertheless subject  one to  distress and
action of waste, who of himself could not attorn ; for if a
man, non compos, be lessee for years rendering  rent, and
the lessor eject him, and make a feoffment, and afterwards
  (a) 26 Ed. IB. c 63.
  lb) 18 Ed. UI. c. S3. Co. Lit. 315. a. 6 Co. 59. 
80
DISABILITIES INCURRED.
the lessee re-enter,  his  liability must attach, although he
was incapable of an attornment, for the re-entry revests all
interests and estates.(c)

                Sect.  II.   Presentation.

  A lunatic cannot present to a church, nor his commit-
tee :(d) for where a lunatic is seized of an advowson, the
lord chancellor, by virtue of the general authority  delega-
ted to him,  presents to  the preferment, whatever be its
value ; generally, however, giving it to one of the  family:
—this right, says Mr.  Woodeson, was asserted by  Lord
Talbot, whose example was followed by his immediate and
other successors.(e).
  As to a clergyman himself becoming lunatic see ante,
pa. 17.

                 Sect.  III.   Marriage.

  One of the incapacities  established by the English law
is want of reason, without a competent share of which, as
no other, so neither can the  matrimonial contract be val-
id.f/)
   It was formerly adjudged that the issue of an ideot was
legitimate, and consequently  that his marriage was  legiti-
mate ; a strange determination, since consent is absolutely
requisite to matrimony, and neither ideots or lunatics are
capable of consenting to any thing: and therefore, the civil
law judged most sensibly  when it made such deprivations
of reason, a previous impediment, though not a cause of di-
vorce, if they happened after marriage ; and modern reso-
lutions have adhered to the reason of the civil law, by de-
termining, as  in Morison's  case, before delegates, that the
(c) 6 Co. 69.
(d) 1 Wood. Lect. 409
(e) 3 Cruise Dig. 31.
(J) 1 Bl. Com. 438.1 Rol.Abr.357 
MARRIAGE.
81
marriage of a lunatic, not being in a lucid interval, was ab-
solutely void.(g)
  Formerly when such a marriage was maintained, if the
lunatic died, his wife was entitled to dower; for his situa-
tion worked no forfeiture, and the king had only the cus-
tody of the inheritance in case of ideocy, and a  power of
providing for him and his family in case of lunacy ;(h) but,
in both cases, the fee and inheritance being  in the lunatic,
his wife became dowable.   But such a claim is now set at
rest.(i)
  Persons accessary to the contriving the marriage of an
ideot or lunatic, who is possessed of property which can
alone be presumed to be the inducement to such an union,
are acting in contempt, and  are liable to an  information at
the suit of the  crown as the general guardian, and those
who are  assisting are also  liable to be committed to  pris-
on, or to give  good security, to appear and give  evidence
of the transaction, Smart v. Taylor.  9 Mod.  98.   But  such
a marriage is not a supersedeas to the commission, (fe)
  It is not barely the having some part in the transaction
relative to such a marriage that constitutes a contempt,
but it is the being in some manner parties to the contri-
vance, to  shew that they are in some degree criminal.(/)
   Upon a marriage  with a feme lunatic, the court of chan-
cery ordered all  deeds and securities relating to her  for^
tune, and all her jewels, to be lodged with one of the masters,
in order to secure some provision for her if she should sur-
vive the husband, and for children if they should have any,
and committed him to the fleet prison for the contempt.(m)
   But if the marriage is afterwards held good in the spir-
itual court, as  it may be by being consummated  in a  lucid
interval;  and, if upon one inspection it appears that she is
  (?) Ff. 23. tit. 1.1. 8. T.2.1.16.    9.  Abr. Eq. 278.
  $) Co. Lit. 31. a.                (0 Barnard. 407.(1741). 15  Viner.
  (i) Roper's Baron and Feme, 102.  138-9.
  (JM Cha. Prec.  203. 15 Viner, 138-   (m) 1 Geo. I. Cha. Prec. 412.
12 
82
DISABILITIES INCURRED.
 restored  to her understanding, the husband shall  be dis**
 charged,  and the commission be vacated.(n)
   It  seems to have been a doctrine of the  old law, that if
 the wife  be an ideot,  the husband would  not be  entitled
 to curtesy: so  that if lands descended  to  a feme  cov-
 ert ideot, who had issue, and  the  husband have entered
 before office  found,(o) the king, by prerogative, and not
 the  husband, by curtesy, would  have been entitled : but
 it is agreed at present, upon principles of sound sense and
 reason, that an  ideot cannot marry,(p) she being  incapa-
 ble of consent to any contract; as the act  after-mentioned
 invalidates -he marriage, it of course determines any hus-
 band's claim.   But this cannot apply to  any curtesy in
 lands of a wife becoming insane after marriage.
   But as  it might be difficult to prove the exact state of the
 parties' mind at the actual celebration of the nuptials; and,
 considering that  such  persons are liable  to be  surprised
 into unsuitable  marriages, which may  be of pernicious
 consequences, and a  great  misfortune  to their families,
 the  legislature  interfered in  1742,(9) an{^ enacted that
 if any person shall  be found  lunatic  by  any inquisition
 by commission, under the  great  seal, or person under a
 phrensy,  whose person and estate, by virtue of any statute,
 shall be committed to the care and custody of particular
 trustees, shall marry before  he or she shall be  declared
 of sane mind by the great seal, or the major part of such
 trustees,  every such marriage shall be null and void.(r)
  Notwithstanding this statute,  it  is held in the ecclesias-
 tical court that dumb persons may contract matrimony by
 signs ; and their marriage is  lawful  and  available to all
 intents.(s)

  (t«1 Eq. C». Abr. 278. Gilb. E<|. 89.    (r)  Until this act, persons  contract-
Pi. Ch. 212.                   ing matrimony during a lucid interval,
  (o) Co. Lit. 306. Plowd. 26j. 2 B!.  were  bound, and  the marriage  was
Co.,.  127.                     valid.  9 Ves. 607.
  (p) " >i'-r, 59.                  («)  Swin. Mat. Con. s. 15.
  (?) 15 G. II. c. 30. 
TESTIMONY.                   83
   Now, to be within the prohibition of the statute, they
 must have been  declared  lunatic by commission :(t) and
 whatever may have been the opinions or adjudications of
 former times, it needs no trouble of demonstration to shew
 that persons born deaf and dumb are necessarily ideots, or
 come within the  least shade of lunacy.   It  may  be that
 these disabilities are also  added to the  other privations ;
 but they are rare cases.   The skilful  exertions of Mr.
 Braidwood, and of the conductors of the schools for  the deaf
 and  dumb, have proved that  the human mind, although
 deprived of  its two essential organs  of knowledge,  elicits
 as much intelligence as in other cases, when the web  which
 envelopes it is removed with a delicate hand.
   If a marriage, under the disabilities of insanity,  or ideo-
 cy, be of no force, it follows that  the  issue will not be
 legitimate.
   But  it has been  held in the ecclesiastical court, that
 though it  hinders the contract of matrimony it does, not
 avoid that marriage which is already contracted; that is,
 previous to the lunacy.(«)

                Section IV.  Copyholds.

   A  lunatic  cannot become a copyholder,(x) because he
 cannot render any services, nor depute any other  person ;
 and this incapacity saves him from  forfeiture; for having
 no  will, no act can operate to that effect.(t/)

                 Section V.   Testimony.

  To determine exactly the credibility  of a witness, and
 the force  of evidence,  is  an important point  in  every
good  legislation.   Every man  of common sense, that is,
  (0 2 Burn. Ecel. 395.           tiis.
  (m) Just. Jur. Can. I. 2. tit. 12. Am-   (x) 1 Cruise. Dig. 317.
Corrinus Jus. Can. 1. 2- tit. 13. de Nap.   (y) Co. Cop. SO. 
84               DISABILITIES INCURRED.
every one whose ideas have  some connexion with each
other, and whose  sensations are conformable to those of
other men, may be a witness ; there are  no spontaneous
or  superfluous sentiments in the heart  of man ;  they are
all the result of impressions on the senses.  Where those
impressions are so violent as to disturb the common organ-
ization of the sensorium, and thus disconnect the  usual ar-
rangement of thought and memory, and conception, they
must necessarily disqualify the testimony of any witness.(z)
   Therefore it is that all  persons who are examined as
witnesses, must be fully possessed of their understanding;
(a) that is, such an  understanding as enables them to re-
tain in  memory the events of which they have been wit-
nesses.  Hence it is generally laid  down, that  persons  of
non-sane memory or wanting understanding, while under
the  influence of their malady,  cannot be admitted as wit-
nesses  between other parties;  for they do not possess the
requisite share of  understanding.^)
   As to the commission itself, if a witness be produced who
is not of competent understanding the adverse party may
except  against him, and the commissioners  ought  not to
examine him.  But if the prosecutors of the commission
persist in his examination, the  other  commissioners must
certify the matter to the  court,  and  make affidavit of the
irregularity .(c)
  A commissioner may be  a witness, but he must be ex-
amined before he qualifies himself, (d)
  And  a person deaf and  dumb,  if of sense to  have in-
telligence conveyed to him, may be a  witness, and give
his evidence by signs, through the medium of an interpre-
ter, (e)
  The next of  kin of a  lunatic, having no interest in the
property; even where the lunatic is intestate, and in the
  (x) Beccaria, c. 13.            (c) Wyatt Pr.  Reg. 419.
  (a) Peake Evid. 81.            (d) Ibid.  422. 1 Vern. 369.
  (*) Co. Lit. 6 b. Pul. N. P. 293.     (e)  Leach's Crown Ca. 455. Peake 83. 
ACTIONS AND SUITS.
85
most hopeless  state, a moral  and physical impossibility,
though the law would not so regard it, that he should nev-
er recover, even if he was in  articulo mortis, and the bill
was  filed that instant, to perpetuate his  testimony, the
plaintiff could not qualify himself as having any interest
in the subject of the suit.  Lord Dursley v. Fitzhardinge
(1801). (f)

            Section VI.  Actions  and  Suits.

  There was  a time when  ideots, madmen, and such  as
were deaf and dumb naturally, were disabled to sue, ber
cause they wanted reason and understanding; but at this
day they all may sue.(g)  The  suit must be  in their own
name but it shall be followed by others: they cannot sue
or  appear  by guardian, prochein ami, or attorney, but al-
ways in person.(/i)
   The statute of Westminster 2. c. 15. does not extend to
ideots.
   Indeed if he be a minor he must sue by guardian: and
if adult, an attorney has been allowed.(r)
   The lunatic ought generally to be party to a suit ;(/c)
but  this was overruled  in a bill filed for relief  against a
debt assigned by  the  lunatic without  consideration;  for
this would have been to stultify himself.  He may be parr
ty to a suit to enforce an agreement, entered into before the
lunacy, for there the above objection does not arise:(/) it
is as needful to make the lunatic party as an infant, where
the suit is for his own benefit: but in case of an ideot,  it is
otherwise, for the former may recover, and is then entitled
to have  his estate at his own  disposal.
   The distinction is, that where he may be led  to stultify
  (f) 6 Ves, 260.                 (i) 4 Co. 124 b. Palm. 520. 2 Saund.
  ("rt Bract. I. 5. 420. Brit. 39. Fl.  23:,.
6. 17.                          (*) 1 Ch. Ca. 113.
  (A) 33 H. VI. 18.  F. N. B^ 27. G.   (t) Ibid. 153.
Co. Lit. 135. b. 2 Inst. 390. 
86
DISABILITIES INCURRED.
 himself, there he  is not  to  be a party:  in other cases he
 may be a party.
   If a person who  is in the condition of a lunatic or ide-
 ot,(n) though not found so by inquisition, is made a de-
 fendant, the court of  chancery, upon proper information
 of his  incapacity, will direct a guardian to be  appointed :
 and if  a lunatic be sued, a committee  must be assinged
 to defend  the suit.(o)
   Informations are sometimes exhibited by the attorney
 general, on behalf of ideots and lunatics, construing them
 as under the  peculiar protection of the  crown; not only
 to secure their property, but also against their committees
 for an account.(jj)
   Lunatics generally sue and  answer  by their commit-
 tees.^)
   If he be not named a party in the bill or information, it
 is commonly good cause for  demurrer.
   Bills for these purposes were frequently brought by the
 attorney general  in the nature of an information :(r) and
 it was formerly held that the lunatic should not  be  a party
 under the old principle of not stultifying  himself :(s) but it
 has since been held, that he  must  be a party by his com-
 mittee to  a bill, and not  an  information, because he may
 recover, which differs  from the case of an ideot.(tf)   These
 bills  are  now established in equity, where it is held that
 this maxim of law is to be understood of  acts done by the
 lunatic in prejudice ol  others, that he should not be admit-
 ted to excuse himself on pretence of lunacy;  but not as
 to acts done  by  him  in prejudice of himself, for this can
 have no foundation in  reason and natural justice.(w)
   If a  lunatic and his committee be defendants, and  the
 latter refuse to put in an answer for him, the plaintiff must
  (n) Mitf. Eq. pi. 95. 3 P. W. 111.     (r) Fincb, 135.
  («) Vern. 106.                   (s) Pr. Reg. 232 1 Eq. Ca. Abr. 279.
  (p) 1 Ch. Ca. 112, 153. 4 Bro. 559.    (t) 1 Dickens, 378.
3 Gw. B. Abr. 542, 2 Dickens, 748.     («) 1 Fon. Eq. 6ft
  {q) 1 Dickens, 233.1 Ch. Ca. ]53> 
ACTIONS AND SUITS.
87
proceed against the lunatic, and  apply to the great seal to
appoint a new committee.  2 Dickens, 490, 0772.)
   And though weakness or other imbecility, and drunken-
ness, may not be sufficient to support a  commission of lu-
nacy, yet the courts of law and equity will relieve against
acts fraudulently procured  in such situations, the cases of
which are very numerous : for if a man is deprived of the
use of his reason, his  act can by no  means  be a  serious
and deliberate consent, and without this no contract can
be binding by the law of nature, (x)
   A dumb man has been ordered to  answer a bill, and al-
so interrogatories ;(y)  but one dumb and senseless, so that
he cannot instruct his counsel to draw his  answer, shall
not be put  to answer ;(z)  but where a man was deprived
of memory by age, and almost non compos mentis,(a) he
was ordered  to answer by guardian, the demand  in ques-
tion being of small  amount, otherwise the appointment of
a committee would have been the most regular practice.
   The custody of the land of a copyholder who was a
lunatic, was committed by the lord to J. S. and a trespass
was done upon the land; and the court ruled that  the ac-
tion should be in the lunatic's name, for there was no inter-
est gained by this commitment, the committee  being only
as a bailiff, having no interest but for the profit and bene-
fit of the lunatic, and  as his servant; and it is contrary to
the nature of his  authority to have an  action in his own
name; for the interest, and the estate, and all  the power
of suits is remaining in the  lunatic:  and it was ruled that
a lunatic shall have a quare impedit in his own name. Cocks
v. Dawson.(b)  The same rule applies as to ejectments, for
he cannot grant leases.(c)
   At common law, ideots, who, for want of legal discre-

  te 1 Fon. Eq. 65.              (a) Ibid. 3 P. W. 111.
  (i/i H. Ch. 124.                 (6) 1 Sid. 125. Hob. 215. Hut. 16.
  (z) Totb.  140. Carey Rep.  132.  Popb. 141.
Wyat Pr. Reg. 29*               (c) 2 WUs. 130. Woodf. 348. 
88
DISABILITIES INCURRED.
tion, are incapable of appointing an attorney, must appear
in person:  but where an  ideot  appeared by her friend,
she assigned for error, that being ideot, she had previous-
ly appeared and defended the action by attorney.(d)
   The courts of common law will not discharge a defend-
ant out of custody on filing common bail on affidavits that
he  had become insane since the arrest; nor if insane at
the time of the arrest: nor will  they discharge the bail
put in above,  if he become insane, and a commission of
lunacy be found since the commencement of the action.(e)
   It is a good defence to an action on a deed  that defend-
ant was a lunatic at the time.(f)   This seems to militate
against the rule in Beverley's case, that a man  shall  not be
allowed to stultify himself; but, on the subsequent author-
ity of Smith v. Carr (1728), when chief baron Pengelly ad-
mitted it; and  on  considering Thompson v. Leach,(g) the
court suffered it to be given in evidence, upon which  the
plaintiff was nonsuited.  But it has since been held (9 Wil.
III.) that such bonds are void, because the law has  not ap-
pointed any act  to be done to avoid  them, and the only
reason why the party cannot plead non est factum is, be-
cause the cause of nullity is extrinsic, and does not appear
on the face of the deed.(/i)
  The old  rule that a man shall not be able  to stultify
himself by pleading insanity to  any act,  has been since
much controverted, and from its great inconveniences much
restrained:  and such a plea was advised in Smith v. Carr,
and Thompson v. Leach.(i)
  These were cases at common law; although the  princi-
ple on whiqh courts of equity in general relieve, appear to
entitle the lunatic to relief, there are  no cases in which the
plea of non compos by himself before inquisition, has been
  td) C«.Lit. 135. b  2 Inst. 390. F. N.   (f) Bull. N. P. 172. Stra. 1104. 4
B. 27. 2Saund. 335.               Co. 123. 1 Tidd. 595.
  (e) 2 T. Rep. 390.  (1788.) 4T Rep.   (g) 1 Vern. 198.
121. (1790.) Tr. 13 G. Ill 6 T. Rep.   (1i) Salk. 675.
133.1 Tidd 184.                  fa Str. 1104.2 Ventr. 198. 
ACTIONS AND SUITS.
89
allowed;  on the contrary, in Bonner v. Thwaites, it is said
that the chancery will not retain a bill to examine the point
of law.(fc).
  A new trial was  granted  by the court of  chancery,
where that  court had directed an issue, and that the jury
should  indorse the postea at what time the lunatic became
so: and they found that the person was not insane at all.(/)
Although the chief evidence was of  lucid intervals, and all
agreed that she was habitually insane : and on the second
trial a verdict was found accordingly.
  In a suit in the ecclesiastical court, by the administrator
for a legacy, if the defendant plead a release from the de-
ceased legatee, and the administrator would avoid it by an
allegation of lunacy  or ideocy; that  fact must  be tried
there, and no prohibition will lie, because that court has a
jurisdiction of the original matter:  according  to the rule
non est consonum rationi, quod cognitio accessorii in curia chris-
tianitatis impediatur, abi cognitio causes principalis ad forum
ccclesiasticum noscitur pertinere. (m)
   In addition to  the general jurisdiction of the court of
exchequer  in matters  of  equity, a  special jurisdiction is
conferred upon  it by several statutes, such as, inter alia,
the 29th Geo. II. c. 31. enabling lunatics and others to
surrender leases, in order to renew the same.(n)
   The committee applies by petition or motion in a summa-
ry  way;  and upon hearing all parties, an order is made for
his surrender, without  levying any  fine, and  to accept for
the lunatic a new lease, similar to the former, as  the court
shall direct.
   The fine advanced by the committee for the new lease,
and all incidental charges, are to be paid out of the estate,
and are  deemed a  charge upon the  leasehold estate, to-
gether with interest,  as the court shall  direct.
  (k) Tothill 130. 1 Fon. Eq. 48.      Ja. 269, 348. 12 Co. 65. Bnls. 211
  (0 3 Bro. 453.                 (n) 1  Fowler, 3.
  (m) Reg.  Orig. 58. 2 Inst. 493.  Cro.
                      13 
90
DISABILITIES INCURRED.
  The renewed leases are liable to all the same uses and
trusts, to which the former leases were invested.
  Ideots and lunatics  are incapable by themselves of in-
stituting suits in the exchequer.(o)
  But they appear in their proper names, and put in their
answers, and defend by their  committees,(p) who are ap-
pointed guardians for that purpose as a matter of course;
and if it happens that an ideot or lunatic has no committee,
or  the  committee  has an interest  opposite to  that of the
person whose property is entrusted to his care, an order
may be obtained for appointing another person as guardi-
an, for the purpose of defending the suit.   So if a person
in  the condition  of an ideot or lunatic, though not found
such  by inquisition, is made a defendant, the court, upon
proper information of his incapacity, will direct a guardi-
an  to be appointed.^)
   If a bill is  brought against a lunatic, stating him to be
 such, it is a motion of course to apply  for a commission to
 assign  him a guardian, and to take  his answer  by such
 guardian ; but if the bill does not state the defendant to be
 a lunatic, in that  case an affidavit, or other evidence will
 be required, to shew the defendant's lunacy, before he
 can be permitted to answer by guardian.(r)
    The like practice applies with respect to ideots, and  to
 those persons who by age  or infirmity are reduced  to a
 second infancy, (s)
    His answer may be referred for scandal : but  it being
 upon the oath of a guardian, he, and not the lunatic, is
 liable to  pay the costs, or rather the  counsel, who signed
 such an  answer.(<)
    By the statute of limitations, 21 Jac. I. c. 16. persons
 becoming non compos are entitled to  bring their* actions
 within  as many  years after their recovery as others are
 limited to after the cause of action accrues,(u)
  (o) 1 Fouler 18.                (*) Ibid.
  (ft) Ibid. 211, 332. 410.            (0 I''"!; 465
  (£) Mitf. on Plead. 94.            (») I Tidd 1«
  (r) 1 Fow. 478. 
WILLS.
91
                   Sect. VII.   Wills.

