prærogativa regis (which is said (q) not to be introductive of a new right, but to be only declaratory of the common law), differ as to the provisions for the care of the property of an idiot and a lunatic. In the one case, the King, having an interest and personal benefit, is said to have the custody of an idiot, his lands &c.; but with respect to lunatics, he is only to act as parens patriæ, as the person to take care of those who are incompetent to take care of themselves: the statute expressly providing, with respect to lunatics, that the King shall not take the profits of their lands for his own use; but is bound to find necessaries for them and their household (r); but as to what is not in itself profitable, as the presentation to a church, the King takes (s).

The statute then proceeds to direct, that, if the party shall die in this condition, the residue shall be distributed for the benefit of his soul, according to the superstition of the times in which the statute was made; which is certainly now (1) to be taken as a direction to preserve the residue for those entitled to the personal estate of the lunatic on his death, independent of that statute. In the case of a lunatic, the King is a mere trustee; in the case of an idiot, he has a beneficial interest. In point of form, in the terms of the grant to the committee, the grant of a lunatic's estate is a grant liable to account; and the other is a grant to a certain degree without account; that is, the King is not bound to do more than provide for the maintenance of the idiot, and is entitled by his prerogative to the surplus of his estate (v).

The case of a lunatic tenant in fee cannot, it is conceived, be assimilated to that of tenant for life impeachable for waste; as the latter has no property in the timber at all; and therefore waste by him has a different consideration from that waste mentioned in the statute de prærogativá regis, which only means without destruction; and does not hinder the committee, under the authority of the King, from making use of those opportunities, which the property of

(q) 4 Rep. 126-7; 2 Ves. jun. 71. But see 2 Inst. 14, contra.

(r) Holmes's case, Dyer, 25 b. (s) Com. Dig. Idiot, (C).

(t) See statutes 31 Edw. 3, c. 11; 22 & 23 Car. 2, c. 10.

(v) In re Fitzgerald, 2 Sch. & Lef. 436; 1 Fonbl. Tr. Eq. 56, 57, 3rd edit.

the lunatic would enable him, if in possession of his senses, to use (w). Lord Chancellor Loughborough held, that an order for the committee to cut timber in a state of maturity was perfectly right, being for the advantage of the lunatic and of the estate. The timber when mature was the fair fruit of the estate; and, instead of being waste and destruction to cut it, it would have been waste and destruction not to have done so (x).

Copyholds are not within the statute de prærogativá regis (y).

With respect to the custody of copyhold lands of an idiot or lunatic, the lord has not any power over such lands except by special custom; in which case, if he appoint a committee, such person has no interest in the lands, but is considered as a bailiff, appointed by the lord to keep possession for the lunatic (≈).

In the absence of special custom, it does not distinctly appear, who is entitled to the custody of the copyhold lands of an idiot or lunatic. It is laid down by Lord Coke, that the King shall not have the custody of land which an idiot holds by copy, for that is but an estate at will by the common law; and if the King should have the custody of it, a great prejudice would be done to the lord of the manor; but yet it is said, that all alienations made by an idiot of his copyhold after office found shall be avoided by the King (a). It is laid down that the Court of Wards had no power to make orders respecting the copyholds of an idiot copyholder, but that it should be done in the Court of the lord of whom the copyhold is held (b). And it was resolved in

(w) Ex parte Bromfield, 1 Ves. jun. 461; S. C. 3 Bro. C. C. 510.

(x) Oxenden v. Lord Compton, 4 Bro. C. C. 234. See post, ch. v. s. 10. (y) 4 Rep. 126; Co. Cop. sect. 55; Bac. Abr. tit. " Idiots & Lun." (C). Watk. Gilb. Ten. 291, 400.

(z) Cocks v. Darson, Hob. 215; Noy, 27; Drury v. Fitch, Hutton, 17.

(a) Beverley's case, 4 Rep. 126b;

Bac. Abr. tit. " Idiots & Lun." (C). (b) Dyer, 303 a.

The rule of the Court of Wards was, that if an idiot had not any goods or lands, except copyholds held of a subject, the King should not have the custody, but the lord of whom the copyhold was holden; but if he had any other, then the copyhold also. Ibid. n. (46).

one case (c), that the lord should have the custody of one that was mutus et surdus, although no custom was laid, the question being between the prochein amy and the lord; and the reason given why the lord should have the custody is, because otherwise he would be prejudiced in his rents and services; which reason extends as well to cases where there is no custom, as where there is, and would be equally applicable to idiots and lunatics, as to one who is mutus et surdus.

Provision is now made for the admittance of lunatics to any copyholds to which they may become entitled, and for payment of the fines to the lord of the manor of which such lands are holden (d).