   The law  which substitutes a testator in its place, which
invests him with the power and character of a real legis-
lature, which grants him the right to change, to discompose,
to abrogate, the natural and favourable order of legitimate
successions  requires at the same  time  from  him both a
capacity pro-portion ate  to the importance of his ministry,
and a plentitude, and if we may so express ourselves, of a
superabundance of will; and therefore it renders him ca-
pable of all kinds of contracts previously to impressing
him with capacity necessary for making a testament.(a;)
   Hence it is that incapacity is of more importance in de-
ciding upon the validity of a testament, than merely in de-
termining upon the force and nature of a contract.(y)
   Ideots not having understanding are deemed incapable
of making any will; this doctrine is to be understood of a
mad or lunatic person, during the time of his infancy of
mind ;(z) but such an one as hath lucid intervals, clear or
calm intermissions,  may, during the time of such  quietness
and freedom of mind make  his testament, and it will  be
valid, a)
   The will  of an ideot,  though  it were wise, sensible and
reasonable,  is  nevertheless void ; as it seems impossible
that it should be so,  there is good ground for suspicion that
it were not his.
   But such an  one as is of a mean understanding only, and
of the middle sort between a wise man and a fool, unless
he be so foolish, simple, and sottish, as to be made easily
to believe things impossible, are not prohibited from mak-
ing a will.(6)
  (x) Evans'Pothier2. 587.       Swin. 37. et seo. Co. Lit. 89 L < , o
  (y) Ibid. 589.                Test. .19. 4 Burn. Eccl.
  (i) 3 Mxl. 43. Swin. 8.           (Z») Suin, UQ.
  (a) 34 H. VIII.  c.  5. Br. Cust.  5Q. 
92
DISABILITIES INCURRED.
  An old man who is become childish, or so forgetful as
not to remember  his own name, cannot make a will; so
also a drunkard, who, by excessive intoxication, is depriv-
ed  of the use of  reason and  understanding, during  that
time, may not make a  will :(c) for the  qualification of a
valid will is  a sound and perfect memory  ; such a reason-
able memory and understanding as shall enable him to dis-
pose of his estate  with reason :(d) but if his understanding
be only obscured, his  memory troubled, and not clean
spent,  he is  not incapacitated.(e)
  One deaf and dumb  by nature, has been deemed inca-
pable of making  any will; but the observation suggested
under the subject  of marriage, relative to this disability,(/)
which is now better understood not to be an affection of
mind, may, it is presumed, be sufficient to correct this  doc-
trine ;  and it has been established, that one who is so by
accident, may, by writing or signs, make a will; a person
that is so by nature, may  make signs  also, if ideocy or
lunacy be not added to his infirmity.
  To make  a valid  will, it is  not  sufficient that the testa-
tor have memory  to answer familiar and  usual questions,
but he ought to have a disposing memory, so as to be able
to make a disposition of his estate  with understanding and
reason : which the law calls sound  and perfect memory.(g)
   And by the civil law these persons are disabled  from
making wills, because the integrity and perfectness of mind,
and not health of body, are requisite qualifications :  and
these they are admitted to have during lucid intervals.(ft)
   The disqualification of ideocy and lunacy to make any
devise, is a common law disability; and what shall be
said to be a sane and perfect memory at  the  time of the
devise, is a question to be determined at common law.(i)—
  (c) 2 Co. 6. 23.           ;     Peake  375. 1 Clia. Rep. 18. Law of
  (</) Swin. 53.                 Test. 89. 4 Burn. Eccl. 44. 1 Powell
  (e) Ibid. 83.                 on Devises, 146.
  (/) Aute.                     (/«) Swin. 76.
  (g) 6 Co. 23. Moore 760.' Dyer 72.    (>") 6 Co. 23. b. 
WILLS.
93
It is founded on the actual incapacity of the party to do
any act relating to the disposition of his property : it  is
therefore necessary  that every one must be of good  and
sane memory at the time of disposing of his property .(A;)
   One  principal evil meant to be remedied by the fra-
mers of the clause in the stat. of frauds, 29 Car. II. c. 3. s.
5. relative to the attestation of wills, was the secret and pri-
vate manner in which wills were executed previous there-
to, and  the frauds consequential thereupon; with a view
to check which, the clause introduced a third ceremony to
be observed in the making of wills;  namely, that the sign-
ing of the instrument should be " attested," &c.
   In the application  of this  word " attested" to the  act of
executing the will, the legislature has been considered, in
the construction of it, as having called the attention  of the
person attesting to three several objects ;  one of which ap-
plies to the testator  himself, the other two  to the instru-
ment.   First, that which relates to the testator, is with re-
gard to his sanity ; an attention to which in the witnesses,
is a necessary  inference, as well  from  the nature of the
transaction, as from the objects of the statute.   .
   The name  of the  instrument necessarily imports,  that
there must be a capacity of disposing in  the devisor at the
time of executing thereof;  and that is so essential to its va-
lidity, that a  formal declaration of his sound and disposing
mind is become the  introductory  clause in such instru-
ments.   In the construction of this statute, therefore, it has
been held that the legislature, when it  required the  wit-
nesses to attest the signing, must, by implication, have re-
quired them to attest the capacity of signing; for it was not
merely the abstract act or form of signing that the legisla-
ture required as one necessary solemnity to  the constitu-
tion of a devise, for  an ideot or lunatic might put his name
!o an instrument, and yet be perfectly ignorant of its con-
(k) Cro. Jac, 497. Dyer 148. b. 
94
DISABILITIES INCURRED
tents;  but the legislature, in the word " signing," compre-
hended another idea, namely, signing an instrument Intend-
ing it to be a will,  consequently the mental power or ca-
pacity of willing was necessary, as well  as the corporal
power of putting the mark or name, to constitute a signing.
   The business then, of the persons required by the stat-
ute to be present at executing a will, is not barely to attest
the corporal act of signing, but to try, judge  and determine^
whether the testator is compos to sign.(/)  In equity, there-
fore, the sanity of  the  devisor  must be proved, which is
one reason why a will can never be proved as an exhibit,
viva voce in chancery, though a deed may ; for there must
be liberty to cross-examine  to this fact of sanity.  From
the same consideration it is become the invariable practice
of that court, never to  establish a  will unless  all the wit-
nesses attesting are examined ; because the heir has a right
to a proof of sanity from e\ery one of them, whom the stat-
ute has placed about his ancestor.
   In conformity with this doctrine, it was  said by  lord
Hardwicke, in the case of Wallis and Hodgeson,  that it had
been determined over and over, that the devisee must shew
the devisor to have been of sound and disposing mind when
a will was to be established as to real estate; proving that
it was  well executed, according to the statute of frauds and
perjuries, was not sufficient.(m;
   But  lord Hardwicke added, in the last case, that if they
could have produced evidence on the part of the plaintiff,
of any act having been  done under the  will relating to the
real estate, he would have dispensed with the rule, being a
mere matter of formality.  Sed qucere.
   And a will was set aside after forty years possession un-
der it,  upon account of the insanity of the devisor, although
in prejudice of  a purchaser.(n)
 (/) Harris v. Ingledew, 3 Will. 93.  Exceptions, 1 Atk. 56.
Camd. Arg. 23.                  (;i) Squire v. Pei-shall, 8 Vin. Abr.
 (m) Wallis v- Hodgeson, on Bill of  169. PI. 13. Powell oo Devises, 68—71-. 
WILLS.
95
  The onus probandi of a testator's lunacy lies on the heir
who would invalidate the will ;(o) and it is sufficient for the
party who pleads the insanity  of  the  testator's mind, to
prove that he was in that situation at any time previous to
the making his will; although he do not prove this condi-
tion at the very time  of making  it.   The  reason, says
Swinburn, is, that it being proved that he was once mad,
the law presumes him to continue so, unless  the contrary
be proved ;  as it presumes every one  to be honest, until
the contrary be proved; and being proved, then he which
is evil to be evil still: so every man is presumed to have
the use of his reason, until the contrary be proved, which
being proved, then  he is presumed to continue still void of
it, unless he were so, for a short time, and in some peculiar
actions, and not continually for a long space, as for a month
or more ; os unless he fell into some phrenzy, upon some
incidental cause, which is afterwards removed; or unless
it be a long time since he  was  assailed with the malady;
for in these cases he is not presumed to continue in his for-
mer furor or phrenzy .(p)
   Yet it is a hard and difficult point to prove a  man not to
have the use of understanding or reason ;(q)  and therefore
it is not sufficient for a witness to depose that the  testator
was mad, or beside his wits unless a sufficient reason can
be given  to prove  this deposition: as that he saw him do
such acts, or heard him speak such words, as a person hav-
ing reason would not have done or spoken.
   The sane memory for  making a will is not at all times,
 when the party can speak yea or no, and hath  life in him,
nor when he can  answer to any thing with sense : but he
 ought to have judgment to discern, or be of perfect mem-
ory, otherwise the  will is void.(r)

  (o)  6 Cruise Dig. 16              (?) Ibid. 77,
  Up) Swin. 78.                   (r) Ibid. 77. 
96
DISABILITIES INCURRED.
   Wills manifestly  improper,  are not  on that account
 merely to be set aside, as of insanity, (s)   The giving more
 to a younger than to an elder son, or  any inaccuracy in
 devising a remainder over, if both sons should die with is-
 sue, instead of  without issue, were not evidence on  which
 to say that the testator was non  compos.   Burr v. Davall.
   The superior courts deny prohibition to the ecclesiastical
 court against granting probate of a will, upon a suggestion
 of non compos mentis of the testator ;(t) for without probate
 the executor cannot sue  for debts, which might thereby be
 lost, and the will remain unperformed;  and the statute of
 Henry  VIII. never intended to lessen the jurisdiction of
 the ecclesiastical court.
   A bill will  not  lie to  perpetuate the testimony of sub-
 scribing witnesses to the will of a person since become a
 lunatic, and yet living :(u) although it could be no  preju-
 dice to the testator, nor  would it prevent the will from be-
 ing revoked, if he should recover ; but it was no will until
 death, and this would be to perfect what was  no effectual
 act; had it been  maintained, he need not be a party, for
 nothing was prayed against him.
   In the case of Mr. Greenwood, who had conceived that
 his brother intended to  have poisoned him ; this  was the
 leading source of his infirmity.  He afterwards pursued
 his profession;  but this idea was uppermost in his mind;
 and under that impression he made his will, excluding him
,from the reversion of his fortune.
   Kord Kenyon, upon proof of insanity, declared the will
 invalid, abstracted from the justice of the disherison.
   An executor, who takes not any beneficial interest, is a
 competent witness to prove the sanity of the testator, (a?)
   Persons of these disabilities seldom make wills from the
 suggestion of their own  minds ;* they are generally  impo-

  rt) 8 Mod. 59.                  (k) 1 Vern. 105.
  (0 Salk. 552.                  (r) Woodf. 493. 
WILLS.
97
 sed upon by those amongst whom they have  the misfor-
 tune  to  be placed; and  therefore the conduct  of those
 around them, as well as the imbecility of their own minds,
 is generally the subject of inquiry in the courts of justice.
 But the cases which require the greatest attention, which
 frequently baffle the understanding of the most acute, and
 for the proof or decision of which, no certain rules can be
 laid down, are those of  wills  made  by persons,  who,
 though in sound health and full vigour of body, have the
 misfortune to labour under that mental derangement, which
 prevents them forming just and  accurate notions concern-
 ing the conduct of human affairs.   Unlike the ideot, who
 seems deprived of all reasoning  faculties, the madman ap-
 pears  to  reason, and unless when the predominant idea,
 which always possesses these unhappy persons, intervenes,
 he frequently appears  to reason right; in so  much, that
 many instances  must have occurred to the experience of
 all who have been in the habit of attending courts of jus-
 tice, where persons who have been proved to demonstra-
 tion, to be utterly deprived of reason, have passed to com-
 mon and casual observers  as people of extraordinary tal-
 ents and abilities.   The reasoning of lord Thurlow in the
 case of Atty v. Parnther, is very applicable here.  See pa.
 106 et seq.
  Many questions have been raised upon the execution of
 a will during a  lucid interval'/?/)  and that being  proved,
 the will has been held valid and effectual, to all  intents and
 purposes, for the conveyance of real and personal estate
 as if the testator had never been deranged.
  If the exact date does not appear, so as to fix it  during a
 lucid interval, yet, unless it express an apparent mixture of
wisdom and folly it ought to be accepted for a lawful testa-
ment.^)
  (j/) 9 Ves. 610. Swin. pt. 2. s. 3. Or-   (z) Vasq. de Success. 1. 1. s. 9.
phan's Legacy, pt. 1. c. 8.          Swin. 38.
                       14 
98              DISABILITIES INCURRED.
   All proceedings, founded upon  a will, which is  after-
wards disproved  for ideocy or lunacy,  necessarily fall;
and in actions for account, audita  querela lay for the de-
fendant in such cases.(a)
   When a will is  carried to  the  ecclesiastical court to be
proved by the executor, and any disability attaches to the
testator at the time he signed it, tending to impeach its va-
lidity, the practice is for a proctor to enter a caveat, which
prevents the probate  passing in the common  form: he is
then required by the  executor to  shew what interest  he
has in the estate; on his shewing this  interest, and de-
claring that he opposes  the will,  the executor propounds
the same, signifying that it will be proved by attesting wit-
nesses, and files an allegation of the factum of the will and
of the testator's competence at the time of its execution;
he then examines  his  witnesses, which the opposing  party
may cross examine; and  assigns the cause for sentence,
which passes, unless the opposing party files his  allegation
of facts, shewing the incapacity; upon which  he proceeds
to examine his witnesses, who may in like manner be cross
examined  by the executor.  Neither party  see  the de-
positions  till publication  is decreed; after which either
party may set the cause down for hearing, and the validi-
ty, or  invalidity of the will is then pronounced, and  the
probate decreed or rejected accordingly.
   If an executor become  lunatic, the ecclesiastical  court
grant administration, with  the will annexed, to such person
as the court of chancery  appoint  to be committee during
the lunacy.

     Section VIII.  Trusteeship, and Offices of Trust.

   The natural incapacity  of an ideot or lunatic for any of-
fice of confidence or trust  is obvious; but the inconvenien-
ces are manifold where  it  happens that trustees of lands or
(a) Dyer 203. 
        TRUSTEESHIP, AND OFFICES OF TRUST.         99

mortgages for others become unable, even with the direc-
tion of the cestuy que trust, to execute  any conveyance to
other persons ;(6) this was a subject which called for the
provision of the legislature ; and to remedy an evil of such
great magnitude, it was enacted that such persons, or their
committees in  their name, by direction of the court, signi-
fied by an order made upon the hearing of all parties con-
cerned, on the petition of the persons for whom they were
seized in trust, or of the mortgagor, or persons entitled to
the monies secured upon any lands whereof such lunatic
was seized by mortgage, or of the persons entitled to the re-
demption, to convey such lands in such manner as the order
shall direct; and such conveyance shall be as valid, as if
such lunatic were of sane mind, and had executed the same.
   And all such lunatic trustees, and mortgagees, or their
committees, are compelled to obey such order, by execut-
ing such conveyance as trustees of sane memory are com-
 pellable to convey, surrender, or assign their trust estates,
 or mortgages.
   It has been held, that the court of chancery has  no au-
 thority, on petition, to order a trustee, becoming a lunatic,
 to convey the legal estate ;(c) it can only be by bill  filed :
 there may be evidence in the master's office of his being ill;
 but there is  no reason to denominate  him a  lunatic: it
 would be  taking, upon affidavits, the  cognizance  of the
 state of his mind and legal capacity,  which, in courts  oi
 justice, is to be established by inquest; there may be ca-
 ses where his execution of a deed cannot be obtained, and
 in that case the execution by a committee may be sufficient
 but this can only  be done by taking out a commission
 first, and then the court will order the lunatic and  his cu-
 rator to join in the conveyance.(d)
   The heir of a mortgagee became lunatic, and being res-
 ident in Hamburgh, was found non compos by the proper ju?
   t/>) 4 Geo. II. c. 10.              (<*) Ambl. 80.
   (c) 2 Ves. Juii.  587, 8. 
too
DISABILITIES INCURRED.
risdiction there, and a curator or guardian was  appointed
there, for managing his affairs.—Held, that the  court here
was bound to take notice of that, and that he was a mort-
gagee  within this act, and  that, on payment of the mort-
gage debt, he should convey to the mortgagor, (e)
  But the court will not go into the question, unless a grant
of the custody be shewn.(/)
  It is doubtful whether the words of this statute include all
lunatics, as well such as are at large as those of whom cus-
tody has been granted by  the great seal.(g)   It may not
be great presumption to say, that if this doubt had not been
started, the language of the  statute  would  have  appeared
sufficiently general.—It seems also to be doubted whether
it extends to such of whom  a curator has been  appointed
abroad, (h)
  If a  trustee be of unsound mind, though no commission
hath issued to  find him so, and under. an impression of
weakness he refuse to transfer stock, under 36 Geo. III. c.
90. the court will order the  transfer.(z)   Simms v.  Naylor,
1798.
  This act was made to procure the transfer of stock, and
payment of dividends of trustees, absent or becoming bank-
rupt, or when they cannot  all be  found ; and where  the
stock stands in the name  of any lunatic or committee, who
might be absent beyond sea, or die intestate, and it become
uncertain whether they be  living or dead,  the  great seal
may order the transfer by the accountant general, or sec-
retary  of the bank of  England, to any new committee, or
otherwise, and to  pay the dividends as the order shall di-
rect ; and the bank is indemnified for so doing.
  A lunatic resident abroad, under judicial proceedings
there, is not held to be withjn the statute.(A;)
  Under this head it may  be observed, that an ideot or
  (<?) 1 Ves. jun. 298. (1749).         (/») Atnbl. 80.
  (f) Ibid. 382.                  (i) 4 Ves. jun. 360.
  (g) Ambl. 80. 3 Ba. Abr. 541.        (k) 8 Ves- 316. 
CONTRACTS BY DEED, $-e.              101
lunatic cannot be an arbitrator,(I) for he has not judgment
to make any award: nor can he be an attorney or solicitor.
for he has not skill to conduct the affairs of others, having
none to conduct his own.\m)  Neither can he be essoigner;
but it was held that he may be  a steward of copyhold es-
tates, and all his acts, ex  officio, are held  good :(n) in this
case there seems to be a wise  leaning in favour of others,
for if a lord should himself be so unwise -as to appoint a
lunatic to be his steward, it would be  a very unfair con-
sequence that all the adiriissions  and  surrenders, powers,
attornments, relinquishments of dower, &c. taken before
him,should be invalid, and therefore involve whole families
in confusion:  and  it is upon the same principle, that if a
Judge, the highest office of trust under the crown, should
become lunatic, all legal acts done  before him, would be
maintained.(o)

           Sect. IX.  Contracts, by Deed, <£c.

   The faith of every contract rests upon the capacity of
the contracting parties; this is a step beyond their fidelity
to each  other; it is of  the essence of the  contract not so
much that it is valid, as that the parties were in a sufficient
capability  to bind themselves :(p) for, every alienation of
a man's right, all  contracts  between  man and  man, all
leagues between princes, &c.  ought to be done with sound
judgment; therefore the acts of the will, that are expres-
sed  by overt signs, are to be understood as acts of a mind
endued with reason, of  which a man distracted is wholly
 deprived,  and therefore  incapable of performing  any*'
profitable things, (p)
   All promises  and  contracts  are  built upon this prin-
  (l) Abr.  Rediv. c. 4. 19.            (o) Brydall 65.
  (m) Brit c, 126.                 (/>) Grot, bel c-t pa.
  («) Mir. c. 2. s. 30. Sheph. Guide,    (/>) Brydall 59.
 115. 
102
DISABILITIES INCURRED.
ciple;(g) and  so also is the case of oaths, which  should
never be used but with great deliberation.
   One  criterion of a valid contract is, that both the con-
tracting parties can have redress against each other;  if
either party are by incapacity at the time out of the reach
of full remedy, it  is of natural justice that their contract
should be void.   A mental derangement  operating upon
particular subjects; should, with regard to those subjects,
be attended with the same effects as a total deprivation of
reason; and that, on  the other hand, a  partial disorder,
operating only upon particular subjects, should not, in its
legal effects, have an  influence more extensive  than  the
subjects to which it applies; and that every question should
be reduced to the  point, whether the  act under considera-
tion proceeded  from  a mind  fully capable,  in  respect of
that act, of exercising a free, sound, and discriminating
judgment;  but in case the infirmity is established to exist,
the tendency of it to direct or fetter the operations of the
mind, should be in general regarded as sufficient presump-
tive evidence, without requiring a direct and positive proof
of its actual operation.   Where the existence of derange-
ment is shewn in general, the partiality of its  operations in
the particular instance should  be manifestly and incontest-
ibly proved, in order to prevent the application of its gen-
eral effect.(r)
   This suggestion  is offered,  because the distinction must
always be made as to contracts by lunatics, whether they
were made in a  lucid interval.
   The unfortunate malady which affects the  persons who
are the objects of our present  attention, necessarily works
that incapacity in them as to invalidate all their  contracts,
and to favour the interposition of equity and  law in annul-
ling and avoiding acts which, if suffered to remain binding,
might confirm their own ruin,  and that of  their families.
(?) Grot. l. 2.
(r) Evans' Pothier 2. 2%. 
CONTRACTS BY DEED, £c
103
  This part of our  subject is perhaps of the most impor-
tance, and has been viewed in various lights by the decis-
ions of the courts, which have distinguished between  acts
done in pais, and those upon record, as fines, &c.
   An agreement of a lunatic cannot of course be carried
into a  specific execution ;(*) but the change of the condi-
tion of a person entering into an agreement by becoming
lunatic, will not alter the  right of the parties ;  which will
be the same as before, provided they can come at the rem-
edy.   As if a legal estate is  vested in trustees, a court of
equity will decree a specific performance, and the act of
God will not change the right of the parties; but if the le-
gal estate be vested in the lunatic  himself, that may pre-
vent the remedy in  equity, and  leave it at law.  Owen v.
Davies.
   Although weakness or other imbecility,and drunkenness,
may be  sufficient to support a commission of lunacy, yet
the courts of law and equity relieve  against acts fraudu-
lently procured in such situations: (t)—for if a man is de-
prived of the use of his reason, his act can by no means
be  a serious and deliberate consent, and without this no
contract can be binding by the law of nature : and any
conveyance made  by a  person of weak understanding,
though not lunatic may be set aside, (u)
   Lord Hardwicke refused to set aside a contract made by
a party who was drunk at the time; as there did not appear
to have been any unfair  advantage taken, and the agree-
ment was reasonable  in itself.(x)   But in an earlier case,
lord chief justice Holt held that a person might shew, in
opposition to  the validity of  a bond, that he was made to
sign it when he was so drunk that he did not  know what
he did.(y)
   They have, however, been deemed capable of purcha-
(s) Sugden 87. 1 Ves, 82
(t) 1 Fon. Eq. 65.
(7<> 1 Ves. 19.
(x) 2 Vera. 189.
(y) Bull. N. P. 192. 
104             DISABILITIES INCURRED.
 •ing; and although they recover their senses, cannot waive
 the purchase -,(z) and if they then agree to  it, their heirs
 Cannot set it aside.   If they die during their lunacy or id-
 eocy, then  their heirs may avoid their  purchase; as the
 king has the custody of ideots,  he may, upon office  found,
 annul it; and after a lunatic is found so by inquisition, his
 committee may vacate it.(a)
   If the  contract  be just, and  the consideration bona fide.
 and part of it paid, the court will order a specific perform-
 ance of it; and though an  agreement be only partly exe-
 cuted, yet if  the parties have  all acted upon it, this  will
 take it out of the statute of frauds; for it is fraudulent in
 one party to contract and lead the other on, and then with-
 draw from his performance, (b)
   The mutual consent necessary to constitute the validity
 of any contract, implies capability in the contracting par-
 ties, without which, as the basis of the contract, the  agree-
 ment becomes void, on principles both of law and justice.(c)
 Every principle of virtue is founded on this capability, for
 there can be no account where the rational principle is de-
 ranged.   Every moral obligation, and every rule of pub-
 lic  and private duty is also built on this foundation, and
 where that is not found, the happiness and welfare of  so-
 ciety being in danger of interruption, the human, ceasing
 to be governed  by those ties which unite and govern the
 social compact,  falls  to the level of  the brute, and  being
 equally, or in some cases more fierce, requires more coer-
 cion or confinement;  and as in  this  unfortunate state the
 mutual obligations of every contract  and right of expecta-
 tion of one side, and the knowledge of that expectation  on
 the other, cannot be accomplished, it becomes impossible
 that an ideot should enter into any valid contract, or any

  (z) Sullen 292.                 (b)  1 Ves. 297. 441. 1 Bro. 417.
  (a) 2 Bl. Con). 290. 6 Lit.  3. a. Co.  Proe. Cha. 519. 1 Atk. 12. 3 Atk. 4. 1
Lit. 247.b. 2 Vern. 412- 678. 1 Eq. Ca.  Vern. 151. 473.2 Vern. 455.
Abr. 279                       (c) Puff. I* Na. Grot. Bel. P. 
CONTRACTS BY DEED, #c.            105
person with him, and that such as have been entered into
with lunatics, can only be maintained in lueid intervals.(d)
  To prevent and relieve, as much as possible, the forlorn
situation to which human nature is thus reduced in these
afflicting cases, the common  law of England, sanctioned
by its early parliament, has vested in the crown, as a part
of its most splendid  and  dignified ornament, the tender
care of those, who, thus born under its allegiance, cannot
yield any of the services  of subjects, or bring into the
common stock any of their  personal aid; and as incapa-
ble of virtues, can only ask to be forgiven and protected
from their vices; and while incapable of industry and ac-
tivity, to manage and increase their own talent, rely upon
the crown for the custody, the safety,  and the comfort, of
their persons, and the preservation of  their property.
  Courts of equity will not only sustain contracts comple-
ted by a lunatic while sane, but, under circumstances, will
enforce performance of such as were entered  into before,
but were not completed at the time of his lunacy: for the
change of the condition of a person entering into an agree-
ment, by becoming lunatic, will not alter die right or the
other parties.(e)
  Where the lunacy, alleged at the time of the agreement,
was denied, and a sum tendered in the confirmation of the
contract, it was, on motion for directions, desired that the
receipts  might  be  general, or in pursuance of the order.
  And the court said, they might give  such receipts as the
defendant  desired, it  could not harm the lunatic, being
only the committee's acts:  nor should it prejudice them
on the hearing.(/)
  A bill was filed by a lunatic  and  his committee to set
aside a settlement which had been obtained from him be-
fore the issuing the commission of lunacy, but subsequent
  (d) Paley 1  142.                 (/) Wyatt, Pr Reg. 273.
  (e) 1 Ves. 82.
                        15 
106       .      DISABILITIES INCURRED.
to the time when he was found lunatic; and the bill charg-
ed several acts of insanity and distraction, previous to the
making of the settlement, and issuing the commission, and
that the commission was still in force.   To this bill the de-
fendant demurred, for it was against a  known maxim  of
law, that  any person  should be admitted to stultify him-
self, &c.
  But  the court  overruled the  demurrer, and said, that
the rule was to be understood of  acts done by the lunatic
to the prejudice of others, that he should not be admitted
to excuse himself, on pretence of lunacy, but not as to acts
done by him  to  the  prejudice of himself: besides here,
the committee is likewise plaintiff, and the several charges
of lunacy are  by him in behalf of the lunatic:  and it has
been always  holden  that the defendant  must answer  in
that case ; and so he was ordered to do here, though the
settlement was not unreasonable in itself, being only to lim-
it the estate in question to the defendants the  uncles, on
failure of issue male of the lunatic, with power for the lu-
natic to charge the same with considerable portions for his
three daughters, with a power of revocation.  Ridler  v.
Ridler.'g)
  A lady subject to such a furor uterinus as to produce tem-
porary derangement, with lucid intervals,  was  the legatee
of stock for her separate use :(h)  her husband received the
dividends by  a power executed by her.   An  issue was
directed from  chancery,  whether the  lunatic,  when she
executed  the power, was not found so.  A new trial was
prayed, and lord Thurlow said, there is an infinite, nay, al-
most an insurmountable difficulty in laying down abstract
propositions upon  a subject, which depends  upon  such  a
variety  of circumstances as the  present must necessarily
do :  general rules are easily formed, but  the application
of them creates considerable difficulty in all cases in which
  (^) 3 B.i. Abr. 539. 2 Vern. 414. 1   (h) 3 Brown, 443. Attx, v. Parnther
Eq. Ab. 279. pi. 5. 
CONTRACTS BY DEED, £c.
107
the rule is not sufficiently comprehensive to meet each cir-
cumstance which  may enter into, and materially affect,
the particular case.  There can be no difficulty in saying,
that if a mind be possessed of itself, and that at the period
of time such mind acted, that it ought to act efficiently; but
this rule goes very little  way towards that point which is
necessary to the present subject; for thdugh it be true that
a mind in  possession of itself ought, when acting, to act effi-
ciently, yet it is extremely difficult to lay down, with toler-
able precision, the rules by which such state of mind can
be tried.   The course of procedure, for the purpose of
trying the state of any party's mind, allows of rules.  If
derangement be  alleged, it is  clearly incumbent on the
party  alleging  it to prove such derangement; if such de-
rangement be proved or admitted to have existed at any
particular period, but a  lucid  interval be alleged to have
prevailed at the period particularly referred to, then the
burden of proof attaches on  the party alleging such  lucid
interval,  who must shew sanity and competence at the pe-
riod when the  act was done,  and to which the lucid inter-
val refers ;  and it certainly is of equal importance that the
evidence  in support of the allegation of a lucid interval,
after derangement at any period has been  established,
should be as strong and  as demonstrative  of such fact, as
where the object of the proof is to establish derangement.
   The evidence in such case  applying to stated intervals,
ought  to go to the  state and habit of the person, and not to
the accidental interview of any individual, or to the degree
of self-possession in any particular act;  for, from an act,
with reference to certain circumstances,  and which does
not of itself mark the restriction of that mind,  which  is
deemed necessary in  general to the  disposition  and man-
agement of affairs, it  were certainly extremely dangerous
to draw a conclusion  so general, as that the party who had
confessedly  laboured under a mental  derangement  was
capable of doing acts binding on himself and others. 
108            DISABILITIES INCURRED.
  The argument urged (by the solicitor general), that  af-
ter the removal of the disease, when the morbid affection
no longer obscures or vitiates the judgment, the mind will
labour under a languor and debility, which, with reference
to its former sound and unaffected state, might  render its
exertion and decisions very unequal and  inferior,  carries
along with it weight; for I  agree that the inferiority of
mind would in itself be a degree of evidence to shew that
the disorder  was not rooted out; the convalescent state
would incline to look forward to the removal  of the dis-
order, but would not of itself shew  that the disorder was
removed.   It might allow of the party doing  sound and
discreet acts; but it would certainly  require such  acts to
be watched and examined with jealousy: nothing could be
more dangerous than to try the state  of the mind by indi-
vidual acts, in those cases, in which the disorder is, as it is
most frequently, insanity quo ad hoc; at  the  same time,
though partial insanity does frequently prevail, it must be
watched always  with infinite care, and it seems scarcely
possible to extract from  any  particular case of this kind,
that which will apply to any other.
  In Coglan v. Coglan,  the judges seem to have thought
that there was a clear interval, and this was proved by per-
sons in the habit of watching  the patient.   Such persons
can best prove whether the derangement had entirely ceas-
ed, or whether there was a perfect interval.  By a perfect
interval, I do not mean a cooler moment, an abatement  of
pain or violence, or of a higher state of torture ; a mind re-
lieved  from excessive pressure; but  an interval in  which
the mind having thrown off the disease, had recovered its
general habit.
  In Greenwood v.  Greenwood,  the  question  turned upon
this; whether a mind sound to general, purposes,  in the
doing of a particular act,  being influenced by a  false imag-
ination, an unreasonable persuasion  was not sufficient to 
CONTRACTS BY DEED, &c.             109
avoid such act.  A question of so great extent involves se-
rious consideration.
  The present case, however, is free from all difficulties of
that kind, for there is clear and distinct evidence of the
party having been, at one period, mentally  incompetent.
The woman who attended her, was hired to attend, and did
attend her, as  an insane person; the medical man who at-
tended her, prescribed for her as such.  Nor is there any
contradiction in the evidence in this case : they who repre-
sent her as having talked reasonably,  about her property,
certainly apprehend that such short  effort  of her  mind
made her capable of disposing* and that the disposition to
her husband was proper; they did not  mean to circumvent
a weak mind ;  but I think they scarcely watched the means
with  sufficient attention : their  characters  are  not im-
peached.
  It is, however, an agreed point, that she was once un-
doubtedly insane. But it is said,  that this particular dis-
ease, furor uterinus, ought to be deemed a bodily disease ;
but if it were,  and the effect of it produced  this constant
habitual derangement of mind, it comes to the same end.
The jury, however, would not act upon this; the evidence
does not prove it; and the medicines administered  were
i>ot applicable to such complaint: the jury were to try this
question, with  reference to the effect of an instrument, re-
vocable in its nature; and therefore the directions,  as to
the time, were necessary.
  Nothing can more circumstantially mark an habitual de-
rangement, than the conduct of the  husband with Mr.
A---------.  It is impossible to overlook what was the
opinion of the husband ; therefore it comes to the question
of a person habitually deranged;  and whether there was
between the paroxysms of the disorder any clear, decided,
lucid  interval, I think it would be extremely dangerous  to
all  property to say in such a esse.  The verdict is clearly 
110             DISABILITIES  INCURRED.
 wrong in saying, that she was not insane at all, as  all the
 witnesses agree that she was habitually insane; but wheth-
 er there was a clear lucid interval,  is a much nicer ques-
 tion.
  Upon a new trial, the jury found for the plaintiff.   Atty
 v. Parnther.
   So likewise it was held, that  if one  who becomes non
 compos mentis by accident be disseised, and  suffer a de-
 scent, and afterwards recover his memory and understan-
 ding, yet he  shall  never avoid  the descent:  and  so ik is a
fortiori of one that hath lucid intervals.(i)
   If an ideot contract for necessaries in house-keeping, he
 is bound to pay for them.(/c)
  The right and interest in the profits of an ideot's estate,
 has relation back to the time of the office found, not from
 his birth :(l)   but the office shall relate back to his birth
 in some  respect, viz. to avoid all mesne acts done by  him :
 for the king has the custody of  an ideot, not  in respect of
 any seigniory, but  jure protectionis suee  regice, because his
 subject is not able to govern himself, nor the lands and te-
 nements which he has; and his protection  begins by the
 office found : and  by statute Ed.  III. c. 9. the King shall
 take the profits from the time  that he is charged with the
 finding of the  ideot and his family necessaries, and that
 is after the office found.
  If therefore the king  should grant, to one  that intrudeth
 upon the possessions, or takes the person unlawfully, that
 he would not prevent them, such a grant would be void :
 for these are acts of justice and offices of a king, which he
 cannot put off, cessat regnare si non vis judicare ; and in this
 matter he is never supposed by law ill affected, but abused
 or  deceived ;  for eadem  presumitur mens  regis  quce est
juris, (m)

  (i) Co. Lit. 247.                (/) 8 Co. 170. 1 Fon. Eq. 55.
  (k) 1 Roll. Abr. 357. 2 *id. 112.     («i) Hob. 155. 
CONTRACTS BY DEED, &c
111
  A devise to charitable uses by a lunatic, in not aided by
43Eliz. c. 136.
  Many that have capacity to take,  have no ability to en-
feoffe—ideots, madmen, deaf and dumb,  and blind, from
their birth:  the  testaments  of these may be avoided.(n)
But any  one deaf, dumb, and blind, if he hath understand-
ing and sound memory, and express  his intention by signs,
may enfeoffe.
  If lands fall by descent to a man that is non compos, dur-
ing his incapacity, his heir may enter instead of him, for
he  cannot plead his insanity :(o)  and if he  makes  a feoff-
ment, he cannot  enter and reclaim by writ dum non fuit
compos mentis, for he cannot be allowed to stultify himself,
but his heir at his death may have such writ, and thereby
avoid the deed.(/>)
   If an ideot make  a feoffment in fee, he shall, in plead-
ing, never avoid  it, by saying that he was an ideot 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
it for benefit of the ideot.(</)
   So it is of a non compos mentis by accident, and of him
who enjoys lucid intervals, if an estate be made during his
lunacy : for the parties themselves  cannot  be received to
disable themselves ; yet a jury may find the truth.
   But if any of them aliene by fine or recovery, this shall
not only bind himself but his heirs also.(r)
   Several opinions were entertained relative to thi§ doc-
trine of alienation, or other act of a man that is  non com-
poses)
    1.  That he may avoid his own act by entry  or plea.
    2. By writ, and not by plea.
    3.  By writ, or plea, of which  opinion was FitzherberL
   (n)  Co. Lit. 42. b. Brae. 100. 120, Brit. 28. 66. &c.
  Brit 88. Fl. 11. 10                 (r) Stamf. Pr. 34. F. N. B. 202. i).-
   (o \  Co. Lit  24. b. Reg. 228.      4 Co. 124.
   (ft) Ibid. 247. b.                 (*) Co Ltt. 247.
   (9)  Co. Lit 247. b. F.N.B. 20?. 
112             DISABILITIES INCURRE D.
  4. And Littleton is of opinion, that neither by writ nor
by plea, nor otherwise, he himself shall avoid it, but  his
heir (in respect his ancestor was  non compos mentis) shall
avoid it by entry, plea, of writ; and herewith the greatest
authorities of  our  books  agree:  and was  so resolved  in
Beverly's  case; but this holdeth only in civil cases.
  Although they  cannot stultify themselves, yet all con-
tracts with them after office found, are at the peril of those
who deal  with such  persons :  and if the  commission be
superseded or discharged, the lands revert to the lunatic.
but this must be at the suit of the committee.(0
  A grant of persons  out of their  right mind, whom  we
call non-sane memory, or non compos mentis, is avoidable ;
it may be avoided at any time,  by entry, action,  &.c. if
they deliver it with  their hand,  as in a feoffment, and
themselves make livery, or a  gift of goods, and deliver
them  in person.   But if they deliver it not with their hand
as a grant of rent, advowson, &c. or a feoffment by letter
of attorney, &c. it is  merely void, and nothing passeth ;
for  the power is void, so as they may have a triu; ur assise,
and remain tenant to  the lord, and  therefore shall be  in
ward, notwithstanding any feoffment.^)
  The mere execution  of a  deed  is absolutely  void as
against his heir, who may plead the disability,  though
the lunatic cannot plead it himself.(x)
  So of a grant made by one that hath no understanding,
as  if  he  be  born dumb, deaf,  and blind :(y) but one
dumb, or  born dumb and deaf, may make a good  grant;
for divers may  have  understanding by  their sight only,
although  they be dumb and deaf.
  Yet it is said,  such grants  and  surrenders are void  ab
initio,  and the heir  may maintain trespass against the
  t) 3 Ba. Abr. 539.                (r) Touch. 204.
  u) Comb. 468. 2 Vent. 204.3 Mod.    (y) Perk. 5. s. 25. Jenk. 222. Car-
304. 310. Sbo. Par. Ca- 153.1 L. Rav.  ter 53. Finch. 102-3. Touch. 204.
313. 4 Rep. 125. a.
 
CONTRACTS BY DEED, SfC.            113
grantee for distress for a  rent  charge: but if the distress
had been during the life  of the grantor, it could not have
been avoided.(2)
   Livery  and  seisin  bar the lord of his  escheat;  for
though it might be avoided by the heir,  because he was
privy in blood, yet it  could not  be avoided by one who
was only privy in estate.(a)
   In  every good feoffment there must be a good feoffor
able to grant; a feoffee able to take ;  and a thing granta-
ble: therefore, whosoever is disabled by the common law
to take, is  disabled also to make a testament, gift,  grant,
or lease ; and  many also  who have capacity  to take by
such  conveyances,  have  no ability to  grant them;  as
idiots, &LC.(b)
   All grants, gifts, &c. made by deed in pais by those who
are non sance memories, are good  against  themselves ; but
voidable by their heirs, executors,  or those that have
their  estate, (c)  But if it be by fine, it  is good and una-
voidable, for that is done of record, and binds themselves
and all under them.(d)  Of this more hereafter.
   But a rent charge, granted by a lunatic, may be  avoid-
ed by the heir, and held to be discharged.(e)
   A  surrender by non  compos is  likewise void ; but the
contingent remainder  is not destroyed.(/)  The cases of
infants and non compos are parallel in all things, except that
the latter cannot stultify himself to avoid his grant.   The
reason why feoffments of infants and non compos are void-
able only proceeds from the solemnity of livery of seisin in
the sight of the country, which takes notice of the  notori-
ous alteration of the possession;  but contra  of a deed,
which may be delivered in a private manner.

   (z) Perk. p. 21. 3. Mod. 304.       111. 124.
8 Finch. 102.                    (e) Shep. Abr. Tit.  Ideot.
   (a) 4 Cruise, Dig. 20.             (/) Carth. 435. 2 Salk. 4>7. 1 Ld.
   lb)1 4 Cora. 291. Cruise, Dig. 20.    Ray. 313.  Com. 45. Sbow. 150.  2
   (c) Co. 123.                  Ch. Ca. 103.  2  Vera. 189.  Shep.
   (rf) 1 Inst.  24*.  2—483.  5 Rep. Guide, 118
1G 
114
DISABILITIES INCURRED.
    The word dimisit in the writ dum, &c. means only a fe-
  offment with livery by himself, for feoffments and fines
  were the ancient conveyances, and the only ones used in
  those days.
    It is not for defect of right that anon compos cannot avoid
  his own feoffment; but by reason of his personal incapaci-
  ty, that  no man shall  be  able to stultify himself, (g)
  Thompson v. Leach.
    This is founded on the doctrine laid down by lord Coke:
  (h) Every deed, feoffment, or grant, which any man non
  compos  mentis makes,  is avoidable, and yet  shall not be
  avoided by himself, because it is a maxim in law, that no
  man of full age shall, in any plea to be pleaded by him, be
  received by the law to stultify himself, and disable his own
  person:  because, when he recovers his memory, he can-
  not know what he did when he was non compos.
    If the common law had given a writ of non compos mentis
  to him who has  recovered his  memory after alienation,
  certainly the law would have given him remedy  for main-
  tenance of himself, his wife, children, and family, although
 he recovered not his  memory, but continued non compos
 mentis.                                     f
   Those who are privies in blood may shew the disability
 of their ancestor, and those in representation the infirmity
 of their  testator or intestate;  but those who are only privy
 in estate, or  tenure, cannot do it; therefore, if donee in
 tail, being non compos,  make a  feoffment  in  fee,  and die,
 without issue, the remainder-man shall not enter or take
 advantage of the disability of  the donee: the same law
 holds as  to the lord by escheat; if his tenant, being non
 compos, makes a feoffment in fee, and die without heir, he
 shall not avoid it. [But it is otherwise as to fines, of which
 hereafter.]
   The avoiding these acts is founded upon the words of
  (g) 1 Rav. 313. Comvn. 45. Carth.    (A) 4 Co. 123. 1 Ja. 1.
436. 
CONTRACTS BY DEED, <$-c
115
the statute(i), u after the death of such ideots, he shall ren-
der it to the right heirs, so that such ideots shall not alien,
nor their lives  shall be disinherited."   The method  by
which the ideot of  full  age might avoid  them was, if he
was found ideot by a nativitate, and had aliened his lands
by scire facias against the alienee, whereby the lands were
seized into the king's hands, and the inheritance re-invest-
ed in the ideot:  for the  king could not render them to his
right  heirs, nor have possession  to his own use, unless by
the office and seizure such conveyance be destroyed : and
that doth not impugn the maxim of the common law : for
in this case the ideot, in no plea that he can plead, shall
disable or stultify himself;  but all this is found by office by
the inquisition, and verdict of the king's suit; and such of-
fice when found shall have relation to a tempore nativila-
lis to  avoid all mesne acts done by the ideot, as feoffments,
releases, &c.
   Wherefore  after office found  all gifts made by him, of
his goods or chattels, and all bonds, are utterly void : and
if he be sued upon any such bond, or writing, the king, by
his writ, so long as the office stands in force, reciting the
office, shall send a supersedeas  to the justices where the
suit is commenced.
   Although the king cannot have the custody of his copy-
hold land, that being an estate for life by the common law,
and would be  of great prejudice to the lord  of the ma-
nor ;(&) yet an  alienation thereof by the ideot, after office
found, is void.(Z)  So alienations, tec. before office found,
shall be avoided afterwards, because  no laches shall be
accounted in the king, nor any prejudice accrue to the ide-
ot for not suing the office before.
   But if he die  before office found, no  office can be found
afterwards, and the king cannot be  entitled, by the lan-
guage of the writ.
  ii) 17 Ed. II. c. 9.     (k) Hard. 434.  Sty. 21.     (') Dyer, 30-' 
116
DISABILITIES INCURRED.
  The same principles apply to the case of  lunatics, as to
alienations; though the king has a different interest; for,
as to the ideot, rex habehit custodiam; and as to the latter,
who may recover, rexprovidebit ; and the principle is, that
the king may provide, that he who wants reason, shall not
aliene his lands, nor waste his goods.(m) Beverley's case.
  The principles in this case have been the guide  to sub-
sequent discussions and determinations, and were recog-
nised in  Thompson v.  Leach, abovementioned, to  render
void a deed of surrender, with the distinction already no-
ticed between a feoffment and livery, propriis manibus :(n)
and that which is void, ab initio, cannot pass any estate to
the surrendree or grantee.
  It was  argued in  Thompson v. Leach, that the cases of
lunatics and infants go hand in hand, and the same reason
governs both; their acts are void, because they know not
how to govern themselves, and they have  a remedial writ
to avoid their own intention ;(o)  which would  seem to en-
large the determination in Beverley's case, where the deed
was avoided by any other person than himself.
  It seemed to be assumed,  that v/hen a lunatic recovers,
he may, like an infant, consider his acts done during his
incapacity, and  avoid them by shewing his indisposition
by the visitation  of God, as well as  pleading duress from
man, to avoid compulsory acts.(p)
   BMt the court determined, that the grants of infants and
persons non compos are  parallel both in law and  reason,
and there are express authorities  that a surrender made
by an infant is void, therefore a surrender made by a per-
son non  compos  is likewise void, (q)   Some  have  endeav-
oured to  distinguish between a deed which gives only au-
thority to do a thing, and such as conveys an interest by the
delivery of the deed itself;  that the first is  void, and the
  fm) 4 Co. 123.                  (/>)3M.;d. 308.
  (;i) Car. 435.                  (©) Cro. Car. 502.
  to) F. N- B. 202. Reg. 2,38. 
CONTRACTS BY DEED, £c.            117
 other voidable.   But the reason is the same to make them
 both void, only where a feoffment is made by an infant it
 is voidable because of the  solemnity of the conveyance.
 If Leach had made a feoffment in fee, there had still re-
 mained in him such a right, which would have supported
 the  remainder in contingency.
   The surrender was therefore void, and all persons might
 take advantage of it; and this  decision was affirmed on
 error in the house of lords.(?)  (1690).
   The boundary is so narrow and strait  between a per-
 son  who is  non compos, and one who is so  weak as  to
 require  the  caution of a near  relation not  to sign any
 writing or paper whatsoever, that it  ought not to over-
 turn the  equity of an  heir  at law, because  some of his
 writings go  so far as  to give such instances  as amount-
 ed  to ideocy or lunacy.  There cannot be a greater in-
 stance of weakness than such a caution; it is like a nurse
 warning a child not to go near the water for fear of being
 drowned.  Besides, in the case of Sir J. Lee, it was prov-
 ed that  he was addicted to drinking  likewise, which ad-
 ded to his natural debility;  that he was almost dark; that
 one eye was  entirely gone, and but a small glimmering of
 light from the other.   They had  married him without his
 so much as knowing he was so, or even without the decen-
 cy of  making a  previous proposal to him, which is one of
 the  strongest  marks of weakness, and  liability to  imposi-
 tion ever  met with.   His repeating  scraps of latin, and
 reading  classic  authors, is   no  proof of sanity, because
 what a person learns in his youth leaves a lasting  impres-
•sion, and the traces of it are never entirely worn out.
   The inquisition had not  evidence sufficient to find him
 lunatic, but  the  court  pronounced him weak upon these
 circumstances, and a conveyance of his estate, under tin.-.
 unfortunate  situation,  was deemed the  more vulnerable
(r) 3 Mod. 310. Ca. Adj. 150 
118
DISABILITIES INCURRED.
from the grantee having such a power over  him, that his
name only would  quiet him: its provisions also were ob-
jectionable ; it restrained him during life, from taking any
fine  or  leasing without reserving the full rent; and the
deed was not to be revoked by him, but in the presence
of three particular persons, or their executors or adminis-
trators.   Thus he was made to disinherit his heir in favour
of persons who were no relations;  for whom he had nev-
er declared  any kindness, nor had they merited  any at
his hands.
   A voluntary settlement, and the grantor himself so fet-
tered that he was not  able to raise  one shilling, and as
much confined as if it had  been a marriage settlement for
a valuable consideration.   Had there been no such pow-
er of revocation, that would have been almost of itself a
reason  to have  set the' deed aside; therefore, for form's
sake, one was inserted: but there was  no proof that  he
was acquainted with any of the gentlemen named, or how
could he have got them all together, or forced them if they
refused ? Neither draft  nor deed were  read to him, but
one part was executed, not left with him, how could he re-
member the  revocation ?  The grantee took it away with
him, which amounts to the same as if it had been an abso-
lute conveyance, without any power of  revocation at all:
besides, it contained reservations of annuities to the attor-
ney, &c.
   It is true, if a man be not insane, but only weak, he may
do an act which will bind him;  there cannot be two rules
of judging in law and in equity, upon the point of insanity.
   As to the possibility of his having any intention to dis-
inherit  his heir, yet if that intention  can be traced up to
fraud and imposition, this will fetch back and revest it in
his heir, with a saving to his creditors.   The deed was or-
dered to be delivered, and the grantee to pay costs.  And
it  was  declared, that an attorney or solicitor cannot ex- 
CONTRACTS BY DEED, he.
119
cuse himself, by alleging that he only followed instruc-
tions, from preparing a fraudulent deed, and therefore he
was also directed to pay costs.(s) (1741.)
   The  distinction raised by lord Coke in  Whittingham's
case(f)  between  privies in  blood and privies  in estate, a-
voiding the acts  of their ancestor non compos, was denied
to  be authority  in the subsequent  case of Thompson v.
Leach, where(u) it was said that this distinction was foun-
ded upon no manner of authority, but was only his extra-
judicial opinion ;  for there  is no  reason to be  given why
privies in estate should not  avoid such acts done by their
ancestors, as well as privies in blood, because the incapac-
ity of the ancestor goes to both.
   A contract and purchase, at a lucid interval, eight years
before the inquisition, when the party was accustomed to
buy and sell, was avoided, for the inquisition took a retros-
pect of seventeen years ;(x) but the party had liberty  to
traverse the inquisition ; but, where it was done before the
inquisition, with the approbation of his only son, the court
maintained it, but he must be a party, sed secus of an ideot.
(y)  There is a difference between a will and a deed ob-
tained from a weak man, and  upon misrepresentation or
fraud ;  this is not a sufficient reason to set aside such a will
jn equity ; but a deed which  is not revocable, as a will,
ought to be set aside, (z) (1725.)
   Where a weak man gives a bond, if there be no fraud  or
breach  of trust in obtaining it,  equity will not set it aside
only for his weakness, if he be compos mtntis.(a)  Neither
will the court measure the size  of people's understandings
or capacities, there being no such  thing as an equitable
incapacity where there is a legal capacity.  But a breach
of a trust is of itself evidence of the greatest fraud, because