And it is provided (e) that after the lord shall have been paid his fine and costs, it shall be lawful for the lunatic or his committee to enter upon, and take possession of, and hold the copyhold land according to the estate or interest the lunatic shall be lawfully entitled to therein, and the lord of the manor is required to deliver possession thereof accordingly; and if the lord, after payment or tender of the fine and costs, shall refuse to deliver the possession of the copyhold, he is liable to make satisfaction to the persons kept out of possession for the damages they sustain.

The modern acts of Parliament (f), enabling the person intrusted by the King's sign manual with the care and commitment of the custody of the persons and estates of lunatics, to make orders for selling, mortgaging, leasing, or otherwise disposing of their estates, expressly extend to copyholds.

The prerogative of the Crown does not prevent a private person from confining a relation or friend who is mad (g), under the regulations made by several statutes (h). The right of the Crown to control and manage lunatics and their estates commences with the finding of the office, or inquisition of lunacy (¿).

(c) Evers v. Skinner, Cro. Jac. 105.

(d) 1 Will. 4, c. 65, ss. 3, 5, & 6. (e) Id. s. 7.

(f) 59 Geo. 3, c. 80, s. 2; 1 Will, 4, cc. 60, 65, s. 2.

(g) 2 Roll. Abr. 546; see 17 Geo. 2, c. 5, s. 20.

(h) 14 Geo. 3, c. 49, repealed by 9 Geo. 4, c. 41.

(i) 8 Rep. 170 b.

SECTION II.

Of the Jurisdiction of the Court of Chancery.

BEFORE the Court of Wards was erected, the jurisdiction, both as to idiots and lunatics, was exercised in the Court of Chancery, and therefore, whilst the former existed, all commissions respecting them were taken out of Chancery and returned there; and after the abolition of the Court of Wards, such jurisdiction reverted to the Court of Chancery (a). In the case of an infant, the Lord Chancellor is acting as the Court of Chancery; not so in lunacy; but under a special separate commission from the Crown, authorizing him to take care of the property, and for the benefit of the lunatic (b). When a person is found an idiot or a lunatic, the King alone has power to grant the custody of the idiot or lunatic and his estates, by sign manual; and, therefore, to save repeated applications to the Crown, it has been the practice for the Crown to intrust such power by warrant under the sign manual, countersigned by the two secretaries of state, to the Lord Chancellor, on his coming into office; by virtue of which warrant, and not as Chancellor, he has the ordering and disposition of the persons and estates of idiots and lunatics; and such warrant confers no jurisdiction, but only a power of administration.

This authority is given to him (as stated in the warrant) in consideration of its being his duty, as Chancellor, to issue the commission on which the inquiry as to the fact of idiotcy, or lunacy, is to be made. This branch of the prerogative may be exercised by any officer the Crown thinks. fit; it is ordinarily delivered to a great officer of state, but not necessarily to the keeper of the great seal (c); an instance is mentioned of the Lord High Treasurer having the

(a) Corporation of Burford v. Lenthall and others, 2 Atk. 553. (b) Ex parte Phillips, 19 Ves, 122.

(c) 4 Bro. C. C. 233; 2 Shaw & Wilson, 525.

warrant (d); but if it were granted to any other officer of state, it would not enable such officer to act after the grant made to the committees, but merely to direct such grant.

The warrant confers the right of making grants of the custody of the persons and estates of idiots and lunatics, and empowers the Lord Chancellor, or other person to whom it is given, to prepare and pass such grants, without any further special warrant from the Crown (e).

Lord Chancellor Redesdale, however, expressed a doubt whether the warrant thus given to the Chancellor, was an authority for passing letters patent, granting to any person, for his own benefit, the surplus profits of the estate of an idiot, and inclined to the opinion that a grant of the lands of an idiot without account cannot be made without the King's special warrant (ƒ).

As the King is only entitled to the profits of the estates of a lunatic for the support of him and his family, and is bound to render the surplus to the lunatic when he recovers his understanding, the King cannot grant the lands of a lunatic to another person for his own benefit (g). And it seems that no grant of a lunatic's estate can be made by the Chancellor otherwise than during pleasure; for, in contemplation of law, a lunatic is always capable of recovering his understanding (h). But though the King's grant of a lunatic's estate without account is void, yet the King, or the Chancellor by authority of the sign manual, may allow such a yearly maintenance to the committee, as amounts to the yearly value of the lunatic's estate (i).

No restriction being imposed upon the King by the statute de prærogativá regis, or any other statute, as to the persons in whose favour grants to committees are to be made, he may commit the custody of a lunatic and his estates to any person, or number of persons, he pleases, although the relations of the lunatic are usually preferred.

(d) 2 Dick. 553.

(e) See 3 P. Wms. 107, note (a). (f) Lysaught v. Royse, 2 Sch. & Lef. 153.

8 Rep. 170.

(h) In re Fitzgerald, 2 Sch. & Lef. 438.

(i) Sheldon v. Fortescue, 3 P.

(g) 4 Rep. 127 b; Moor, 4, pl. 12; Wms. 110.