  (,) 2 Atk. 327. 2 P. W. 205         (y) 2 Atk. 414 1 Cha. Ca. 153.
- \A 8 Co 42.                    (*) Ca. Eq. Abr. 406. 2 Vern. 700.
  fiO 3 Mod. 307.                 S P. W.  270. 208.
  (x)lCha.Ca.H3.                (a) 3 P. W. 130. 
120
DISABILITIES INCURRED.
a man, however careful otherwise, is apt, to be off his guard
when dealing with one in whom he reposes a confidence;
and on such ground the court will relieve against such a
bond.  Lord Cha. Talbot 1734.
  Thus it appears, in the words of sir  W.  Blackstone,(b)
that  ideots and persons of nonsane memory, &c. are  not
totally disabled, either to convey or purchase, but submodo
only.  For their conveyances and purchases are voidable,
but not actually void.   The king indeed  on behalf of an
ideot may avoid his grants or other acts. He then proceeds
to trace the progress of the opinion of lord Coke, of a man
pleading his own disability.(6)
  In the time of Edward I. non compos was a sufficient plea
to avoid a man's own bond, and mentions the  writ above
stated.(c)   But under Edward III. a scruple began to arise
whether a man should  be permitted to blemish himself by
pleading his own insanity ;(d) and afterwards a defendant
in assise having pleaded a release by the plaintiff since the
last continuance, to which the plaintiff replied, on terms as
the manner then was, that he was out of his mind when he
gave it, the court adjourned the assise ; doubting whether,
as the plaintiff was  sane both then and at the commence-
ment of the suit, he should be permitted to plead an inter-
mediate deprivation of reason ; and the question was ask-
ed, how he came to remember the release, if out of his sen-
ses when he gave it.(e)
  Under Henry VI. this way of reasoning, (that  a man
shall not be allowed to disable himself by pleading his own
incapacity, because he cannot know what he  did  under
such a situation) was seriously adopted by the  judges in
argument, upon a question  whether the heir was barred
of his just right of entry by  the feoffment of his insane an-
cestor^/)   And from  these loose authorities, which Fiiz-
  (b) 3 Com. 291.                 (d) 5 Ed. 111.  70.
  (b) Co. Lit. 247.                 (e) 35 Assis.  pi. 10.
  (c) Brit. c. 28.  Co. 66.            </; 39 H. VI. 42. 
CONTRACTS BY DEED, Sp.             121
 Herbert does not scruple to reject as being contrary to rea-
 son,^) the  maxim that a man shall not stultify  himself,
 hath been handed down as settled law,(/i) though later o-
 pinions, feeling the inconvenience of the rule, have in many
 points endeavoured to restrain.(i)
   And clearly the next heir  or other person  interrested,
. may, after the death of the ideot  or lunatic, take advan-
 tage of his incapacity and avoid the grant.(fc)
   And so too, if he purchases under this disability, and
 does not afterwards, upon  recovering his senses, agree to
 the purchase;  his heir may either waive or accept the es-
 tate at his  option.(/)  For these persons are under the
 protection of the  law; which will  not suffer them  to be
 imposed upon  through the imbecility of their present con-
 dition ; so that their acts are only binding in case they be
 afterwards agreed to when such imbecility ceases.
   Yet the guardians or committees of lunatics, by statute
 11  Geo. 111. 20. are empowered to accept of surrenders
 and to renew in their  right,  under the directions of the
 court of the chancery, any lease for lives or years, and"
 apply the  profits  of such  renewal  for the benefit of such
 lunatics, their heirs or executors.
   The want of this power was  frequently detrimental to
 them and their families,  and always prejudicial to the per-
 sons entitled to the renewal.
   All fines and premiums  thereon are, or so much as shall
 remain unapplied at the lunatic's death, to be considered
 as real estate, unless the lunatic shall have been tenant for
 life  only, and in that case  as personal. Sect. 3.
   In like manner where lunatics are interested in or enti
 tied to leases for lives or years, they, or their committees,
 are empowered under the  direction of any court of equity
   (<?■) F. N. B. C02.               Ca. 279.
   (h) Lit. s. 405. Cro. E. 393. 4 Rep.   (k) Perk. L. 21
 123. Jenk. 40.                   (I) Co. Lit. 2
   (i) Comb. 469.  3 Mod. 310.  1 Eq.
                       1? 
122              DISABILITIES INCURRED.
 to surrender the same, and take new leases of the same
 premises, upon the terms of the lease surrendered, or oth-
 erwise as the court may direct, (m)
   And the fine and charges thereon shall be advanced by
 the committee out of the lunatic's estate, or may be made
 a charge thereon with interest; and the new lease is to be
 held upon the same trust as the former.
   In a bill filed to avoid a lease, on  account of lunacy of
 the lessor deceased, the attorney general must be a party .(n)
   The court will not interfere to set aside a contract made
 fairly and without notice  of the purchaser's  insanity,(o)
 especially where the finding upon  a  traverse was general
■ and not precise as to the day of the contract, as in Femes'
 case ;(p)  where nothing in his conduct excited any suspi-
 cion of his situation, but on the contrary he  appeared in-
 telligent,  understanding the business,  and conducting him-
 self with  singular propriety.   The court's  interference
 must  depend upon circumstances, and no general rule can
 be laid down upon it.   With regard to purchases that
 have not been completed, and cases in which it is possible
 to replace  the parties,  there is no reason why the court
 should not interfere to administer its ordinary equity; as it
 can do that in general in a much  better way  than  a court
 of law; even  supposing that court would consider the mere
 law of the case in the same way as this court would.  But
 there may be other cases in which the inconvenience would
 be so great, that this t:ourt will leave  the party to law.
 The inconvenience of carrying back the finding is extreme
 ly great,  if that is to be followed through all the legal con-
 sequences ; assuming it to be the legal consequence, that
 every act of the lunatic  subsequent  to that  time is abso-
 lutely void, nothing can  be more inconvenient than for this
 court to give  effect to that legal consequence; setting aside

   (m) 29 G. II. c. 31.               (o) 9 Ves. 178.
   (n) Finch 135.                  (/>) 5 Ves. 832. 
CONTRACTS BY DEED, #c.
123
every  dealing in the course of his trade; giving an  ac-
count of all he lost;  the parties who have dealt with him
to take the chance oi the transaction, being a  losing  one
and make it good; and the transaction being strictly void,
this court acting upon that, and though the  parties cannot
be replaced, obliging them to refund; though producing
the great injustice, that they cannot have that for which
the money was paid, or cannot have  it in  the same man-
ner.   That would  be most inequitable and unjust, and if
this was the principle, must be  acted upon in  all cases
where the lunacy is carried  back ten or twelve years.
   There  is no ground for a court of equity to advance a
remedy where it is impossible to exercise the jurisdiction,
so as to afford any chance of doing justice to the other par-
ty.  Where this court does interfere, it endeavours to put
the parties in the  same situation; that is, where the con-
tract  is void.  Bill  dismissed with  costs.—Grant, master
the rolls.  1804.
   All acts done  during a lucid interval are  to  be consider-
ed done  by a person perfectly capable  of contracting,
managing, and  diposing of  his affairs at that period :(q)
this  has  more frequently occurred upon wills, and  they
have always been established; it must be the same as to
contract,  or  any disposition of property: if he had made
an absolute conveyance, it would have been good, if made
in a lucid interval.  In the  inquiry as to competence, evi-
dence should be found as to his manner of  life at the time,
the history also of the contract, and  the  circumstances of
the  negociation.  Something material to the  competence
may arise or result from the very mode in which the ne-
gociation was conducted: but it is for a jury  to determine
what was the degree of efficiency and competence of his
mind at the time.
   And, general  lunacy being established, the proof  is
- (o) 9 Ves. 610. 
 124             DISABILITIES INCURRED.

 thrown upon the party alleging a lucid interval; and must
 establish, beyond a mere cessation of the violent  symp-
 toms, a restoration of mind, sufficient to enable the party
 soundly to judge of the act: this is an enquiry much more
 fit  for  examination,  viva  voce,  before a jury, than upon
 written depositions.
   If there was a valid and binding contract, the superven-
 ing incapacity of one  party cannot  deprive  the other of
 the benefit.
   These principles were laid  down by sir W.  Grant,
 master of the  rolls, who sat for  lord Edon,  C.  (1804)
 in a  case where a bill was  filed for  a  specific perform-
 ance  of a contract,  over-reached by a  commission  of
 lunacy,  the plaintiff*  not having  traversed the  inquisi-
 tion,  an issue  was directed, whether the defendant was
 a lunatic at the execution of it; and if so, whether he had
 lucid intervals, and whether  it was executed during a lucid
 interval; the difficulties in executing  the  contract,  which
 was for the sale of an estate vested in the lunatic, viz. that
 the price was  to be fixed  by persons to be nominated, not
 appearing  strong enough to preclude  the previous inquiry
 with a view to performance,  the plaintiff being willing  to
 take the title,
  A lunatic.who is lord of a manor, may grant copyhold ten-
 ures for any time, according to the custom of his manor, as
 any other person may do,and the estates made by him are un-
 avoidable.^)  Though this was formerly held, it admits of
 considerable doubt, from the principles since  established.
  In respect to copyhold estates, every lord  of a manor
 who is in lawful possession, and has  a- lawful estate in a
 manor,  may make voluntary grants of copyhold  lands,
which will  bind succeeding lords.(/i)   If therefore a lord
labours  under  any personal  disability, such as ideocy or
lunacy,  he  may, notwithstanding, make copyhold grants,
 (f)S,hcP;109-  nl             Rep. 63. b. r;ilb. Ten. 196.  faltli,
 (A) Co. Cop. s. 34. 4 Rep.23. b. 8  R-;,d. 48, 9. 1 Cruise pi-. 314. 
CONTRACTS BY DEED, fyc.            125
provided they are warranted by the customs of the manor:
but he must be in possession at the time of the grant.
  And his steward may make voluntary grants, notwith-
standing the subsequent disability of the lord, who appoint-
ed him.(i)
  The committee cannot grant, having no estate in the ma-
nor, but the steward may, according to its customs.(/c)  Yet
the steward may be restrained  by  order from any- such
grant, without the privity of the committee, nor until the
court have been acquainted with it:  this is  offered as a
caution, as the steward's grant is good in law.
  But, notwithstanding all the preceding arguments, great
injury frequently happened to persons  of unsound minds,
and their creditors were  delayed in obtaining their de-
mands, for want of sufficient power to apply their proper-
ty in discharge of their debts and engagements; an act
was therefore passed in 1803,(/) directing that the great
seal being entrusted with the care and commitment of the
persons and estates of lunatics in England and Ireland, shall
have power to order their  freehold and leasehold estates
to be  sold, or charged and incumbered by way of mort-
gage or otherwise, as shall be  found most expedient for
raising such sums as shall be necessary for  payment  of
their debts, and for performing  their contracts or engage-
ments, and the costs attending the same; and to direct the
committee to execute such conveyance, and procure such
admittance, and make such surrender of copyhold lands, as
the great seal shall direct.
  S. 2.  Any surplus monies to be so raised, are to be ap-
plied in the same  manner, as the estate sold would havf
been applied before this act.
  S. 3. And all powers of granting leases of lands, vested
in the lunatic for a limited estate only, may be executed by
the committee, under direction of the court.
  (i) 1 Cruise Dig. 317.             (0 43 G. 3. o. 7v
  (k) Loy, R. 47. 
126
DISABILITIES INCURRED.
  S. 4. And, in order  to encourage buildings, repairs, or
improvements,  the great seal may direct the committee of
the estate to make such leases of the fceehold,  copyhold,
or leasehold estates, according to his interest, and the na-
ture of the tenures thereof, for such terms and  conditions
as the great seal shall direct.
  S. 5. All such acts done by the committees, by order of
the great seal,  shall be as valid and binding against the
lunatic, and all persons claiming under  him, as if he were
of sound mind, and had done the same.
  S. 6. But this  act is not to subject any lunatic's estate
to debts or demands  of creditors, otherwise  than as they
are now  liable to by due course of law ;  but only to au-
thorize the great seal to make such orders, when it shall
be deemed for  the benefit of the lunatic.

                  Section X.   Fines.

  Notwithstanding the words of the statute of Edward III.
are general and emphatical, yet if a lunatic alienes by fine
or recovery, it shall  bind him :(ra) for  it is held necessa-
ry to distinguish between their acts done in pais, and those
solemnly acknowledged on record ;(■«) neither the  lunatic
himself nor his heirs, or executors, can  vacate any  act of
his done  in a court of record ;(o) for it then becomes mat-
ter of record which cannot be avoided by a bare averment
of non compos, from the inconvenience which would ensue ;
and such averment is  against the  office and dignity of a
judge, who ought not to take any cognizance of a fine, or
recognizance of such a person : yet when it is once receiv-
ed, it shall never be reversed, because the record and judg-
ment of the court being  the highest evidence in the law,
the conusor is presumed to be at that time capable  of con-

  (m) Cro. El. 187.  398. Co. Lit. 247.   (n) 2 Ba Abr. 197.
a. 4 Co. 123. 2 Inst. 483.            \0) 4 Co. 121. Bro. Fines 79. 
FINES.
127
 tracting, and therefore the credit of it is not to be contes-
 ted, nor the  record avoided by an averment against the
 truth of it. (/>)
   So it is in the case of a fine by an ideot, no office finding
 him  ideot a  nativitate will be  sufficient  to reverse the
 fine;(<7) for that were to lessen the judgment in courts of
 record, by trying  them  by other rules than themselves :
 and this fine will supersede the king's prerogative.(r)
   And as fines ought not to be taken  from lunatics and
 ideots, so neither from old doating men who have lost the
 use of their reason; but if they be weak or infirm through
 age or sickness,  that will be no sufficient cause to refuse
 them :(s) ideocy may be judged of by the justices on levy-
 ing the fine; and if they do admit them, and a fine be levi-
 ed by such persons, the  fine is said  to be good and una-
 voidable.
   But a purchase under value by a lunatic  was set  aside
 notwithstanding deeds, fines, and recoveries.(t)
   The same capacity for  a deed is  required for a fine;(«)
 and any  person  who hath capacity  to take by grant, or
 may be a  grantee  by deed, may take by  fine and be a
 conusee therein, (x)
   But from the doctrine laid down in  the preceding pages,
 which tends to show the deed on  which the fine is founded
 to be in many cases^avoidable, it seems difficult to recon-
 cile the distinction between that and  the fine  and the
 consequences which will ensue; for if the fine is  not a-
 voidable, a fraudulent grantee will be in by the  fine but
 not by  the  deed; and  if  the  inquisition has  relation
 back to the birth  of an ideot, or to any number of years of
 a lunatic, and therefore avoids his acts,  it seems that the
judge, at the  levying of the fine, and  the  inquisition of
 lunacy operate as opposing jurisdictions.
  (p) 3 Ba. Abr. 197.             197.
  (y) 4 Co. 126  And 193.           (t) 2 Vern. 678.
  (r) Croflip- H7.                 (w) Touch. 56.
  (») West Fines. S. 4. 3 Ba. Abr.   (x) Ibid. 7. 
' 23             DISABILITIES INCURRED.
   If an ideot or lunatic levy a fine to the kingjmd declare
the uses of it, he is bound, that being part of the opera-
tion of the fine.(y)
   However tenacious courts of law have been of the au-
thority of their records, and have even maintained a fine,
when  duly recorded, acknowledged by an ideot, yet in
equity relief has been granted to  the  remainder-man a-
gainst  a fine, even against a purchaser; :(z) and though in
case of fraud it does not set aside a fine, yet considering
those  who have taken it under such circumstances as trus-
tees, decrees a reconveyance of  the  estate to  the per-
sons prejudiced by the fraud ; and though it does not dis-
tinctly appear to be  the practice in the case of fines levi-
ed by idiots and lunatics, yet from the argument in Day v.
Hungat,such may be inferred to be the rule of proceedkig.(a)
   Although a fine duly levied  is  as effectual and binding
in a court of equity as in a court of law, because it is one
of the  common  assurances of the realm, and was origin-
ally instituted for the purpose  of securing those  who
were in possession of lands ;(fe)  yet if any fraud or un-
due practice  appears to have been used  in obtaining a
fine, the court of chancery has then a power of relieving
against it, as much as against any other conveyance; for
although it might be extremely improper and inconvenient
to admit of an averment  in a court of common law, against
a  fine obtained by fraud, because  it would be dangerous
to permit the evidence of a record to be questioned in any
case whatever; yet as there is  a method in which relief
may be given in cases of this kind, without contradicting
the principles of the common law, it is highly proper that
a court of equity should  adopt it, and  the lord chancellor
appears to have exercised this jurisdiction as early as the
the reign of queen Elizabeth.(c)
  (y) 2 Co. 58. 10 Co. 42. Hob. 22 k    (6) 5 Cruise Dig. 214.
  (z) Tothill 42.  2 Vern. 678.        (c) Day t. Huns<ate, 1 Roll. Rep
  (a) 1 Woll. Rep. 115.  2 V-.-rn.  307.  115. Welby v. Welby, Tothil 99.
—lVez.  289. Prsr-.  Cha. 150. Foro-  13 Vin. Ab. "7:1.
Eq. 1. 53. 
FINES.
129
  The court of chancery however does not absolutely set
aside a fine  so obtained, nor does it  send the party ag-
grieved to the court of common pleas  to get  it reversed;
but it considers all those who have taken an estate by such
a fine, with notice of the fraud, as trustees for the persons
who have been defrauded, and  decrees a re-conveyance
of the lands, on the general  ground of  laying hold of the
ill conscience of the  parties, to make them do that which
is necessary for restoring matters to their situation.   But
with respect to any technical error in a fine, or irregulari-
ty of the commissioners who have  taken  the acknowledg-
ment of it, it is  a matter only cognizable in the court of
eommon pleas, because a fine, being of the same nature as
a judgment,  is properly examinable in  that  court only
where it is entered, 'd)
   In what cases laches shall  prejudice an ideot, or non com-
pos mentis, some have taken  a difference between a bar of
his right and a bar of  his entry; for in case of bar of his
right, his laches shall not prejudice him but in such special
case, if he becomes of unsound memory he  shall  shew
that he was non compos.  For if he be disseized and the dis-
seisor levy a fine, he is not bound thereby, but may enter;
for the stat. de modo levandi fines (18 Ewd. I.)  which is but
a declaration of the common law, bars  not only all parties
and  their heirs, but all other  persons of full  age  out of
prison and of good memory, and within  the four seas, on
the day it was levied, if they do not put in their claim or
enter within a year and a day.
   So by 4 Hen.  VII.  c, 24. If a  man levies a fine with
proclamations, and at the time levied he who had the right
was non compos, and afterwards recovers his   memory, he
ought to  pursue his action  or make his  entry within five
years after he becomes of sound memory, and. in pleading

   (d) Wright v. Booth, Totbill 101. Vezey 289
 St. John v. Turner, 1 Ab. Eq. 259.  1
                       18 
130             DISABILITIES INCURRED.
shew that he was non compos at the fine  levied and all the
special  matter:  but if he never recover his memory, the
heir may have his action  or enter when he will, for he is
excepted out of the body of the act, and is not bound t«
make any entry  or bring any action within any time, but
the party himself if he  recovers:  and in such  case the
lord by escheat  will take advantage of the non compos  of
his tenant.  For if the tenant is disseised and the disseisor
levies a fine, the  disseisee being then non compos, the dissei-
sor takes back an estate to himself in fee, and afterwards
the disseisee dies  without heir, the lord by escheat  shall
take advantage of him against his  disseisor.
   So, if a collateral warranty descends upon one non com-
pos which he might have avoided by entry :  but  an ideot
or non compos by their laches  shall  be barred of their en-
try ; and therefore if they are disseised and the disseisor
dies seised, it shall toll their entry; but after their death
their heir may enter  and take  advantage of the infirmity
of their ancestor, and his laches,  which should prejudice
himself,  shall not prejudice  his heir of his  entry.  For
Littleton saith, no laches can  be  adjudged by the law in
him who has no discretion in such case.(e)
   The  feoffment spoken of by Lit. 247, means any other
conveyance in pais ; but fines or other assurances of rec-
ord are not implied in this.
   The note  in 2 Vern.  678, seems imperfect, as appears
by the register's  book,.of 24th June, 1711.(/)  It was said
that although a person be found lunatic with a retrospect
of several years  ; yet if anj* conveyances are executed by
a lunatic after this time, they shall not be  sot aside as to
good uses ;  and yet they are  looked upon  as bad, and the
effects and a recovery bad where  the uses  are bad.
   But there was  a  fine in that case, and therefore the lu-
natic was bound; as it must be supposed, when he was ex-
 (e) Lit. 3,                     ■(/) 3 Atk. 310. 
FINES.
131
amined,  with regard to the fine, that he  was capable  of
levying.
  Where the ordinary time limited by St. H. VII. and Ja.
1. as to fines is gone  by, and the person suing, or his an-
cestor, was within the exception, the lessor of the plaintiff
should be  prepared  with  proof of it.(g)   The disability
should be shewn to have existed at the time when  the fine
was levied  or the title accrued, and to have continued till
within the time of  limitation,(/i) for when once the stat.  ,
has begun to operate, no subsequent disability will prevent
its progres.(t')
   If a tenant in tail levy a fine, the issue in tail, though a
lunatic at the time, is  barred, forever by it, because he is a
privy and out of all the savings of 4 H.  VII. c. 24.(/c)
   The act of 23  El. c. 3. does not bar a lunatic or  other
non compos mentis of his writ  of error, for reversing a fine
so that he or his heirs, pursue such writ within seven years
after  his incapacity is  removed; and if  he  dies pending
the suit, his  heir  may proceed within one year after the
seven years.(/)
   Ideot", lunatics, and  generally all  persons of non-sane
memory, are incapable of levying fines; and the statute
de modo levandi fines expressly directs, that persons of this
description shall  not  be permitted to acknowledge a fine:
(m) but still, if the judges or commissioners allow them to
levy a fine, it can never afterwards be reversed  by any
averment that the cognizors laboured under any of those
disabilities, because the record and judgment of the court
being the highest evidence in the law, the cognizors'-must
be presumed to  have been capable of contracting  at the
time, and therefore no averment can be  admitted to  the
contrary: and it is said that  even a declaration of the uses
of a fine by an ideot or lunatic will be good.(n)
  (?)Peake311.                   (0  Brydall 98.
  (h) 6 East. 80.                   (»») 5 Cruise-Dig. 94.
  (i) 4 T. Rep. S0O                 v'O 4 Rep. 124.
  (k)3 Co. 91. 
132            DISABILITIES INCURRED.
  One Henry Bushley, a monstrous and deformed cripple
and ideot, was  taken from his guardian, and carried to a
place unknown, where he was kept in secret, until he had
acknowledged a fine of his lands before justice Southcot,
to one Bothomc, and had declared the use of the fine to
Bothome and his heirs-Co)
  Henry Bushley was afterwards found by inquisition to have
been  an ideot, a nativitate, and upon an action brought by
a person who  claimed under Bothome, the  ideot was sent
out of the court of wards upon a man's shoulders, to be
shown to the judges of the court of common pleas.  Lord
chief justice Dyer said, that the judge who took the fine
was not worthy to take another: but notwithstanding this,
and although the monstrous deformity and ideocy of Bush-
ley was apparent  and visible, yet the fine stood good.
   It was «oved as a doubt in the court of wards, whether
this fine  should not enure  to the use of the ideot and his
heirs ; for although it was agreed, that the fine, being of
record, bound the ideot, yet it was contended,  that the
deed executed by the ideot,  was not sufficient to direct
the  uses of the fine; but it was resolved, " that for  as
" much as he was enabled by the fine as to the principal,
•'• he  should not be  disabled to limit the uses  which  are
" but as accessary."(p)  -
   One Hugh Lewing, who was an ideol^ and so found by
 office, levied a fine, and declared the uses of it by indent-
 ure.   It was resolved in the court of  wards by the lords
 chief justices  Wray and Dyer, that both the fine and de-
 claration of uses should  stand  good, as  neither Hugn
 Lening nor his heirs could aver that he was an ideot: and
 it was said by the court, that they  would  sooner suppose
 the office found to have been erroneous, than  bring a ju-
 dicial act  into question, or  the judgment  of the court in
 which the fine was levied.(<7)
   to)  12 Ren. 124.                (?) Hugh Lewies case, 10 Rep.
   ()>) 2 Rep. 58 a. Hob. 224. vide 42. Winch  106.
 hifra. 
FINES.
133
  A complaint was made to the court  of common pleas,
by  Thomas Gust,  supported by many  affidavits,  setting
forth, that  Johanna Lister, one of the cognizors, in a fine
lately levied, had for some years past been disordered  in
her senses, and was so at the time when the said fine was
levied.   The court thereupon made a rule to shew cause
why the fine should not be vacated, and for John Han-
cock, one of the commissioners, (who, with two others took
the fine by dedimus potestatem,) to answer the matters in the
affidavits.  Upon an enlargement  of the rule, the court
recommended it to  them  to produce  the said  Johanna
Lister, who resided in Yorkshire, and accordingly she was
brought into  court:  and  being examined by the lord
chief justice, appeared to be  a  person  of good capacity,
and very well to understand the intent of a fine,  and the
deed declaring the uses thereof, which was in favour of
her husband, with whom  she had lived many years, and
upon whom she was desirous to settle her estate,  and pre-
 vent its descending to the said  Ihomas Oust, her   nephew
 and  heir  at  law.  The  court discharged  the rule, with
costs of the  application, and the  expenses  of  the said
Johanna's journey to Westminster, to be paid by Cust.(r)
   Ideots, lunatics, and, generally,  all persons of non-sane
 memory,  are" disabled from  suffering  common recov-
 eries, as- well as from levying fines; though, if an ide-
 ot or lunatic does suffer a common recovery, and  appears
 in person, no averment can afterwards be made that he
 was an ideot or lunatic.  But if he appears by attorney,
 I presume such an averment would be  admitted,  upon the
 same principle that an averment of infancy may be made
 against a warrant of attorney, acknowledged by an infant
 for the  purpose of suffering a  common  recovery, as the
 fact of ideocy  may  be  tried  by a jury,  with  as much
 propriety as the fact of infancy.(s)
   (r) Lister v. Lister, Barnes 218.     « 5 Cruise Dig. 397. 
134              DISABILITIES INCURRED.
  Although no averment of ideocy or lunacy can be made
against a recovery, where the  parties appear in person,
yet evidence of weakness of understanding  has been ad-
mittedj.to invalidate a deed to make a tenant to the prae-
cipe, for suffering a common  recovery; and the recovery
has, in that manner, been set aside.(t)
  (t) Sir B. Wentworth's case, R)id.
4 
[  135  ]
                   CHAP.  XII.

                PAROCHIAL SETTLEMENT.

JL HE settlement of ideots has been formerly compared
to that of bastards,  and so fixed at the place of birth ;(«)
but this was over-ruled by lord Holt, who held there is
no difference between  an ideot and any other poor child.
The case of a bastard differs, because he has no father,
or none that the law looks upon as such; and therefore in
18 Eliz. c.  3. the parish of his birth is bound to maintain
him.
  The children's settlement during infancy cannot  be di-
vided from the  father's; where he  gains  a settlement he
gains it for all  his  family; and  if he  die and his  widow
marry, they go  with  her for  nurture, and so follow the
settlement  of the second husband  until  they  be seven
years  of age, and  then the children return to their  own
father's settlement.
(«) Salk. 427, 485, pi. 43, 528. 
[ 136}
                   CHAP.  XIII.


                    OF VAGRANTS.

XHE stat. 17 Geo. II. c. 5. (1744) which empowers mag-
istrates to take care of  lunatics, upon complaint of outra-
ges committed, elates to vagrant  lunatics only, who  are
strolling about, and does not extend to persons of rank
and condition, whose  relations can take  care  of them
properly, (b)
   Two justices of the peace are authorised by warrant to
cause  such  vagrants to be apprehended and kept safely
locked up in some secure place within the county or pre-
cinct, and to be there chained, if they find it necessary, if
their last legal settlement shall be there ;—and if it shaft
not be there, then to pass them thither, and two justices
there may in like manner order them  to  be confined  and
chained: and the expenses of their maintenance are to be
defrayed out of their goods and chattels to be seized  and
sold by the justices' warrant to the church wardens or over-
seers ; or by receipt of so much of their  rents as may be^
necessary;  and they are to render  an account to the next
quarter sessions; and if the parties  have  not property suf-
ficient, then  the  expenses are  to be  defrayed by the
parish.
   This act is provided not  to infringe  the right of the
crown, or the great seal, &c. concerning lunatics, or to  pre-
 vent any friend  or relation* from  taking them under their
 own care and protection.
   And  a recognizance for surety of the peace is not for-
feited by confining a  person who  is mad or even blind,
 and by such coercion as may be necessary.(c)
   (6) 2 Atk 52.
   {c) 22 Ass. 56. 2 R. A. 546. 22 Ed.  IV. 5. 1 Leach's Haw. P. C. 259. S. 23 
OF VAGRANTS.
137
  There cannot be any doubt that in cases not  provided
for by this act, any man may seize and bind and imprison
a madman, to prevent him doing mischief to himself or to
others, or to any property ;\d) for the necessity of avoiding
greater inconvenience, is a good plea in law; like that of
killing a thief, or burglar, in defence of his person or house.
  (d) Hob. 96. Moor v. Hussey.
19 
[ 138]
                   CHAP.  XIV.

                   CRIMINAL ACTS.

                Section 1.  In general.

T*HE disabilities which we have seen to arise out of the
incapacity of the unfortunate objects of this work, proceed
from  the principle  of protection which  the  law affords
them ;—and this protection is farther extended even where
their  wild indiscretion has led them to violate the  laws
themselves.  They are forgiven for  they know not what
they do!—
   They ought not to be prosecuted for any crime because
they  want knowledge to  distinguish between good  and
evil.(e)
   Ideocy being a defect from birth is generally to be pro-
tected from  punishment;  but  lunacy, which is a partial
derangement, the senses returning at uncertain  intervals,
the offender is  only protected from punishment for  acts
done during the prevalence of the disorder;(/) for  he is
then sufficiently punished by his madness, which prevents
 him from affording by punishment any example to others:
 (g) n°  guu% which is the gist of criminal process,  can at-
 tach to any person while he is incapable of reason or de-
 sign ; and as the evil intention is the implication of every
 offence, and therefore the charge of every indictment, a
 deficiency of will is held to excuse the overt act; for there
 is no human mode of trying the secret motive but by the
 overt act: if therefore die overt act is proved, it is perfect
 justice to imply the motive which  cannot be proved; for

   (e) 1 Inst. 247. 3 Inst. 4. 108. Haw   (/) 1 Hale 31. 4 Com. 24,
 P.C.I.                       (jO Co. Lit. 347. 
CRIMINAL ACTS.
139
confession is  not  to be the means of conviction,  it is the
extreme of the doctrine that a man cannot stultify himself.
  Any crime committed by an ideot or  lunatic can arise
only from  defective or vitiated  understanding; it would
be unjust therefore to render him chargeable with his own
dLCts-^furiosus furore solum punitur.
  If a man in his sound memory commits a capital offence,
and before his arraignment becomes insane, this will stay
the arraignment, because he is unable to plead under prop-
er caution and advice, (h)
  If after the arraignment and plea he becomes insane, his
trial will be stayed, for he is then incapable of making his
defence^
  If by some oversight, or by means of his gaoler, he plead
to the indictment and is put upon his trial, and it then appear
to the court that he is insane, the judge in his discretion may
discharge the jury of him, and remit him to prison to be
tried after  his recovery : and this caution is  more  essen-
tially necessary in favorem vitce where any doubt appears
upon the evidence touching the guilt of the fact committed ;
and if there be no colour of evidence to prove him guilty,
or if there be a pregnant evidence to prove his insanity at
the time of the fact, then upon the same favour of life and
liberty,(i) it is  fit it should be proceeded  in at the trial in
order to his acquital and enlargement from justice ; for by
reason of his incapacity, he cannot act felleo animo.(k)
  If it were doubtful, at his trial, whether he were lunatic
or not, that question was first tried by an inquest of office
to be returned  by the sheriff of the county  wherein the
court sat;  and if they found that the party  only  feigned
and  still refuse to answer,  he  was dealt with as one  who
stood mute.
  Every person of the age of discretion is presumed to be
of sane memory until the contrary appear, which may be
  (b) 1 Haw. P. C 2.               (fr) 3 Br. Abr. 528.
  (/) Hale's Hist. cb. 35. 36. 
140
CRIMINAL ACTS.
either by the inspection of the court, and by evidence giv-
en to the jury who are charged to try the indictment.(Z)
  Or it being a collateral issue,  the fact may be pleaded
and replied to ore tenus, and a venire awarded returnable in-
stonier in the nature of an inquest  of office ;(w) and this
method in cases of importance,  doubt, and difficulty,  the
court will in prudence and discretion adopt.
  If, after a man be tried and found guilty, he lose his sen-
ses before judgment, that shall not be pronounced, (n)
  If after judgment he becomes insane he shall not be or-
dered for execution; for had he been of sound  mind he
might then have offered something in stay of execution ;(o)
an argument which also applies to all the former proceed-
ings.
  It is therefore an  invariable rule when any time inter-
venes between the attainder and award of execution, to de-
mand of the prisoner what he hath to allege, why execu-
tion should not be awarded against him ; and if he appears
to be insane, the judge in his discretion may and ought to
reprieve  him.(/>)
  If the punishment were less than death and were inflict-
ed  upon a prisoner deprived of reason, it would be unpro-
ductive of one of the great ends  of punishment, the  cor-
rection of the criminal *,  and to prevent his doing  further
mischief to society.(q)
  Human  tribunals  are  only justified in introducing the
pain and evil of punishment when  it is likely to prevent
that greater degree of evil  which would result from the
unrestrained commission of crimes.   Indeed in the bloody
reign of Henry VIII. a statute was made to authorise the
trial of a lunatic in his absence, charged with high treason,
and to sanction his execution,  if convicted, as though he
  (/) 1 Hale 33. 5. 6. Tr. per pais 14.   (n) 1 And. 154.
O. B-1783-4 3 Ba. Ab. 31.           (o) 1 Hale, P. C. 34.
  (m) Fost.  46. Kel. 13. 1 Lev. 61. 1   (/>) 4 Bl. Com. 395.
Sid. 72, #c. 1 Hale 35.  Sav. 50. 6.    (q) Beccaria, c. 12. 
IN GENERAL.
141
 had his perfect minder) but  this act was wisely repealed
 by 1 & 2 P. & M. c. 10.
   But if a  lunatic hath lucid  intervals he shall answer for
 what he does in those intervals, as if he  had no deficien-
 cy :(s) vet this may be avoided by his not being suffered
 to go at large: it  was the doctrine of the  ancient law that
 lunatics might be confined till  their recovery, without wait-
 ing the forms of a commission or other special authority
 from the crown ;(t) and now  by  the act for confining va-
 grants (17 Geo. II. c. 5.) already  mentioned this is provi-
 ded for.
   If one who wants discretion commit a trespass against
 the person or possession of another, he shall be compelled
 in a civil action to give satisfaction for the damage.(w)
   The great difficulty in all  these cases,  is to determine
 where a person shall be said  to be so far deprived of his
 sense and memory as not to have any of his actions imput-
 ed to him: or where notwithstanding some defects of this
 kind he still appears to have so much reason and under-
 standing as wili  make him accountable for his  actions,
 which lord Hale distinguishes between  and  calls by  the
 names of total and partial insanity: and though it be diffi-
 cult to define the indivisible line that divides perfect and
 partial insanity, yet, he says, it must rest upon circumstan-
 ces duly to be weighed and considered both by the judge
 and  the jury, lest on the one side there be a kind of inhu-
 manity towards the defect of human nature, or on the oth-
 er side too great an indulgence given to great crimes : and
 the best.measure he can think of is this; such a person, as
 labouring under melancholy distempers, hath yet ordina-
rily as great understanding  as a child  of fourteen years
  (r) 33 Hen. V11T. c. 20.          289.  Plow. 364.  2 Inst. 284.  414.,
  («) 1 Hale, P. C. 31.              Poph.  141. Brnwnl. 197. Nov 129.
  (t) Bro. Abr Corone 101.         Cio. Ja. 467.  1  H«. 15. 16. 20.  4
  (u)2 U. Abr. 547. 3 Bi. Ah. 131. Conun.22. 2Comin.291.
B. Cor. 6.  Hob. 134.  Co.  Lit. 247. 
142                    CRIMINAL ACTS.

hath, is such a person as may be guilty of felony or trea-
son, (x)
  Imbecility of the plaintiff is generally no good objection
against his bringing an appeal of felony, &c. for as the de-
fendant has  the proper means for his acquittal, by putting
himself upon a trial by his country, and the imbecility of
the plaintiff is wholly owing to the act of God, and no way
lessens the injury  complained of by him, it is  not reason-
able that he should suffer any disadvantage from it.(?/)
But the total incapacity which  attends upon  an ideotr or
one born deaf and dumb, prevents him from bring ing any
appeal whatsoever, (z)
  So likewise an ideot or person deaf and dumb, or any
one that is non compos at the time, cannot  be an approver,
to prove his appeal; because no such  person ought to be
admitted to  take  the  oativ before  the coroner,  without
which there can  be  no approvement; nor can he wage
battle.(a)
  Although   the old doctrine seems to have  allowed of
punishment  for inferior crimes, and of damages for civil
injuries, committed by lunatics, yet the liberality of mod-
ern times would rather waive any such right and relax the
pursuit of punishment, or remedy, against an offender who
could  not have that design which constitutes the crim-
inality.
  It is to be assumed that all men are born in a state of
sanity ; this is the common disposition of nature ; reason is
the lot of man, it is that which  distinguishes him from oth*
er animals;  a man without  reason  is little  more  than an
organized body, which only retains the shade and figure
of a  man: his state is a kind of prodigy and  monster in
nature :  hence arises that common presumption that every
man is in a state of sanity ; that insanity ought to be prov-

  (x) Hil. Hist. P. (;. 30.           («) -J  Leach. Haw. P.  C. 294. 2
  Q/) 2 Leach's  Haw. P. C. '240.     Inst. 12" S P. C. J47. Summaiy 192-
  (*) SumriiHi-y 183. >. P. C 60. 98 
SUICIDE.
143
  ed, but that a proof of sanity is not necessary:  nothing is
  more  difficult  than to prove the fact of insanity; it is not
  only to combat a natural presumption ; it is also to render
  an invisible and interior quality  sensible and visible.  It
  is with this precaution that the plea of insanity can only be
  ^et up in excuse for substantiated  crime.(fe)

                   Section II.  Suicide.

    Upon the principles already laid down, a person who
  loses his memory by sickness, infirmity,  or  accident, and
  kills himself, is not felo de se ;(c) otherwise if  he kills him-
  self in a lucid  interval.(d)  So if  he give himself a mortal
  stroke while he is non compos, and recover his understand-
  ing and then die, he is not felo de se ;(e) for though the  death
  complete the homicide, the act must be that  which makes
  the offence.   But it is a vulgar error that  none of sane
  mind  can be felo de se, and  that  whosoever kills himself
  must be non compos; for if he be non  compos as  to  other
  acts, that sole  act shall not denominate him non compos.(f)
    And here 1  cannot but  take notice of a strange notion
  which has unaccountably prevailed of late, that every one
  who kills himself must be non compos  of  course ;  for it is
  said to be impossible, that a  man in his senses should do a
  thing  so contrary to nature and all sense and reason.
    If this argument be good, self-murder can be no crime,
  for a  madman can be guilty of none ; but it is wonderful
.  that the repugnancy to nature and reason,  which  is  the
  highest aggravation of this offence, should  be thought to
  make it impossible to be any crime at all,  which cannot
  but be  the  necessary  consequence of  this position, that
  none  but a madman can be  guilty of it.   May it not with
  as much reason be argued that the murder of a child, or of
    (b) Evans's Potbier 2. 589.         case. Heydou's case. Brad. L. 3. 2.2.
    (c) 3 lust. 54.  Hal. Hist. P. C. 412.  Fleta. L. 1. c. 36.
    (d) Ibid. 102.                   (/) Comberb. 3. 1 Ja. 2.
    (e) Plowd.  Com. 260.   Shelly's 
144                  CRIMINAL ACTS.
 a parent, is against nature and reason, and  consequently
 that no man in his senses can commit it ? But has a man
 no use of his reason because he acts against right reason !
TVhy may not the passions of grief and discontent tempt a
 man knowingly to act against the principles of nature and
 reason in this case, as those of love, hatred, and revenge,
 and such like, are too well known to do  in others ?
   The same mode of reasoning may very easily be extend-
 ed to excuse the  blackest  crimes; for nothing can be so
 contrary to reason and nature, and to  all the best interests
 of life and immortality, as the commission of them.
   The decalogue forbids man to commit murder; in which
 precept  self-murder seems no less  to be understood,  than
 the murder of another; though the individual has eluded
 the vengeance of offended  justice, yet with a view to dis-
 courage the crime, our laws punish a son for having thus
 lost a father ; and a widow because she  is thus unhappily
 deprived of her husband: confiscation of the goods of the
 deceased, is depriving the survivors of their  due.(g)   By
 adopting this remark I cannot be charged with defending
 suicide.
   Montesquieu asserts the English destroy themselves of-
 ten in the very bosom of happiness ; that it is the effect of
 a distemper, connected with the physical state of the ma-
 chine, and independent of every other cause.  The  civil
 laws of some countries may  have some  reasons for brand-
 ing suicide with infamy ; but in England (upon  the prin-
 ciples  generally adopted)  it cannot be punished without
 punishing the effects of madness.(A)

                 Section III.  Murder.

   Lunacy is an excuse  for murder, for which a  madman
 shall not lose his life, for no  punishment of him can be any
 example, (i)   So an insane woman by killing her husband
  (g) Beccaria.                 (i) Hob. 90. 134. 3 Inst. 6.
  (A) Esp. des Lois v. 1.1.14. eh. 12. 
MURDER.
146
cannot commit petit  treason, though the same act against
the person of the crown was held to be  high treason ; for'
the king is caput et salus reipubs : et  a capite bona valetudo
transit in omnes.
   Besides, if a madman kill another he hath not broken
the law,  although he hath  broken the  words of the law,
for he had not any  understanding, but mere ignorance,
which is the visitation of God.(fc)
   A feme coverts notwithstanding ker killing either her hus-
band or another, is  nevertheless entitled to dower; the
erime not being imputable to her.(/)
   In the state trials two cases are reported material to this,
subject.
   Edward Arnold was indicted at Kingston, before Mr.
justice Tracey, for  maliciously shooting at lord Onslow.
There was not a doubt that he was deranged, and particu-
larly in relation   to lord Onslow himself, whose conduct he
had very much misconceived.   It appeared in evidence,
that he had conceived a regular steady design, and had
prepared the proper means for carrying it into effect. The
court admitted the proofs,  but whether the act was done
maliciously,  &c. was to  be deduced from the  nature of
the insanity on which the jury were to decide :  it was laid
down that if he knew not what he did then he could not be
guilty; but it was not every kind of partial  insanity that
would excuse him, but such  a deprivation of reason as
made a man know no more than a brute, or an infant. This
 exposition of* the  law has  never  since been controverted,
 but has been adopted in subsequent decisions.
   The jury  found him guilty, but he  was not executed:
 he was reprieved at lord Onslow's request, and remained
 in prison thirty years.
   The case  of lord  Ferrers,  before the  house of lords,
 who had killed Mr. Johnson, was, that he was occasionally
   (k) God. PI.Com. 19.          (0 Pt>rlf- 364> *■
                    20 
146
CRIMINAL ACTS.
 insane—the murder was deliberate—but  he was not pun-
 ished, for it was proved that he did not know what he did
 and was incapable, from fits of insanity, of judging of the
 consequences of his actions.  It was urged upon  the au-
 thorities of Coke and Hale, that it was not necessary to have
 a complete possession of reason, but a sufficient degree of it
 to comprehend the nature of the action,and to discriminate
 between moral good and evil, to warrant the judgment of
 the law taking place.   He  was found guilty, it appearing
 that at the time he committed the fact he  had capacity of
 mind sufficient to form a design and to know its  conse-
 quences-

                Section IV.  Treason,

   The  protection of the person of the monarch has  ever
 been dear to the people of England ; it has, from the ear-
 liest times, and never was more sincerely than at the pres-
 ent day, been  surrounded with laws which  have been es-
 tablished by universal  consent, and with affections accom-
 panying the graver obligations of allegiance and fidelity—
 the elevated station of  the crown as the first estate of the
 realm, the  caput et salus  reipublicce, has been guarded by
 such a rampart as  must prove impregnable while the san-
 ity of the people remains unimpaired, and  the  final  visi-
 tation of heaven is suspended—the bona valetudo qnce tran*
 sit in omnes must be lost at its source, and its channels  be-
 come dry, before its banks can fall in  and its barriers be
 rooted up!
   But the charge of the worst of crimes, the murder of the
 king, must yet  be tempered with discretion; the law, though
jealous of the  least approach to  this offence, will spare in
 its deliberation the condign punishment it deserves, when
 insanity accompanies the crime:  for in our ideas of great
 crimes there should be nothing arbitrary.(m)
                (m) Beccaria. 
TREASON.
147
  In the jealous and violent reign of Hen. VIII. even this
mild humanity of the English law was forgotten ;  he was
resolved to establish  himself in  absolute power, and  to
compel his council to aid  his designs, in which the parlia-
ment were in some acts not inclined  to  oppose his wish.
In one of these we find them yielding to criminal ven-
geance in  the  punishment of lunatics for high  treason.
(1541) ln)
  It was suggested in the preamble to the statute that lu-
nacy was falsely contrived to delay the punishment; and
therefore directed that a special commission  should  be is-
sued from the chancery upon the  certificate  of four coun-
sel to enquire of the treason, upon which a jury should be
impannelled to  try the offence in the lunatic's absence, and
if found guilty he was to be punished as if of sane memory.
  If the lunacy followed the attainder or conviction, pun-
ishment was alike to ensue: attainders by common  law
were declared as effectual as those by parliament; and the
king's benefit of uses was saved : saving also the  rights of
all persons, except those attainted.
   But the sounder understanding of the law gave a better
protection to the prerogative and person of  the crown.
   In the subsequent reign the principle of natural justice
was declared to be the law of England, namely, that a lu-
natic cannot be punished  as an example to others.(o)
   The ancient law was, that if  a madman  had killed, or
offered to kill the  king, it was held  for treason,  and so it
appeared  by Alfred's law before the conquest, and is re-
cognized  in Beverley's case ;(p) but by stat. 25. Edw. HI.
 stat. 5. c.  2. and by force of the words '- compassing and
 imagining the  death,"(9)  he that is non compos and  totally
 deprived of all compassings and  imaginations cannot com-
 mit high treason by compassing or imagining the death
 of the king; but it must be absolute madness and  a  total
  >n) 33 H. VIH. c. 20.             (/>) * Co. 126.
  S Co. Liu 247.                 (9)3In.t.b.b. 
148
CRIMINAL ACTS.
 deprivation of memory,  without which  he could not be
 found  guilty by this statute, and the ground on which the
 act of Hen. VIII. was justified was to  guard against  its
 being made a pretence and excuse; but it was seen by the
 more humane disposition of after times that the exhibition
 of so miserable an object as insanity, in the act of receiv-
 ing the vengeance of offended justice, was more likely to
 produce very serious effects than to excite example, the
 express purpose of which sprung from a nobler cause, ut
pcena metus ad omnes perveniat.
   This matter was therefore  cleared  by  the  statute  of
 1 & 2 Ph. & Mary, c. 10,, which  directed that all trials
 for any treason shall be  had according to the  due order
 and  course of the common  law, and not otherwise, saving
 to all  persons other than offenders, and such  persons  as
 claim under them, all such rights  as they had at the  time
 of committing such treasons or at any time before.
   The most recent case  in which lunacy was effectual  to
 excuse a man guilty of treason was  that of James Hadfield
 in 1800, who was indicted and tried  at Westminster-hall be-
 fore  a special commission, for having on the 15th of May,
 maliciously and traitorously encompassed, imagined,  and
 intended to put the  king to death, by  " buying and  pro-
 curing a certain quantity  of gunpowder and leaden bullets
 with which he loaded a  pistol, and  having so armed him-
self  repaired to Drury-lane  Theatre, and there discharged
 the same at the person of the king."
   He had formerly been deranged, and for that cause  had
 been discharged from the army.  But  it was urged,  that
 on the day of this fact he was sufficiently sane as to war-
 rant the credit of guilt as stated by lord Hale, that the de-
gree of sound mind necessary for the discharge of a con-
tinued duty is very different from the state of mind neces-
sary to combine guilt as to one deliberate act: and the
principles already laid down of lucid intervals giving va- 
TREASON.                   149
lidity to  contracts were likewise  urged; but that the de-
gree of sanity necessary to give validity to a contract was
not necessary to enable a jury to pronounce guilt; for the
distinctions between right and wrong are deeply engraved
in the mind, and the traces of that distinction are never to-
tally erased while the mind has the capacity of retaining
any thing.
   It was proved that the prisoner, at the  moment of the
audience rising on his  majesty's entering  his box, got up
above the rest, and presenting the pistol loaded with slugs,
fired it at the kings person, and then let it  drop.   He had
sat in  his place  three-quarters of  an hour  before the
king entered, and  he appeared to be in a situation where
a good aim might be taken, standing upon the second seat
from the orchestra in  the pit; he took sufficient time to
take a deliberate aim by looking along the barrel as a man
does who takes his aim: when he was apprehended, he
said, " this is not all, this is not the worst that is  going for-
u ward ;" and said to the duke of  York, " God bless you—-
* you are a good  fellow, you are his  royal highness the
" duke of  York," who afterwards recognized him to have
been one of the orderly men of dragoons  attendant upon
his highness at the battle of  Famars—said " he knew per-
" fectly well his life was forfeited—that he  was tired of life,
" and regretted nothing but the fate of a woman who was
" his wife, and who would be his wife a few days longer
" as he supposed;" these words he spoke calmly, without
any apparent derangement, and so continued—he repeated
that " he was tired of life, that his plan was to get rid of it
" by other means; he  did not mean any thing against the
'•' life of the king, he knew the attempt alone would answer
■' his purpose."
   It also appeared in evidence that he had in the morning
shewed a pair of  pistols to a friend, alleging that he had
bought them for his young master, and that after cleaning 
150
CRIMINAL ACTS.
them he should make a profit of four shillings, and left one
of them with  him,  lest both  should frighten his wife, and
appeared then to be perfectly cool and collected, tiiough
in lower spirits than usual.
  In the defence (by Mr. Erskine) those cases were relied
on where insanity has been held to invalidate contracts,wills,
&c. that lord Hale calls insanity, a total deprivation of
memory, but  this could not mean merely recollection; for
a man may  forget, whether he be  a subject and  bear
an allegiance to his king, and yet not be a lunatic, on ma-
ny occasions  he  is  possessed of a subtle memory ;—strong
passions, violent  emotions, gusts of fury, are not insanity;
that is, when  the mind is  under the influence of delusions
operating  upon  them, whose reasoning  proceeds  upon
something which has no truth, no substance nor founda-
tion, but is vainly built upon some morbid image formed in
a distempered imagination.  Confirmed maniacs have been
found to reason  consistently on various  topics, and will
frequently baffle the least suspicion of their insanity until
some one unexpected point discover the  vulnerable state
of their mind.
  Two cases were stated of this nature ; in one upon a
prosecution against the keeper of a madhouse for illegal
and malicious detention;  when  after a long examination,
in which the case was almost confirmed, at the sudden ap-
pearance of Dr.  Simmons upon the bench, the witness pro-
claimed him to be God and the Saviour of the world. The
other case was similar against Dr. Munro ; the indictment
was laid by a Mr.  Wood, who gave his evidence very con-
sistently till the sudden appearance of Dr. Beattie struck
upon the chord of  his insanity.   He was  permitted to ask
the witness what became  of his  amour with a princess ?
he replied, that she was imprisoned in a lofty tower, and
their correspondence was interrupted, as all her letters fell
into the water which inclosed the place of her confinement. 
THEASON.
151
Wood preferred a second indictment, and all the most inge-
nious cross examination could not extort from him a single
acknowledgment that he  recollected any thing of this
imaginary correspondence :  not that  his fancied love was
extinguished, but that he was determined against a second
defeat upon the same grounds.
  On these cases it was contended that insanity  is capa-
ble of assuming, and  exhibiting the appearance of sanity
except when it amounts to a degree of absolute  frenzy ;
and it was allowed that if a man commits with premedita-
tion, for that must  always be included, a criminal act un-
der the dominion of mischief and malice, he would  in law
be responsible, although as to other things he might  be ac-
tually insane ; because in what he does then he is not un-
der the dominion of his malady ; where the party is under
that dominion, the case is exactly the reverse.
   During the time that Hadfield was  acting under the im-
pressions adduced in evidence he discoursed very reason-
ably, and had his  perfect recollection while he imagined
he was acting under the command of Heaven : and there
was no evidence of his having associated with  seditious
persons who might have inflamed his mind.  The  almost
deadly wounds which had  disordered his brain—his fre-
quent confinement in fits of  insanity—his general charac-
ter, boiling with loyalty and attachment to the royal fami-
ly—his mixing his own madness with that of  Truelock, a
cobler, whose  committal  for insanity was produced—all,
and many other particulars, showed  him to be non  compos
mentis.
  This defence was  supported by evidence that proved
the prisoner to have been a private dragoon of the 15 regt.
in 1793, and wounded in the action  on  the  18th of May,
near Lisle—left for dead on the field— carried to the hos-
pital in  a state of  insensibility—afterwards called himself
king George, and when he saw himself in a glass felt his 
152
CRIMINAL ACTS-
head for his crown—when he was  recovered sufficiently
to be in the garden his comrades  called him king George ,•
he replied, that was all over now  and done away with,
and appeared  quite sensible.  That three of his wounds
had probably penetrated his skull and injured  his brain,
and after injuries of the brain from wounds there frequent-
ly follows the loss of some particular sense—sometimes the
loss  of sight or of hearing—sometimes a loss of memory
followed by insanity, and if that immediately follows and
continues for two or three  years it becomes permanent;
it may not be  constant, but will be excited by particular
causes and circumstances : it often  happens that a person
thus affected is at one moment perfectly rational and seem-
ingly in the full exercise of reason and all the  powers of
the mind, and at the next moment the paroxysm follows.
That when common questions  where put  to him  he an-
 swered correctly, but when any were  put which related
 to the subject of his lunacy, on religion, and on  his crime,
 he answered irrationally: That paroxysms come on peri-
 odically ;  the  approach of hot weather has often this ef-
 fect, but are more frequently  produced by  something in
 the state of health, or by some external circumstance op-
 pressing or leaving violent or sudden influence on the mind,,
 or by the food or manner of life.   That on account of his
 insanity he had been discharged from the army—had since
 been necessarily confined  to his room for ten  days, and
 had been in various fits of bawling  and  hallooing out, they
 came on with the hot season, and at the changes and full
 of the moon ; he then called himself a prince, Jesus Christ,
 and sometimes God :  his dejection gave signs  of the fit's
  approach, that then his  eyes stared,  he  was very surly.
  that on  the  11th  of May  he was growing worse—said
  " Jestis Christ was a damnation blackguard," and often re-
  peated that he was u going a  long  way  and had a great
  deal to do";  on the 13th said on his return home thatu he 
TREASON.                   153
had been to see God, that the Virgin Mary was a bloody
whore, that Jesus Christ was a damned bastard,  and God
was a thief:"  that he went out  again, drank  a part of a
pot of beer, and returned home in the evening using simi-
lar indecent expressions ; after supper said he "was order-
ed to go into the garden to pray for three hours  between
nine and twelve o'clock, and that there he was to see God:"
called himself God Almighty's servant, and was going  to
build a house inWhite Conduit fields where he was to live
with the cobler Truelock; that he was to be God and True-
lock to be Satan." That about one or two in the morning he
suddenly jumped out of bed, and referring to his child, a
boy of about eights months  old, of whom  he was usually
remarkably fond, said he  was going to  dash  his child's
brains out against the bed post; said," God damn his little
eyes I will kill him," that God had ordered him to do it:
on his wife screaming and his friends coming in, he ran into
a cupboard and said he would lie there, it should be his bed,
and God  had said so, in doing this he had overset a kettle of
water, and said " he had lost a great deal of blood."  In the
morning  he denied that he had got  up or  awaked during
the whole night—shook his  fist at his wife and  said  he
would murder her.  In the following day he repeated his
former expressions about God, and the Virgin Mary, and
Jesus Christ, and during the very next night had frequent
startings  in his sleep,  and appeared  much worse in the
morning, said he had seen God in the night, that the coach
was waiting, and that he had been to dine  with the king.
Spoke very highly of the king, the royal  family,  and par-
ticularly of the duke  of York, went  out to his  master's
work shop, and returned to dinner at two, but would  not
eat any, said " he  did not need meat, and could live with-
out it ;"  asked for  tea  between three and four o'clock,
talked of going to be a member of the society of Odd Fel-
lows, repeated his irreligious expressions and then went out;
                      21 
154                CRIMINAL ACTS.
this was the afternoon on which he went to the theatre : that
when in his right mind he was a very tender and attentive
husband, and even when he was deranged his wife could
manage him : that ever since  his return  from France he
had been annually deranged from the beginning of spring
to the end of the dog days:  on the 13th  of May he said
" he was a prophet, and that he  must eat no more as  the
Lord Jesus Christ had forbidden  him."
  From this evidence  the lord  chief justice Kenyan held
that being deranged  immediately before, it was not very
likely that in the interval he had recovered his senses : if
they were to run into nicety, proof might  be demanded of
his being insane at the very moment when he committed
the act: that there was no reason to believe that he was a
rational and accountable  being when  perpetrating  the
deed.
  The jury concurred with the court in  this opinion and
gave their verdict  to be  recorded thus:—" Not guilty, it
appearing to us that he was under the influence of insanity
when the act was committed."
   It was agreed that he should not be discharged ;  he was
therefore re-conducted to Newgate until he  could be other-
wise disposed of.
   Consequent to this trial, the legislature  passed an act in
the July following ,(r) declaring that in all cases where it
shall be given in evidence  upon the  trial of any  person
charged with treason, murder, or felony, that he was insane
 at the time of committing the offence, and shall  be  acquit-
ted, the jury shall  find specially whether  he was insane at
that time, and declare whether he was acquitted by them
on account  of such  insanity : and the  court  shall then
order him to be kept in strict custody, as they shall think
fit, until the king's  pleasure be known ; and the king may
then give such order for his  safe custody as he shall think
            ()*) 39 and 40 Geo. HI. c. 94. (1809.) 
TREASON.
155
fit:  and so in all like cases before the passing that act: —
which warranted the detaining of James Hadfield*
  Sect. 2. And if any person indicted shall be  insane, and
be so found by the jury upon arraignment, or appear so to
them upon the trial, the court shall direct such finding to
be recorded, and order him into strict custody until the
king's pleasure be known :  if any such person be brought
up to be discharged for want of prosecution, the court may
order a jury to be impannelled to try his  insanity, and on
their so finding, the court may order his confinement in
like  manner, and the king may give such order as he shall
think fit.
  Sect.  3. And in order to prevent crimes by lunatics, if
any  person shall be discovered and  apprehended under
circumstances that denote  a  derangement of mind and a
purpose of committing some crime, for which, if committed,
he would  be  liable to be indicted, and  if  any justice of
peace shall commit him as a dangerous person suspected
to be insane, such cause being  expressed in the warrant,
he shall not be bailed,  except by two justices, one of whom
shall be the first mentioned, or by the quarter sessions, or
great seal.
   Sect. 4. Insane persons having at different times endeav-
oured to gain admittance to the  king by intrusion in his
usual places of residence, it was therefore provided, that it
 any person who shall appear to be insane shall endeavour
 to gain such admittance, and there may be reason to ap-
prehend that the king's person may be so endangered, the
privy council, or one of the principal  secretaries of stale,
 may order his confinement;  and the great seal may issue
 a commission to enquire  into his sanity, and whether the
 king's person may be so endangered, and direct the sheriff
 to summon a jury accordingly ; and if they shall find him
 so  insane, the  great  seal  may order his  confinement so
long as there shall be  reason to apprehend  danger to the 
156
CRIMINAL ACTS.
king's person ; and afterwards  enquire into his recovery
and direct him to be discharged absolutely or conditional-
ly, or under restrictions as shall seem meet-
  In consequence  of this act, the judges have remanded
prisoners, who have been found to be  lunatics, to their
prisons, until his  majesty's pleasure be known, where they
have remained under  the care  of  the keepers, and have
been attended by such medical skill as  the  county has
afforded ;  but their number is now greatly increased, which
has justly excited the farther attention of the legislature. 
[ 157)
CHAPTER XV.
             OF COUNTERFEITING INSANITY.

 THE regular method  of investigating the plea of insan-
ity,^) offered  in excuse for crimes, or in delay of punish
 ment, was by an inquest impannelled for that purpose, as
 in the case of Somerville ; and if the finding was that he be
 lunatic only by covin or dissimulation, he was then tried
 upon the principal matter;  and  not condemned  to peine
forte et dure as in cases of felony : but if he would not an-
 swer directly, being of sane  memory, he was condemned
 upon a nil dicit and received judgment: if he were found
 lunatic, his trial was deferred.  And it  was fully agreed
 that if he plead the general issue not guilty, and afterwards
 upon evidence come and not speak directly, yet he was not
 deemed lunatic having once answered directly.
   So a felon upon his arraignment  appeared to be mad
 and the same process was  adopted.(fc)

  (a) Suvil 5ft.                 C6) * Anderson, 107. 
 
APPENDIX.
[VIDE TITLE.]
A  man may show, he was non compos mentis tn avoid-
  ance of his deed.
                  Webster verms Woodward.—3 Day's Rep. p. 90-

  MOTION for a new trial.

  THIS was an action of ejectment, to recover the undi-
vided moiety  of certain lands,  which the plaintiff and
Timothy Webster had conveyed to Miller Fish.   Upon trial
of the cause,  at Hartford, February term, 1808, a verdict
was found for the plaintiff.   A motion  for a new trial was
then made by the defendant, and the following reasons as-
signed ; viz. that  the court admitted the plaintiff to prove,
as the sole ground of  his right of recovery, that the plain-
tiff was a man of weak capacity, and thereby incompe-
tent to convey  estate; that the court admitted the plaintiff
to go into the proof respecting the weakness of his under-
standing,  in contradiction to the acknowledgment of  two
 certain deeds of  bargain and  sale made and acknowledg-
 ed before a justice of the peace, on the  17th day of May,
 1799, which deeds conveyed the demanded premises to
 Miller Fish; that the court admitted the plaintiff  to  pro-
 duce proof as to the value  of the demanded premises, as
 evidence to show, from the inadequacy of price, that the
 plaintiff was a man of weak capacity.  A rule to show
 cause was therefore granted; and the question reserved
 to be argued before the nine judges. 
160
APPENDIX.
   Goodrich and Dwight, in support of the motion, argued,
   1. That weakness of understanding does not incapaci-
tate a man to contract.
   2. That no man can avoid his own deed, by stultifying
himself.
   1. There is a distinction, always to be regarded, be-
tween  idiocy, and  weakness of understanding;  the  one
supposing a total destitution of mental capacity, the other
implying the existence of understanding, though in a small
degree.  The term non compos mentis does not apply to a
person of weak capacity, but only to one who possesses
not the exercise of  reason.  It is the latter description of
persons only, whose acts are void or voidable, merely for
defect of understanding; and such only are contemplated,
in England, by the  statute 17 Edw. II., which was declar-
atory of  the common law. 4 Rep. 126.  For no person of
the age of discretion, is, in  law, presumed to be non com-
pos mentis, and therefore is not to be restrained in the ex-
ercise of any lawful right, until he is ascertained to be so,
by a commission issued for that purpose from the court of
chancery. 3 Bac. Abr. 528.  On this fact being thus found,
the law gives the custody of the person and his  estate to
the king, that the  person may be protected from harm,
and the  estate from waste.  The immediate care of the
lunatic may, however, be intrusted to one commissioned
for that purpose*, whose acts are subject to the control of
the court of chancery.  3 Bac. Abr. 529.   Hence  origina-
ted our  statute authorizing the  appointment of a  conser-
vator ;  which gives to that officer the same authority which
is possessed by the committee of a lunatic, and vests in
the county courts powers similar, in this respect, to those
of the  court of  chancery.  This  statute, directing  the
manner in which such  persons, if without property, shall
be supported, speaks of persons " naturally wanting of un-
derstanding, so as to be unable to provide for themselves," 
APPENDIX.
161
and of such  as, " by the  providence of God, fall into dis-
traction, and become non compos  mentis;"  and of  those
who, " by age, sickness or otherwise, become poor and im-
potent.^)  And in a subsequent section, it is said, " But if
such idiot, distracted or impotent person have  any estate,
the county court of that  county where  they dwell, may
order and dispose thereof."  Here, while we remark, that
the object of this statute appears to be the same with that
of 17 Edw. II., the phraseology  used in this section is to
be particularly observed, as  it shows, precisely, what  de-
scription of persons was  meant by those who are natural-
ly wanting of understanding, mentioned in the first section.
For, however reasonably the term, in itself, might be tak-
en to extend to a person of  weak understanding, yet since,
referring to these persons, the phrase such idiot, is used in
the subsequent section, this latitude of construction is ev-
idently forbidden;  and the meaning of  the statute, in this
part of it, confined to idiots, distracted persons, and those
who by age, sickness or otherwise, become poor and impo-
tent.   The statute  17 Edw. II. says nothing of persons of
weak understanding, but speaks only of natural fools and
lunatics.   Bac. Abr. 529.(6)  Our statute, indeed, in  anoth-
er part (sect. 8.) goes farther than this, and provides, that
 if the selectmen " shall find any person  or persons that
 are reduced, or are likely to be  reduced, to want, by idle-
ness,  mismanagement, or bad  husbandry, that then such  se-
 lectmen may appoint an overseer to  advise, direct and or-
 der, such person in the management of his business ;" and
 that " no such person, while under such appointmerft, shall
 be able to make any bargain or contract,  without the  eon-
 sent of such overseer, that shall be binding or valid in law."
 But  on the subject of  persons of weak mind, the  statute

   (a) Stat. Conn. tit. 38. ,!., 1.    « Ves.407. Ex parte Bai-ncJey. 3 Atk,
   (b) See also Lord Donegal's  case,  IW. 
163
APPENDIX.
silent.   By neither of these statutes, then, are  such per-
sons rendered  incapable of making contracts.   And  al-
though  many cases have occurred, in which it  appeared
that advantage  had been  fraudulently taken of.  the imbe-
cility of such persons, and, on that ground, their contracts
have been annulled ; yet it has been uniformly  held, that
where  that reason did not exist, they were not to be re-
lieved, either at law or in equity.  1 Fonbl. 57. 3 P.  Wms.
12;). Osborne v. Fitzroy.  " Where a  weak  man gives a
bond, if there be no fraud, or breach of trust, in  obtain-
ing it, equity will not set aside the bond only for  the weak-
ness of the obligor,  if he  be compos mentis; neither will
this court measure the size of people's  understandings or
capacities, there being no such thing as an equitable inca-
pacity, where there is a legal capacity."  In the case of
Bennet v. Vade, 2 Atk. 324., on a bill brought by the heir
at law, of sir John Lee, to set aside  the conveyance of  his
estate,  upon  a suggestion  of fraud and imposition, lord
Hardwicke agreed, " that if sir John Lee was not  insane,
but only weak, he might do an act that will bind him;  for
there cannot be two rules of judging at law and in this
court upon the  point of insanity."  If, then, mere  weak-
ness of understanding does not incapacitate a man to con-
tract, it follows, that when  he contracts without fraud  or
imposition, his contract is binding.  That this sale was af-
fected  in consequence of any fraudulent practices on the
part of Fish does not appear.   Nor is any other mark of
fraud suggested, than that the price was inadequate to the
real value of the land.  It is conceded that such  a circum-
stance  as  total  inadequacy of price,  coupled with great
weakness of  mind, in the grantor,  will raise strong pre-
sumption of fraud ; but the  facts  which appear in this case
authorize no such presumption.   Indeed, the court admit-
ted proof of the value merely  as evidence of Webster's 
APPENDIX.
16S
weakness, and not of fraud  or oppression on the part of
Fish.(a)
  [The counsel for the plaintiff here objected, that on the
trial of the cause, they did not proceed on the ground that
the plaintiff was a man merely of weak  understanding,
but that he was non compos mentis.
  Smith, J., on referring to his  minutes, then stated—That
on the trial of the cause, the defendant having given in ev-
idence two certain deeds from the plaintiff and his broth-
er Timothy Webster, conveying  all the lands in question to
Miller Fish, the defendant's counsel objected to the admis-
sion of evidence to prove the incompetency of  the plaint-
iff to convey lands; because the deed, having been ac-
knowledged  before  a public  officer,  authorized to take
such acknowledgment, there could be no averment against
such solemn  act; and because no man can be permitted to
allege his  own incapacity to avoid a conveyance.   The
court overruled the objection, and admitted the evidence.]
  This statement of the case  seems not very obviously
to present a specific question-  Are we  to argue the point,
that proof of the plaintiff's incompetency to  convey should
not have  been  admitted?  If  the evidence offered were,
generally, that he was incompetent, without showing the rea-
son of the incompetency, whether infancy, idiocy, lunacy or
imbecility, the point would scarcely admit of argument.  If
the point is, that no man can allege his own incapacity, we
have no case; because infancy, clearly, may be  alleged.
  [Trumbull, J.  1 understand the  question,  upon  the
statement, to be, whether a man  may be allowed to stulti-
fy himself.]
  That a  man  cannot  stultify himself, to  avoid his  own
grant, is a well  established  principle of the English  law.
It is so said  by Littleton, sect. 405.; and has been so  held
in a multitude of cases, since his time.   In Beverley's case,
  (a) Hotr far inadequacy of price will Chan. R P- 175. 179. 10 Ves. jun. 474.
ope.lle to vacate » contract, see Ambl. 7 Ves. jun. 1-7.
18.  1 Bro. Chan. Rep. 9. 2  Bio. 
164
APPENDIX.
4Rep. 123., it was resolved, "that every deed, feoffment
or grant, which a man, non compos mentis, makes, is avoida-
ble, and yet shall not be avoided by himself, because it  is a
maxim in law, that no man of full age shall be, in any plea
to be pleaded by himself, received by the law to stultify
himself, and disable his own person."   A contrary opinion is,
indeed, given  by Fitzherbert.  F. N. B. 449. D.   But in
the case of Stroud v. Marshall, Cro. Eliz. 398., in debt on
an obligation, non sane memory was adjudged to be no plea;
and the opinion of Fitzherbert expressly held to be not law.
So also Co. Litt. 247.  And in Cross v. Andrews, Cro. Eliz.
622., an action  on the case against an innkeeper, for not
keeping the goods of his guest safely, in which the defend-
ant  pleaded  that  he was sick, and of non sane memory;
this plea was held insufficient, because " it lieth not in him
to  disable himself no more than in debt upon an obliga-
tion."  The  principle is also recognized by lord Holt, in
 Thompson v. Leach,  1 Ld. Raym. 315.; and  is found in 3
 Com. Dig. 483. D. 6.   3 Bac  Abr. 537.   15 Vin. Abr.  137.
 D. 2.  1 FonbU 45.  The utmost danger  is to be appre-
 hended in admitting the doctrine, that  a man may stultify
 or disable himself in court; as it is a  direct contradiction
 to a plain maxim of the common law; as it would  give
 rise to endless disputes, and would afford ample scope for
 fraudulent practices.  It need not be denied that incon-
 veniences may sometimes  result from the  doctrine  for
 which we  contend.  If  this were a  sufficient objection, it
 might be  made, with equal reason, against the establish-
 ment of all general principles.   The inconveniences to be
 feared from  admitting the maxim of the common law, are,
 however, comparatively small.  With respect to absolute
 idiots and madmen, the danger is nothing.   But from the
 least portion of intellect to the greatest, the gradations are
 innumerable; and who shall  determine at what  point in-
 tellectual  weakness  ends, and idiocy begins ? There is. 
APPENDIX.
165
and can  be, no  standard of mediocrity.  Leave men to
the plain principles of the  common  law, and  friends will
take care of  the weak and  incapable.  But if it is  once
understood, that the contracts of a'person non compos men-
tis are void, all very weak men, if their friends shall think
it for their  interest, may be  made, for this purpose, non
compos mentis; and the imagination  can scarcely explore
the field of mischief to  its limits.  After all, we are aware
it may be said, that this doctrine has heen exploded in this
state.  It is  true, cases have occurred, within the last fifty
years, in which it has been held, that a man might stultify
himself.  Such decisions are  found, however, only in this
state; and  our own state of society offers no reason  to
show that the operation of the English common law would
be inequitable here.   It cannot truly be asserted, that the
 adoption of  this principle would create new rights, incon-
sistent with  those  which the contrary decisions have con-
 ferred ; because this is not one of those cases in which a
 great mass of property has conformed itself  to the  decis-
 ions.   By the  English common  law,  the  disability of a
 grantor to avoid his own deed, by showing insanity, effects
 not the rights  of  his heir or executor; since, for them,
 this  is  good reason to avoid the  grant; (4 Rep. 124.) and
 the heir may even enter without a scire facias.   15 Vin. Abr.
  136. D.  As to the lunatic himself, the  provisions of our
  statute sufficiently protect him.   But if he  be permitted to
  plead his own  insanity, within what limits  shall this liber-
  ty be confined ?   Suppose one called as  a  juryman  de-
  clares himself  insane.   Is the fact  then to be ascertained,
  and  the question  settled ? Or one  is elected  to an  office,
  and   makes  the same objection to  serving.  The same
  question is to be settled before he can legally be excused.
  An idiot or lunatic is certainly to be considered as person-
  ally removed from all civil obligations and duties to socie- 
166
APPENDIX.
ty.(a)  But surely he should not be  thus  discharged, pn
his own plea, in a mere civil action.   The  public have an
interest in the question; and  no man should be disfran-
chised or discharged from his public  duties, until his idio-
cy or  lunacy has been solemnly established by a public
inquisition.  And can  the  law  be  called  a safe one, as
it respects  the public, or individuals, that a man may, by
mere civil plea, discharge himself from his duties to soci-
ety, and cut himself off from its privileges ?  In criminal
cases, indeed, the  party accused may excuse himself on
the ground of insanity; and with great propriety; for the
law,  here, only concurs with reason and humanity, which
revolt at the idea of punishing a man for the commission
of a  crime of which he must have been unconscious, and
the restraints to which  have been removed by the mere
act of providence.   But in such cases, the  question of in-
sanity is decided on a charge made by the public, in an is-
sue to which the public is party-  It  is also unavoidable j
because we are under a necessity either to  admit the plea,
or run the  hazard of punishing a man who is not a moral
agent.  It may be said, on the wh,ole, that this is always a
question of much importance; deeply affecting the welfare
of the party, and the interest of his  friends ;  and one in
which  society have  a near concern.  Its determination
should, therefore,  be accompanied with more solemnity
and  caution than can attend the hearing of an incidental
plea  in a civil action.
   In addition to the reasons alleged against the general
doctrine, it is  to  be observed, as to  this particular case,
which is an action of ejectment in the usual form, that from
the declaration the defendant has no  notice of the ground
of the plaintiff's claim, and therefore cannot  be prepared
to disprove his idiocy.
  (a) " Fools and madmen are tacitly 15 Vin. Abr. 137.
excepted out of all laws whatsoever." 
APPENDIX.
167
  E  Perkins and  Brace, contra.  The doctrine, that a
man can in no case be admitted to stultify himself, although
now received to  be law  in  England, was not  ancient-
ly so considered; nor has it  been, in modern times, uni-
versally approved of, or acquiesced  in; for to some, as is
said by lord Coke, the civil law, by which all acts done by
idiots or persons non compotes mentis, without their tutor,
are utterly void, seems more reasonable than the common
law. 4 Rep. 126.   There is, in fact, much absurdity in
permitting persons under the  age of  twenty-one  years, to
avoid their own deeds, because  they are supposed want-
ing in discretion to contract, and yet denying this privilege
to idiots and lunatics, who must be, at least, equally desti-
tute of discretion.  The common law, indeed, tacitly ad-
mits this absurdity; for while it leaves utterly without rem-
edy the party from whom  providence has withheld the
means of self protection, and who, therefore, more needs
the protection of the law, it still makes the grant of a per-
son non compos voidable by the king, and by the represen-
tatives of the grantor.  What good reason, if any, there
may have been for the distinctions which are fcund(a) be-
tween the cases of infants and persons non compos, as to
their capacity to contract, and for many consequent dis-
tinctions, it is now impossible to discover.   These distinc-
tions, which  seem  to have been  the result of a departure
from the course which common sense dictates, Fitzherbert,
in his comments on the  writ of Jumfi.iii no> compos mentis,
does not scruple to reject as groundless.   Mis opinion has
been alluded to, and is strongly opposed  to  the  modern
doctrine.  " Some have said, that writ  licth not  by him
who alieneth the land, because he  shall not disable him-
self, nor contradict his  own deed; but that scemeth to be
little reason;  for this is an infirmity which cometh by the
act of God, and it standeth with reason that a man should
           (a) See. Co. Litt 217.  4 Rep. ir>. 
168
APPENDIX.
show how he was visited by the act of God with infirmity,
by which he  lost his  memory and discretion for a time."
He then shows an analogy, as  to want of discretion, be-
tween insanity and infancy; and because an infant may al-
lege that he was within age at the time of his feoffment,
" a fortiori, then he who is of non sane memorie shall allege
that he  was  not  of  sane memorie at the time of his feoff-
ment or grant, for he who is of unsound memory hath not
any manner of discretion."  In this opinion, although  it
has been held no law, Fitzherbert is not  singular.   The
same has been, at least, intimated  by sir William Black-
stone, 2 Com. 296.; and Buller's  N. P. 172., says "The
defendant may give in evidence, that he made him sign  it
(an obligation) when  he was so drunk that he did not
know what he did; or that he was a lunatic at the time."
This was done in the  case  of Yates v. Boen, 2 Stra.  1104-
And in Thompson v. Leach,  3 Mod. 310., the court express-
ly say, that the grants of infants and persons non compotes,
are parallel, both in law and reason; and that as there are
express authorities(a)  that  a surrender made  by an infant
is void, therefore the surrender then  in question, made by
a person non compos, was also void.  Though this conclu-
sion will not, perhaps, be denied,  it will still  be said, that
the reason for which  the grant is void, if it  be insanity,
and not infancy, is not to be shown by the party himself.
But why is not the parallel to be carried  through ?   Be-
cause, in the  language of the common lawyers, " when he
recovers his memory, he cannot  know what  he did when
he was non compos mentis."   This, in reality, is exactly the
reason that common  sense  would suggest, why he should
be permitted to avoid his  grant.   The reason, however,
has been perverted  to a wrong application,  by indulging
in speculations too refined for useful practice, but which
cannot, perhaps, easily be  shown, on  abstract principles,
          (a) Lloyd v. Gregory, Cro. Car. 502. 
APPENDIX.
169
to be  false.   A man, it is  said, cannot remember an  act
done by him while he was  devoid of reason and of mem-
ory ; and  must, therefore, afterwards be unable to say any
thing respecting it.  Without inquiring how far mental de-
rangement may impair  the memory, we venture to say,
that the fact may as safely, and as consistently with good
sense, be allowed to be put in  issue by the party himself,
as by his heir or his executor.  In criminal cases, this is al-
ways permitted, though  it  would be difficult to  show, that
criminal acts committed by the party during his insanity
can better be remembered by him, than acts of a different
nature.  The maxim, however, there is reason  to believe,
is peculiar to the common law of England; and was, as
we are told  by Fonblanque, " endeavoured to be set  up by
the common lawyers in defiance of natural justice, and the
universal practice of all the civilized nations in the world."
Certain it is, the  maxim has  not yet been adopted in Con-
necticut, but  has been opposed to many contrary decisions;
as is agreed by the counsel for the defendant.   Here, in-
deed,  the reasons  against the adoption of this doctrine,
aside from these decisions, apply with peculiar force ; be-
cause here a scire facias  does not lie to avoid the alienations
of a person non compos mentis; nor can actions against  him
be set aside by supersedeas, as  in England.  So that,  not-
withstanding the  provisions of our statute, he is left with-
out efficient protection, if his plea of non sane memory  is
refused.
   By the Court unanimously.   It is not a question, wheth
er a deed, executed by a person non compos mentis, is void-
able, for want of capacity in the grantor to convey.  All
admit  that it is ; and that  such a deed may be avoided, in
a court of law, by the heirs of the grantor; although, it  is
said, that  by the  common law, this cannot be done by the
grantor himself.  That this doctrine is supported by decis-
ions of the English courts is true; and the reason assign-
                     23 
170
APPENDIX.
 by those courts is, that a  man  shall not be admitted to
 stultify himself.  But this  was not always the common law
 of England.  Certain it is, there is a writ in the  register
 given to a man who has been insane, and who,  during his
 insanity, has aliened his  land, to recover it, after his rea-
 son is restored.   In the time of Edward the first, non com-
 pos  mentis was  allowed to be a sufficient plea  to avoid a
 man's own bond.  It was  not until the reign of Edward
 the Third, that any scruple was entertained respecting the
 power of a person, who had  been  non compos  mentis, to
 avoid his act; and it was as late as the reign of Henry the
 Sixth  before there was any judicial determination, that a
 person who had  been non  compos mentis could not avoid a
 deed given by him, during his insanity.  This determina-
 tion was followed  by similar  decisions, and received by
 most of the  English writers  to be settled law.  Justice
 Blackstone observes, that  this doctrine sprung from loose
 authorities; and he  manifestly approves the  opinion of
 Fitzherbert, who rejects  the doctrine, as contrary to reason.
 He says also, that later opinions, feeling the inconvenience
 of the rule, have in many points endeavoured to restrain
 it.  This rule has  been supported with great earnestness
 by Powell, who  gives a reason  in support of it, which is
 not to be found in  the  books, viz. that  a different rule
 would open a door for  fraud ; because a man might feign
 himself non compos mentis, that  he might  enjoy the privi-
 lege of avoiding his contracts, if he chose to do  so.  This
 reason affords no additional support to the opinion, that a
 person non compos mentis  cannot avoid his deed; since
 the same temptation exists, in  the present state  of things,
 to commit fraud; for although the person  cannot, himself,
 avoid  his deed, by  showing insanity, yet by a  proceeding
 in England, founded upon a writ issuing out of chancery.
 to certain commissioners, a person may be found non com-
pos mentis, and immediately, in his life-time, a  scire facias 
APPENDIX.
171
may issue in the name of the king, who  by law is guardi-
an to all persons non compotes mentis; and the deed of any
one who is so found, by the proceeding, may thus be avoid-
ed.  Application may also be made, in such cases, in chan-
cery, by the attorney-general to vacate the deeds.  Thus.
that which cannot be done  directly, by the insane person
himself, in the  ordinary mode of proceeding in courts,
may be done circuitously, and that in the life-time of the
insane  person.  The temptation  to fraud is, therefore, as
great as if he were allowed to plead his incapacity in the
ordinary method.   When we  find that  the  ancient com-
mon law was, that a man might allege his own incapacity
to  avoid  his  deed, and  that this remained  law during  a
long period of time, and has never been altered by any
legislative act, but  the  contrary doctrine depends upon
decisions of courts, in direct opposition to the common law,
whose business it is to expound, and not to make, the law;
and that these decisions have been rejected as not law, by
some of the  most eminent lawyers, and with reluctance
submitted to by others, who reprobate them as productive
 of great  inconvenience; and that we  have no  such pro-
 ceedings by  scire facias,  or bill in equity, to avoid the acts
 of a p°erson  non compos mentis, during  his life;  and that.
 if this  be done at all, it must be by such person's alleging
 his incapacity, as is done in this case-we are not inclined
 to advise a new trial.
                             New trial not to be granted. 
172
APPENDIX.
 // is the duty of the Judge of Probate, before  the ap-
   pointment of a guardian to one as a lunatic, non com-
   pos, <yc. to give notice to  the parly that he may be
   heard on the  question, whether  such appointment be
   necessary or proper.
 Of proceedings iti courts of Probale.
           Chase, Jppeliunt, fyc. vs. Hathaway.—14 Mass. Jxep. 222.
   THIS was an appeal  from   a decree  of the Judge of
 Probate for the county of Bristol, assigning the said Hath-
 away to be guardian of the appellant,  who had  been ad-
judged and certified by the selectmen of the town of Berk*
 ley, of which he  was an inhabitant, to be incapable  of tak-
 ing care of himself.
   The reasons of appeal, filed in the  court below  pursu-
 ant to the statute, were as follow, viz  1. That he was not,
 at the time of the adjudication  of the  said selectmen, an
 idiot, non compos, lunatic or distracted person, and incapa-
 ble of taking care of himself.—2.  That he had  no  notice
 of the time and place, when and where the said selectmen
 made their  pretended inquisition and adjudication.—3.
 That notice  was not given  to  him,  that  any representa-
 tion or adjudication was  exhibited in said Probate Court
 against him; nor notice that any decree would be made by
 said court, affecting his rights;  and  that  he  was divested
of his liberty and property,  without any opportunity af-
forded  him of being heard upon the subject.—4. That the
said Barzillai Hathaway was  not a suitable person to be a
guardian.
  Baylies  for the appellant  relied principally  upon the
want of notice to him, of the inquisition of the  selectmen
of Berkley,  and of the proceedings and decree of the Pro-
bate Court: and he contended that, although  this  notice
was not expressly prescribed  by the statute, yet  that it
was matter of common right,  and the want  of it  would 
APPENDIX.                   173
 avoid the whole proceedings.—Relying upon this point, he
 offered no evidence in support of the first and fourth rea-
 sons of appeal.
   Tillinghast for  the  respondent.   As  this proceeding
 was wholly a matter of judicial discretion in the Judge of
 Probate, it must be presumed that  every necessary and
 proper measure was adopted by him, previously to passing
 the decree; although the record does  not exhibit every
 minute step in the  process.   It is worth consideration too,
 what desirable effect notice  to a person non ccmpos, and so
 unable to avail himself of such notice, can produce.
   The opinion of the court was delivered by
   Parker C. J.  This case comes  before us on  an ap-
 peal from a decree of the Judge of Probate for the county
 of Bristol, whereby the respondent Hathaway was appoint-
 ed guardian of the  person and estate  of the appellant, found
 to be a person non  compos mentis.  The  proceedings of the
 Judge of Probate are founded upon  the  return of an inqui-
 sition, made by the selectmen of the town of Berkley, of
 which  Chase is an inhabitant: and the inquisition was tak-
 en pursuant to a commission from the  Judge of Probate,
 which  issued upon  the application of certain inhabitants of
 said town,  according to  the provisions of the  statute of
 1783, c. 38, §5.
   It does not appear, by the copies of the probate  pro-
 ceedings  produced by the appellant, that he was present
 before  the Judge of Probate, or before the selectmen when
 their inquisition was taken,  or that he had any notice from
 the selectmen of the  time and place  appointed by them to
make their inquiry, or from the probate office of the return
of the commission, or of the time assigned by the judge for
considering and acting upon  it.    Upon the supposition
that some material  papers  had not been produced, we
should have postponed the hearing upon this appeal, until
full copies were produced:  but it being admitted that the 
174                   APPENDIX.
copies actually produced  shew the whole of the transac-
tions in the probate office, we must decide upon the suffi-
ciency of these transactions to support the decree of the
judge, which is appealed from.
  The want of notice to the supposed non compos is the
subject of two of the reasons assigned for the appeal: and
another contains a denial of the fact, that the appellant is
of unsound mind.  On this latter we should hear testimony,
and decide upon the liability of the appellant to the process
under the statute, if the proceedings in the Probate Court
had been correct in substance and in form.   But being of
opinion that the second and third reasons  of appeal are
sustained in point of law, we make no inquiries respecting
the state of mind of the appellant: because  upon another
inquisition, which may be taken  and returned, and adjudi-
cated upon by the Probate Court more correctly, the fact
can be better ascertained, than before us under the present
circumstances.
  There  being no provision in the statute  for  notice to
the party who is alleged  to be incompetent by  reason of
insanity  to manage his  estate, it seems that  the Judge of
Probate  did not think such notice essential to his proceed-
ings.   But we are of opinion that, notwithstanding the
silence of the statute, no decree of a Probate Court, so ma-
terially affecting the rights of property and the person, can
be valid, unless the party to be affected has had  an oppor-
tunity to be heard in defence of his rights.
  It is a fundamental principle of justice, essential to every
free government, that every citizen shall be maintained in
the enjoyment of his liberty and property;  unless he has
forfeited them by  the standing  laws of the  community,
and  has  had opportunity to answer such charges as,  ac-
cording to those laws, will justify a forfeiture or suspension
of them.  And whenever the legislature has provided that,
on  account of crime or misfortune, the publick  safety or 
APPENDIX.
175
convenience demands a suspension of these essential rights
of the individual, and has provided a judicial process, by
which the fact shall be ascertained; it is to be understood
as required that the tribunal, to which is committed the
duty of inquiring and determining, shall give opportunity
to the subject to be heard in  support of  his innocence or
his  capacity.
  It has been intimated that notice to an insane person
would be of no avail, because he would be incapable of de-
riving advantage from it.—But the question upon which
the whole  process turns is, whether he is insane : for the
presumption  of law is, that every man is of sound mind,
until the contrary is proved: and  it being possible  that
interested  relatives  might falsely  suggest insanity, with a
view to deprive the party of the power of disposing of his
estate ; that  very possibility  should be guarded against by
personal notice to him when practicable, that he may ex-
pose himself to the view of the judge, and prove by his own
conduct and actions the falsity of the charge.
   We should think it advisable,  at least, that whenever
 commissions shall issue from the Probate Court  to select-
 men, to take an inquisition,  they should contain  an order
 that notice be given to the party complained of, that he
 may appear before the selectmen.  This would be confor-
 mable  to the practice of the Court of Chancery in England.
 It is held  there to  be the privilege of the party, who is the
 object of a commission of lunacy, to be present at the exe-
 cution, and in a case before  the  Lord Chancellor,  he
 inclined to quash the inquisition, the  commission not hav-
 ing been executed near the  place of abode  of  the lunatic,
 and the order that he should have notice having been dis-
 obeyed.  A hearing before the selectmen,  however,  may
 not be essential,  although expedient; as the inquisition is
 not conclusive,  and there  is another opportunity to trav-
  erse it. 
176                  APPENDIX.
   But whether notice by the commissioners  is essential
or not, we are clear that it ought to be given  before the
adjudication in the Probate Court: and that without it such
adjudication is null and void.   A notification, served and
returned in the  manner practised with civil processes,
would be sufficient; the time ought to be prescribed by the
Judge of Probate.
   In Chancery it has  been held, that  a traverse to the
return of an  inquisition  is a right by  law, although the
Lord Chancellor is not dissatisfied with the return  upon
the evidence:  an order was therefore suspended, for the
purpose of taking the traverse.  This is done in England,
by carrying the case into a court of common law,  and tak-
ing the verdict of a jury.  With us  the  Judge of Probate
would try the  question.
   Indeed it would seem strange, that the  whole estate of
a citizen might be taken from  him,  and committed to oth-
ers, and his personal liberty  be restrained, upon an ex
parte proceeding, without any  notice of the pendency of a
complaint, upon a suggestion of lunacy or  other defect of
understanding: while  the  depriving  him  of the minutest
portion of tiat property, or the slightest detention of his
person, would be illegal  upon a charge of crime,  or of a
breach of a civil contract; unless all the formalities of a
trial were secured to him, by the forms of process and the
regular execution of it.
   We have been surprised of late,  to find  an irregularity
in the probate offices, in several of the counties ;  which
we think it important should be corrected  in their future
proceedings.  It consists in the omission to enter of record
orders and decrees, which often have an essential and final
effect, upon property to a very considerable amount.  In
the case now before us,  it appears  that  no formal decree
was ever passed, declaring  the appellant  non compos : or
if passed, that  the only evidence of it rests in the  recital, 
APPENDIX.
177
which precedes the letter of guardianship.   In a late case
in Cumberland, the only evidence of a decree allowing and
approving a last  will and testament, was of the same na-
ture.  This seems to us as irregular, as it would be for a
common law court to  issue execution,  without any evi-
dence  of a judgment,  except what might be contained in
the execution.
  A Court of Probate, although not technically a court
of record, ought to have a perfect record of all its orders
and decrees:  and it was for this purpose principally, that
the constitution established the office of register.  Orders
of notice, among other things, should be recorded: or if
 not, should be filed, with the return upon them: and in all
 important decrees, if previous notice has been given, that
 fact should be recited  in the decree.
   We have been thus  particular, with a view to produce
 uniformity of practice  in a court, whose duties and juris-
 diction affect, at one time or another,  every estate in the
 community.  And it is the more important, that this should
 be attended to in the probate offices; as any material de-
 fect will render the proceedings null at any  period, when
 they shall be brought in question;  it having been deter-
  mined that orders and decrees of those  courts may be
  avoided by plea: they not being, like judgments at common
  law, reversible by writ of error.        Decree reversed.
 \ person, to whom, as a non compos the Judcre of Pro-
  bale has appointed a guardian, is still  liable to b*.
  sued in a civil action, and to be committed  in  execu-

  ti0n'                Ex parte Leighton—14 Mass. EeP. 207.
  THE said Leighton was brought from the prison of the
county upon a writ of Habeas Corpus, on which the keeper
of the prison had returned  that he was committea on an
                     24 
178
APPENDIX.
execution issued upon a judgment against him in a civil
action, a copy of which accompanied his return.
  It appeared that Leighton  having been  duly found non
compos, the Judge of Probate for this county had appointed
a guardian of his person and estate, pursuant to stat. 1783,
c. 38, § 3 ; and that the action, in which the said judgment
was rendered, was commenced after the appointment of a
guardian as aforesaid.
  The Court, after looking into the statute, and  the  case
of Thacher fy al.  vs. Dinsmore, held the return sufficient,
and Leighton  was remanded to prison.
One who is non compos mentis, not having estate suffi-
  cient to give him a settlement in virtue thereof fol-
  lows- the settlement of his father, as well after he comes
  to age as before.
                     Upton vs. Northbridge.—15 Mass. Rep. 237.
  ASS UMPSIT for the expense of supporting Israel Hill,
a pauper alleged by the plaintiffs to have had his lawful set-
tlement in Northbridge.
  At the trial  before the Chief Justice, at the last  April
term in the county of Worcester, nothing was in dispute, but
the question of settlement; and  relative  to  that point, the
following facts were proved, viz.—The pauper was the son
of Jacob Hill,  who had formerly removed  from  Upton to
Northbridge, and had gained a settlement in the latter town
before the year 1793;  which settlement continued to that
time.   In  that year, and while  the father's settlement was
in Northbridge, the pauper came of age.   Afterwards, and
before the year 1802, the said Jacob Hill returned  to Up-
ton, and acquired a settlement  there in that year.   The
pauper removed with  his father to  Upton, not having left
the family, or gained any settlement in his own right. 
APPENDIX.
179
  The plaintiffs contended that the pauper, having the de-
rivative settlement of his father in Northbridge in the year
1793, continued that settlement to the time of his death,
which happened a short time before the commencement of
this suit, he not having gained a new settlement any where.
  The defendants insisted that the  pauper  remained of
his father's family, and so had his new setdement  with his
father in Upton,  in the year 1802: because  he  was non
compos mentis,  and incapable of  gaining a settlement  for
himself.
  There was much evidence offered to  the jury, tending
to prove the capacity or incapacity of the pauper.—It  ap-
peared that he had earned his living, by letting himself out
to farmers in the vicinity, making his own bargains, and
being considered honest and industrious ; but not entitled
to the common wages of labourers, for want of ordinary
skill in business.  He made small contracts relative to his
labour, taking  and  giving  promissory  notes to a small
amount occasionally, from and  to those  with whom he
dealt.  He resided at his father's house in  Upton  in the
winter,  and generally in the spring used to hire himself
out  for a week  or a month,  and sometimes more at a
time ; taking his wages,  commonly about half  what  wa.s
usual for labourers, in  clothes, grain, &c.  which he often
carried to his  father's ; usually going there once in  a week
or fortnight, while thus labouring abroad.  He was never
taxed, even for his poll; and was never enrolled with the
militia; was considered odd and strange, but was  always
 harmless.
   The  Chief Justice  directed the jury to return  a  verdict
for the plaintiffs or the defendants, as they should  find, from
the evidence, the pauper to be non compos mentis or other-
 wise ; and he stated to them, if  they were satisfied, from
 the  mann?r of his life and conduct, and the dealings of
 people with him. that he would  have been a suitable  sub- 
180
APPENDIX.
ject of guardianship for want of understanding, provided a
commission had issued from the Probate Office  to inquire
into that fact, they should consider him non compos.
  The verdict  was returned  for  the  defendants, on the
ground that the pauper was non compos, and so remained a
part of his father's family; although of the age of twenty-
one years, when his father removed to Upton.—The ques-
tion of law was reserved for the opinion of the whole court,
whether upon the facts the verdict was right.  If it was,
judgment was to be entered upon it: if not, it was to be set
aside, and the defendants to be defaulted.
  Parker C. J.   This case presents  an  important ques-
tion, which seems yet to have been left unsettled.  The
pauper, for whose support the suit is brought, is found by
the jury to have  been  non compos mentis; and  from the
facts proved, it is to be presumed  that he  has been  so
a nativitate.   In 1793 the pauper's  father  had  his settle-
ment in Northbridge;  and the pauper was then twenty-one
years of age, and but for  his imbecility was capable  of
acquiring a settlement himself.   The removal  of  his fa-
ther to Upton, and his regaining a settlement, would not,
but for the cause  aforesaid, have carried with it the settle-
ment of the pauper: but his settlement would have remain-
ed in  Northbridge, until he had  gained  a new one in his
own right.
  We are clear that, being non compos, he remained one of
his father's family,  and continued to derive his settlement
under him.   The pauper was not capable of any act, by
which he could gain a settlement for himself; and  there-
fore, like a slave  in former times, or a wife, or minor chil-
dren, his settlement changed with that, of his  father.
   As to the objections, which have  been raised in  the ar-
gument, that  a non compos  may inherit land, or may by
possibility  acquire  property  in other ways; we do not
mean to decide that a person  so circumstanced cannot,  by 
APPENDIX.                   181
virtue of his estate, acquire a settlement.   It has been decid-
ed that minors, who are forisfamiliated, may under the stat-
ute of 1789, c. 14, by  occupancy  of estate belonging to
them, acquire a settlement.  But in the case before us, the
pauper had no estate; and he  continued of his father's
household, as much as  his wandering life would allow; and
no town ever ventured to consider him as subject to any of
the duties of a citizen.             Judgment on the verdicU


If a lunatic  under guardianship be restored lo his rea-
   son,  he may make  a  will, although  the letters of
   guardianship be  unrepealed.
    Stone, appellant, &c. versus Damon and others.—12 Mass. Rep. 488.
   THIS was an appeal from a decree of the probate court
of this county,  disallowing a certain  instrument, offered
for probate as the last will and testament of Isaac Stone de-
ceased.   The  question being on the sanity  of the testator,
an issue was formed to the country, which  was tried before
 the whole court, pursuant to the statute.
   The will was dated  the first of July  1811.  It appeared
 that upon an inquisition duly made in April 1808, under
 the statute of 1783,  c.  38. § 3. the testator was  found to be
 non compos, and a guardian was assigned him by the judge
 of probate.   The court permitted the decree making  this
 assignment,  which  had never been  reversed,  to go in
 evidence to the jury,  but not as conclusive:  and upon
 proof of the state of  the testator's mind for some time be-
 fore and  after, making  the will,  the  jury  found him of
 sound mind.
   The counsel for the respondents then moved for a  new
 trial, on the  ground that the decree assigning the guardian
 to the testator as non  compos,  was conclusive on that point,
 so long as it  continued in force: and they cited the case of
 White, aim.  vs. Palmer. 
182                   APPENDIX.
  The court  afterwards  confirmed the opinion they had
expressed on the trial.  They observed that in the case
cited, the question turned on the right of the guardian to
prosecute and defend  actions, and to transact the business
of his ward :  that it would be inconvenient and unjust, if
one who had paid his debt to a guardian should be liable
to pay the same again to the ward,  upon proof that he had
previously recovered his  reason; or if a guardian, when
suing for a debt  due to  his ward, should be required to
prove  all the facts,  on which  the decree of the judge of
probate was founded.—That for these purposes the decree
might be deemed conclusive without injury to any one, as
it would only go to confirm the lawful acts of the guardian
during the continuance of his authority;  without  which
no person could safely deal with the guardian as such.—
But in the present case the question was on the personal
ability of the deceased to devise his estate ;  an act which
the guardian could not do  for him.   The decree was ev-
idence of his insanity  in 1808; and  like any other evi-
dence of that fact,would throw the burthen of proof on the
appellant, to shew  that the testator had afterwards recov-
ered his reason.  But evidence of insanity in 1808, would
not shew conclusively that he was insane in  1811.   If a
lunatic should be restored to his reason, and become per-
fectly capable of devising his estate, it would  be a  cruel
and unnecessary addition to his misfortune, to deprive him
of that right, and to set aside his will, because he happen-
ed to die  before he could apply to the probate court for
a reversal of the decree; or because those, who might be
interested in avoiding his  will, should by appealing, or oth-
er means of delay, prevent the reversal of the decree be-
fore  his death. 
APPENDIX.
183
Upon  the  question,  whether a guardian shall be ap-
  pointed  to a person non compos mentis,  the court
  will receive other evidence than what arises from an
  examination of the person himself.
     Ithamar Brigbam versus Abraham Brigham.—12 Mass. Rep. 505.
  THIS was an appeal from a decree of the judge of pro-
bate for the county, refusing to appoint a guardian to the
said Abraham, upon the complaint of the said Ithamar, his
brother,  who  represented  him  as non compos mentis,
and he  had been found such by the inquisition of the se-
lectmen of the town of which he is an inhabitant.
  When the appeal came on to be heard  in  this court,
Draper, for the appellant, objected to any evidence  being
received as to the  degree of intellect of the party; con-
tending that the only  trial must be by the inspection and
examination of the person himself.
  But the court overruled the objection,  and after examin-
i ng several witnesses,  the  party himself not being pres-
ent, affirmed the decree of the judge of probate.
An inquisition by the selectmen thai one is  non compos
  and an appointment of a guardian for thai cause, are
  not justified by evidence that the person is old, and
  has become less careful of his properly.
          Darling, Appellant, kc. versus Beru.et -8 Mr.ss. Rep. 129.
  THE decree of the probate court appealed from in this
case had appointed the respondent Bennel guardian of the
person and  estate of the appellant as a person non  compos
mentis.    This, decree  was founded upon an  inquisition
made  by the selectmen of the town of Middlcborough of
which the appellant,  is an inhabitant, by virtue of a warrant
issued by the judge of probate, pursuant to the provisions
of the statute 1783,c. 38. §3. 
184                   APPENDIX.
  Upon examination of witnesses it appeared that the ap-
pellant was seventy eight years of age ;  that for a man of
his years he possessed good rational powers, that his  chil-
dren were profligate and intemperate ; that the father for
sometime past had been under their influence, and had been
induced to spend his property for their undue indulgence :
and that until within a few years he had been uncommon-
ly careful of his property : and the alteration of his habit
in this respect seemed to have been the ground of the opin-
ion which the selectmen had formed in  the case, and to
have been also the foundation of the decree complained of-
  By the court.  The  judge of probate was sufficiently
authorized,  by  the  inquisition  of  the selectmen, to make
the decree which he did.  But upon the facts now before
us there is certainly no sufficient foundation  to  place the
appellant under guardianship as a person non compos mentis.
Perhaps it would  be proper to place guardians over the
children, who are causing their father to waste his  estate
in gratifying their  vicious  propensities.   Further, if the
appellant cannot be otherwise protected from the undue
practices and impositions of his children upon him, it may
yet be discreet and proper for  the judge of probate, upon
 due representation  from the selectmen, to place him under
 guardianship as a spendthrift, that the family may be pre
 served from want, and the town saved from the expense ai
 their support. 
APPENDIX.                    185
On the question of the  sanity  of a testatrix at the time  of
  executing her Will, which was in issue to the country,  the physicians were
  enquired of, whether from the circumstances of the patient) and the symp-
  toms they observed, they were capable of forming an opinion of the sound-
  ness of her mind; and if so  whether they from thence concluded  that her
  mind was sound or unsound : and in either case they were required to state
  the circumstances or symptoms, from which they drew their conclusions.—
Where the testatrix at 11  o'clock in the morning gave directions to her scriv-
  ener as to making her Will, which she executttd, at six in the evening and
  died two hours after; the jury were directed, if at the time of giving her di-
  rections she bad sufficient discretion for that purpose, and at the time  of
  executing the Will she was able to recollect the particulars which she had
  directed, they might find her of sound mind at the time of executing the
  Will.
                      Hathorn <§• al. vs.  King.—8 Mass. Rep.  371.
   THIS was an appeal from  a decree of the probate court
 of the  county of  Essex, approving and allowing  the last
 Will of  Mary Norris,  deceased.   Among the reasons of
 appeal, one  was  that  the deceased was not of sane mind
 at the  time of executing the will,  and on this an issue was
 formed to  the country*
   On  trial it appeared that the scrivener was called in  at
 11 o'clock in the morning of the  21st of March last, and
 received from the testatrix directions as to the preparing
 her  will.   She was then very ill,  and continued  sinking
 until 6 o'clock in the evening, when she executed the will,
 and  at a quarter past 8 o'clock the same evening expired.
    The council  for the appellants moved to enquire of the
 attending physicians, whether in their opinion, at the time
 of executing the will the deceased was  of sound  disposing
 mind  and  memory.
    This question had been heretofore confined  to the sub-
 scribing witnesses,  but it was urged  that the opinions  of
 skilful physicians,  who were present, were of more value,
 and  ought to be received rather than those of the witnesses,
 who might possess  no  skill,  and had but slander means of
 forming an opinion.
                      25 
186 -
APPENDIX.
  On the other hand, it was said that the question of san-
ity must be determined  by the conversation and actions
of the party. These were the only standard. The exami-
nation proposed  would put  the physicians in the place of
the jury.
  Per curiam.  The physicians may be enquired of, wheth"
er from the circumstances of the patient, and  the  symp-
toms they observed, they are capable of forming  an opin-
ion of the soundness of her mind, and if so,  whether they
from thence conclude that her mind was sound or unsound:
and in either case, they must state  the circumstances or
symptoms, from which they draw their conclusions.
  After the examination was  finished, the  evidence was
minutely summed up to the jury by  Sedgwick, J.  and the
jury were instructed by him  (Sewall and Parker justices
expressly concurring) that if they should be of opinion,
that the testatrix, at the time of dictating the will, had suf-
ficient discretion for that purpose,—and that at the time of
executing the will, she was able to recollect the particulars
which she had so dictated;  they might find their verdict,
that she was of sound and disposing mind and memory at
the time of executing the will.—And  they found  accord-
ingly : and the will was proved, approved and allowed by
the court. 
INDEX.
                                 A.

ACCESS, denied when, 28.
Actions and Suits, by a lunatic, 85—difference between suits of infants and
  lunatics, 85.
Affidavits, not to be sworn before the petitioner, 22.
Alienee, may traverse, 36.
Allowance, is for maintenance of the lunatic,  not for the committee 48, 49-
  may be increased, 50—its proportion of the estates, 54.
Annandale case, Scotland, 57 and seq. 69.
Ansioer, referred for scandal, 90.
Appeal, from Lord Chancellor to the Privy Counsel] 21>.43.  of felony, 142.
Apoplexy, often becomes palsy, 56.
Approver, who cannot be, 142.
Arbitrator, lunatic cannot be, 101.
Arnold's case of murder, 145.
Attorney-General, is party to a bill to avoid a lease, 122.
Attorney, a lunatic cannot act, 101.
Attornment, 79.
Audita querela, when lies, 98.

                                 B.
Bail, when the lunacy is subsequent to the arrest, 88
Bankruptcy, of a committee, 46.
Braidroood, Mr. his skill, 83.
Buthley's case, fine of an ideoti 132.
                                 c.
Caveat, against a commission, 17.
Chancellor, Lord, origin of his authority, 21—may make a provisional  order
  and stop a lunatic in his journey, 16*—may commit parties for not producing
  him, 28—complaint against his grant lies to the King i» Council, 43.
Charitable Uses, a devise to, 111.
Church Lease, the fine paid by the committee, 60.
Clergyman, becoming lunatic the consequences, 17, 80—-legacy for, 71.
Coal Mine, to be worked, 71. 
188
INDEX/
 Commission of Lunacy; where the estate is too  small for it, a petition, 17—
   the evidence to maintain it, 21 and seq.—does not extend to Ireland, 23—
   method of executing it, 23 and seq.—if denied, the consequence, 26—wit-
   nesses may be summoned, 26—what are  void returns, 29—good returns, 30
   and  seq.—a new one may issue on any mistake, 34—proceedings  are on
   the law side of the court and error liesj 38.
 Commissioners, their power if the lunatic is not produced, 26—ditto to sammon
   witnesses, 26.
 Commissioner, may be a witness, 84.
 Committee, cannot bring an action in  his own name, 13—cannot join issue
   when, ?7—resembles the  ourators of the civil law, 42—who is  a proper
   committee, 43 and seq.—feme covert, 44—of real and personal estate, 45—
   if he become bankrupt, 46—a brother, 46—must not gain by it, 46—sex of
   the lunatic is considered, 46 and seq.—does  not extend to executors, 47—if
   husband, his expences considered,47—a master in Chancery ineligible, 48—
   is rather a bailiff than a trustee, 50—cannot repair, and  other acts, 50—his
   duty, &c. 51—his power limitted, as to leases, mortgages, timber, tifc.  8ft.
   5l—his securities, 53—interest of money  in his hands, 54—passing  his ac
   counts, 54—allowance for  maintenance,  54—his  interest in the estate  has
   relation back to the lunatic's birth, 54—if no committee, a receiver, 55—to
   pay into court his  balance, 55—hi? duty and powers, 55—is not tQ changa
   the property why, 55—may renew a church lease &cc. 60—is  a mere bailiff
   and cannot cut timber when, 61—may lay out money for repairs, 63—if he
   abuses his trust by changing the property, 65, 68—but may spend one estate
   upon  the other, 68—this by order of court, 71—to* work  a coal mine, 71—
   may bring  ejectment, 72—cannot make leases or mortgages, 72—nor grant
   copyholds, 72—may be assigned to cefend suits, 86—may sue  and defend,
   86—appear, fyc. in Exchequer, 90—may accept  surrenders of leases, 121—
   may surrender  them,  122—cannot  grant lands, 125—may grant  leases
   when, 123.
 Contract gives interest  enough to traverse the inquisition, 39—sanity the  es-
   sence of contracts, 101,104— when carried into effect, 103-5 and seq.—not
   set aside for drunkenness, 103—if it be just, 10..,—mutual consent therein,
   104—if completed while sane, 105—settlement, 105—avoidable receipts for,
   105—in a lucid interval, 119—not set aside where fairly made with notice of
   insanity, 122.
 Conveyance, to trustee for a lunatic, 37—after office found are void, 115.
 Copyhold, cannot be granted by a committee, 72—a steward being lunatic, 101
  —alienations void, 115.
 Copyholder, a lunatic, 44—custody of land, 87.
Costs, not allowed whe n, 37—in general, 77—on a hasty traverse, 78.
 Counterfeiting insanity, 157.
County, of lunatic's abode, thereto the commission issues, 16,25.
Cusfs case, fine, 133.
Custody, of a  lunatic or ideot, U—of a dean, 49—if limitted, 31—costs fer
  the  non-production, 78. 
INDEX.                           189
 Custody, connot be granted to the use of the grantee, 16—cannot be devised,
  45—except during minority, 47.

                                  D.
Damages, in civil cases rather to be relaxed, 142.
Deaf and Dumb, how defined, 4—custody of, 45—their recovery, 74—are
  not lunatic, 83—may be witnesses, 84—to answer a bill, 87—their will 92.
Deed, executed by a lunatic, 88.
Definitions, 1 and seq. 150.
De Idiota, inquirendo, 20—ideocy how tried, 20,33—superseded by  the com-
  mission, 23.
Demisit, explained.
Demurrer,  if lunatic is not named in the bill, 86.
Descent, of lands  to  a lunatic, 111.
Devise,  of land for a lunatic, 47.
Disabilities, what, 85—to enfeoffe and devise,  111.
Drunkenness, 1, 9,  87—is a disability to invalidate a will, 92—is sufficient to
  support a commission,  103—to avoid acts, 119.
Dum nonfuit, writ of, 111.
Dumb, ordered to answer, 87—may marry, 82-

                                   E.
Ecclesiastical  Court,  in what case  cannot interfere, 48—its jurisdiction in a
  question of legacy, 89—as to wills, 96—its practice therein, 98.
 Ejectment, to be brought in a lunatic's name,  72—the service of the declar*-
  tion, 72.
 Epileptics, 2, 17.
Equity,  none between representatives, 65, 71.
 Error' lies on lunatic proceedings, 38—limitation of, 131.
Estate, real or  personal cannot be  altered, 56—may  be sold to pay debts,
  &c.  125.
Essoigner, lunatic cannot be, 101.
Exchequer, its jurisdiction, 89—as to surrenders and fines, 89.
Executor, a lunatic, probate of a will, 98.
                                   F.
Feme Covert,  may be committee, 44.
Feoffment, by  whom cannot be made, but how it eannot be avoided, 112—
  what is a good, 113—in pais, 113, 130—voidable, 113.
Ferrers, Lord, case  of murder, 145,
Fine, are binding,  113. 126—of capacity, 126—relief against it, 127—and on
  account of fraud, 128—cognizable where, 129—how it has 129—the disabil-
  ity  to be proved as to limitation of time, 131—Bushley's  case, a fine main-
  tained  though the party was  a crippled ideot, 132—Lewing's case the like,
  132—Cust's case, 133.
Frauds,  statute of as to wills, 93.
Furor Uterinus, though bodily, may affect the mind, 109-
Fury, state of,  10. 
190                           INDEX.
                                 G.
Grants, by deed in pais when avoidable,  108, 104.
Guardian, under statute of 12 Car. II. similar to socage, 47-8—after decree,
  48—and when the committee was the plaintiff, 48.

                                 H.
Habeas Corpus, to produce the lunatic, 27—its return, time allowed 27—con-
  sequences of not producing the lunatic,  27—on improper treatment 27.
Hadf eld's case, 148.
Hale, Lord, his definition of insanity, 150.
Heir at Lata, being lunatic, 26—of a lunatic may avoid his acts, 112* 119,121
                                   I.
Ideocy, how tried under the old writ, 20,25—claims protection rather than
  punishment, 138.
Ideot, what, 1,2,3—custody of, 11—not liable to forfeiture, 12—difference be-
  tween ideot and lunatic, 13,15, 16—conveying him abroad, 25—tried by in-
  spection, 22—a finding for several years is bad, 31—his death, 75—appear-
  ance in person, 88—answer by his guardian, 90—conveys sub modo only,120
  —cannot levy fines, 131—but if he do, held good why, 131.
Improvements of the estate, 68.
Incapacity, acts done under an, is an insufficient finding, 5—for marriage, 29.
Infants, difference between them and lunatics, 15, 59.
Information, by Attorney-General, 86.
Inquisition, is not conclusive evidence, 34.
Insanity defined,  1 and seq. 150—the same rules for judging of  it in equi-
  ty and common law, 3—a good plea or not, 88—difficulty of establishing rules
  for proving it, 106—before arraignment, trial, or execution, 139—of proving
  it, 157.
Inspection, 22,25—a second, 3i.
Intemperance, I.
Issue, on a traverse, 34—an issue of lunacy, 89—double on a traverse doubted,S8.
Jurisdiction, in cases of lunacy, 59,67.
Jury of the  country to try the lunacy, 23—may find without inspection, 25.
                                   L.
Laches, when not imputable to a lunatic heir, 26,130—when prejudice an ide-
  ot or lunatic, 129—bars their entry, 130.
Land, subject to services, 57.
leases, cannot be granted by committee, 72—they may by  order when, 126—
  may be surrendered to him, 121—premiums for, how applied, 121—may be
   surrendered by him, 122.
Legacy, to lunatic to put him into holy orders how applied, 71.
Leioing,s case, fine 132.
Limitations, statute of, 90—disability to be proved, 131.
Livery and seizin bar escheat, 113—and render the feoffment'not voidable, 114.
 Lords of manors, their right, 12,44 -may grant lands, 124—their  stewards,
   125—take by escheat against a disseizor when,  139.        . 
INDEX.
191
Lucid Intervals, defined  1,3,6—difficulty of proof, 108—of making a will
  therein, 97—of crimes committed during that time, 141—J'idge Hale's opin-
  ion as to total or partial insanity, 141—acts maintained, 123—how proved,
  —124.
Lunatic, defined, 1, 3,4, 31—abroad, 5,23,24—belongs to bis county, 16,23—
  produced  for  inspection, 22—may petition for an examination, 22—in Ire-
  land, 23—cannot traverse if he  recover, 36—if a copyholder, 36—his com-
  fort  and maintenance the  first concern, 48, 49—before his representatives,
  69—of his recovery, 73—his consequent steps, 73—his death, 75—must be a
  party  to  bills in equity, 86—after arrest not discharged, 88—at date of a
  deed, 88—how he appears and defends, 90—resident abroad, 100—if he can
  purchase, 101  and seq.—cannot avoid a descent, 110—cannot devise to char-
  itable uses, 111—cannot enfeoffs, 111—cannot stultify himself, 111, 4rc.—
  how far he can avoid his own acts, 111 and  seq.—his disability may be  shewn
  by his privies in  blood, 114—may consider  and avoid his acts after recovery,
  116—-can convey sub modo only, 120—cannot levy fines, 133—maybe  seized
   and confined  by any one, 137—if he  commit criminal acts why not punish-
  ed   138 and seq.—his pleading insanity  to a criminal  prosecution,  139—
  cannot be felo de se, 143—if he commits murder, 144—cannot be punished
  for treason as an example, 147-8—the ancient law thereon, 147—verdict and
  detention, 154—intruding at the King's residence, 155.
                                   M.
Madhouses, prosecution for detention there,  150.
Madness, defined, 4, 150, 151.
Marriage,  of lunatic, 80—persons contriving it, 81—if consummated iti  a lucid
  interval, 81—void, 82^-of dumb persons good, 82—issue of it, 83—if previ-
  ously contracted, 83.
Melius inquirendem, only grantable by the Crown, 34.
Memory, sound, what, 4.
Mental Debility, a guardian may be appointed, 4.
Merger, where there is a confusion of rights, 70.
Moon, its supposed influence, 2.
Mortgage, paid off out of savings, 58.
Mortgagee, his heir a lunatic, 99.
Murder by a lunatic, 144—cases of Arnold and Lord Ferrers, 14 J

                                   N.
.Afew Trial, after verdict of« not insane," 110.
Next of Kin, a witness, when, 84.
Mn compos mentis, vhat, 1, 2, 3-proof of, 21-the legal term, 31-a suffi-
  cient plea to avoid a bond when, 8.
Mm est factum, pleaded to a lunatic's bond,  88-to a bond of one drunk, 103.

                                   o.
Office, cannot be found after lunatics death,  115.
Orders, to be filed with clerk of the custodies, 5*. 
192                            INDEX.
                                  P.
Physician's harsh treatment of a lunatic how punished, 19.
Plea, to stultify bad, 112—its history, 120.
Prerogativa Regis, its principle and use, and history, 11,14—power and trusj
  of lunatic's estate, 14, 34—the Crown does  not seize on title without posses-
  sion, 41—hath not custody of copyholders, 44—commits  the  care  to  the
  Crown, 66—has relation back, 110—as to alienations of copyhold, 115.
Presentation, to a church, 80.
Private persons may confine lunatics, 44.
Privies, in blood and of estate, 114,119.
Property may be changed by the Court only,-62, 69.
Provisional  Order,  while  lunacy is in question, 16—to stop a lunatic on his
  journey before any commission has issued,  17—as to property, 22.
Punishment, its principle and motive, 140.
Purchase, maintained after apoplexy,  56—on lunacy,  104—when avoided by
   heirs 104—under value set aside notwithstanding fine,&c. 127.

                                   R.
Real Estate,not\.o be sold to pay debts,  71.
Receiver, is as a committee, 46,57.
Recovery of the lunatic always to be looked to, 46,73—a common, its opera-
   tion, 37—bad where uses bad, 130—maintained  though by lunatic, 133—set
   aside when, 134.
 Re-entry, 79.
 Rents and Profits) how to be applied, 59.
 Rcpmrs, out of rents and profits, 59-               .
 Representatives,no equity between real and personal, 65,71.
  Returns, to commission, delaying them, 22—what they should contain, 29, 30—
   finding ideocy for years, 31—on dower, 29—good and bad returns,  St  and
   seq.—omitting lucid intervals, 32.
 Rent Charge, avoidable by the heir, 113.

                                   s.
 Settlement, parochial, of ideots, 135.
 Statutes, cited—
       9  Henry HI—Magna charta, 11.
      18  Edward I—de lev. fines, 129-
      17  Edward II—c. 9, and c. 16—De  prero. regis. 2, \i, 14,15, 43,64,66.
      18  Edward III c. 53—Attornment, 79.
      26  Edward III. c. 63—Ditto, 79.
      25  Edward III. st. 5, c. 2--Treason, 147.
       2 Edward VI. c. 8—Traverse of Inquisition, 34, 39-
       18 Hen. VI. c. 7—Traverse of Inquisition,35.
       4 Henry VII. c. 24—Fines, 129,131.
      12 Henry VIII. c. 46—Court of Wards, 14.
       3 Henry VIII. c. 20—Treason, 141,147. 
INDEX
193
   34 Henry VIII. c.  5—Wills, 91.
   18 Eliz. c. 3—Settlement, 135.
   83 Eliz. c. 3—Writ of error, 131.
   21 James I. c. 16—Limitations, 31,90.
   12 Car. D. c. 24—Court of wards abolished, 14,47.
   29 Car.  U. c. 3. Attestations of wills, 93.
   1 and 2 Philip and Mary,c. 10—Treason, 141, 148.
   12 Anne, c. 23—Vagrants, 44.
   4 George II. c. 10—Trustee, 23, 99.
   13 George II. c. 24—Vagrants, 44.
    15 George II. c. 30—Marriage, 82.
    17 George II. e. 25—Vagrants, 44,136,141.
   14 George HI. c. 49—Madhouses, 11.
    39 and 40. George III. c. 94—Verdict and detention at trial, 154.
    43 George in. c. 75.—Sales and leases, 125.
Stewards, of manors, may grant lands, 125,
Suicide, a lunatic cannot be felo de se, 143—common error that all suicide is
  lunacy, 143—Montesquieu's opinion, 144.
Surrenders, are void, 113,116.
                                  T.
Term merges when, TO.
Tender  of idiot's lands, 54.
Testimony, 83—bill to perpetuate, 86,96.
Timber, cutting for repairs, 63—its produce is personal estate, 61—cut to in-
  crease the lunatic's comfort, 64—cut tortiously, 65—may be cut for the na-
  vy, if, 66.
Transfer, of stock, by lunatic's trustee, 110.
Traverse, is dejure, 34—causes for, 35—its consequences, 35—on what grounds,
  35—binding on whom, 36—costs  on, 37—the lunatic is a defendant, 38—on a
  second inspection, 38—a stranger cannot traverse, 38—is  good by one not
  generally insane, 39—for not executing the commission in  the proper coun-
  ty, 40—general ground for traverse, 40 and seq.—a person contracting with
  the lunatic may traverse, 39—costs given for a hasty traverse, 78-
Treason, by lunatic, 146—the ancient law, 147—Hadfield's case, 148.
Trespass,hy person wanting discretion, 141.
Trustee, of a lunatic cannot retain lands to convey over in case  of lunacy, 16
  —becoming lunatic, 98—howto convey, 99—if abroad, 100—how transfer
  stock, 100--doubts as to the jurisdiction given by the stat. 100 without a com-
  mission, IOC.
Trusts, their moral obligation, 49—not of interests, 51

                                  V.
Vagrants, 44—confinement of, 141.
Union,  of rights, 85.
                                  w.
Wards, court of, abolished, 14.
                            26 
194                            INDEX.
Watte, 64—in the stat. deprer. regit, 66.
Weakness, of mind, 5—how bound, 36—may support a commission^ 103—as to
  avoiding acts, 116*8—as to a will, 119.
Wife's separate estate, if lunatic, 52—if an ideot, 82.
Will, under stat* of 12 Car. II. need not be proved, 47.
Will, obtained in extremis, #c. 4—any fraud or imposition sets it aside, 5,27—
  capacity for, 91—of ideots, 91—qualifications,  92—attestation, 94—proving
  insanity, 95—prohibition denied to the ecclesiastical court, 96—made under
  strong impressions, 96—executor is a good witness, 96—lucid interval* 97—
  of opposing the probate, 98.
Witness, when disqualified, 84—-to a will, his duty, 94.
Writ de ideota inovirendoi SO.

                                  Y.
York, custom of, 47. 
 
I
I



!
i
i 
 

-%■
■ i  '
*