OF THE ALIENATION OF THE ESTATES OF LUNATICS. 213 contract by the law of England, which, in this respect, is conformable to the civil law. "Furiosus nullum negotium

gerere potest, quia non intelligit quod agit" (b).

On account however of the importance which Courts of justice attach to their own records, some matters of record, which idiots and lunatics have been allowed, however improperly, to execute, are considered binding, because the Courts will not permit the records of their own proceedings to be called in question.

Idiots, lunatics, and generally all persons of nonsane memory, are incapable of levying fines, and the statute de modo levandi fines, (18 Edw. 1, st. 4), requires the parties to a fine to be of full age, of whole memory, and out of prison; and another statute (15 Edw. 2,) expressly directs that, before fines are passed, the cognisors shall appear personally before the Judges or commissioners, in order that the age, idiocy, or other default of such parties, may be judged and discerned by them. But still, if the Judges or commissioners allow them to levy a fine, it can never afterwards be reversed by an 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; therefore, no averment can be admitted to the contrary. If an idiot or lunatic is permitted to levy a fine, or suffer a recovery, he may declare the uses of it (c). The caption of a fine is conclusive evidence of the capacity of the party, not because the law permits a person who wants understanding to do any act, but, because having empowered a person after a previous examination to take the fine, it gives sufficient credit to his certificate, and permits it to be recorded; and the caption of the fine, when recorded, becomes, by fiction of law, conclusive evidence of the legal capacity of the cognisor to support the fine itself, but not for any other purpose (d).

An idiot was taken from his guardian, and carried to a

(b) Inst. Lib. 3, tit. 20, s. 8. (c) 10 Co. 42 b; Hob. 224; Winch. 106. (d) 1 Ridg. P. C. 106, 276.

place unknown, where he was kept until he had acknowledged a fine of his lands, before a Judge, to another person, and declared the use of the fine to him and his heirs. The cognisor was afterwards found by inquisition to have been an idiot a nativitate, and, upon an action by a person who claimed under the fine, the Judges, upon inspection of the idiot, said, that the Judge who took the fine was not worthy to take another: but, notwithstanding, and although the monstrous deformity and idiocy of the party was apparent, yet the fine stood good (e).

The declaration of the uses of a fine levied by an idiot was held good, on the ground that it was merely accessary to the fine; and a fine and declaration of uses, after an idiot had been so found by inquisition, was held good, as both the idiot and his heirs were estopped from saying that he was so; for the Court would rather judge the inquisition void, than allow the judicial act and judgment of the Court which accepted the fine to be called in question (ƒ).

Where a rule had been granted by the Court of Common Pleas, on a complaint of the heir-at-law, to shew cause why a fine should not be vacated, on the ground that one of the cognisors was a lunatic at the time when it was levied, and the party upon examination by the Court appeared to be a person of good capacity, and able to understand very well the intent of the fine, and the deed declaring the uses, the Court discharged the rule with the costs of the application (g).

Where one of several deforciants had become insane, the Court ordered the fine to pass as to all the other parties, notwithstanding the omission of the name of the lunatic in the proceedings (h).

Where the estate of a married woman had been regularly sold with the consent of the husband, when of perfectly sound mind, and the conveyance was executed by him, and

(e) Mansfield's case, 12 Rep. 124. (f) Hugh Lewing's case, 10 Rep. 42; Winch. 106; 2 And. 193; Piggot on Recoveries, p. 72.

(g) Lister v. Lister, Barnes, 218.

(h) James, plaintiff, and Fletcher and Others, deforciants, 2 Moore & Payne, 265, n. (a).

the purchase-money paid, and some difficulty was subsequently made in allowing a fine to pass, on account of the cognisor being a feme covert, and her husband at that time in a state of mental incapacity, the Court on application refused to make any order on the subject; but intimated that there was no objection to the acknowledgment of the fine being taken; adding, valeat quantum valere potest (i). A person found non compos upon inquisition, but alleged to have become of sound mind, was ordered by the Court of Chancery, if he made a settlement, to do so by fine, that a Judge might examine him (k).

The rule of Court, which requires an affidavit of one of the commissioners, before whom a fine is acknowledged, that the parties are of age and competent understanding, has afforded some protection against the frauds formerly practised in obtaining fines from persons under mental disabilities ().

The statute of non-claim on fines, 4 & 5 Hen. 7, c. 24, enacts, that the proclamations thereby directed to be made, shall conclude as well privies as strangers to the same, except women covert, (other than parties to the said fine); and every person then being within age of twenty-one years, in prison, or out of this realm, or not of whole mind at the time of the said fine levied, not parties to such fine. If the persons, at the time any right or title accrued or descended to them, be not of whole mind, then it is ordained that their action, right, or title be reserved and

(i) Stead v. Izard, 1 Bos. & Pull. New Rep. 312. See Compton v. Collinson, 1 H. Bl. 334, and Moreau's case, 2 Sir W. Bl. 1205.

By the bill now (May, 1832,) before Parliament, for abolishing fines and recoveries, it is proposed to give to the Court of Common Pleas power to dispense with the concurrence of the husband being a lunatic, whether found so by inquisition or not, and incapable of executing a deed, in order to enable his wife alone to do certain acts for passing her inter

ests in land and other property.

(k) Eliot's case, Carter, 53. See Ex parte Wright, 1 Vern. 154.

(1) Hilary Term, 17 Geo. 2; and Hil. Term, 26 & 27 Geo. 2. See Wils. Rep. 85, 89; Cruise's Dig. tit. 35, c. 4, s. 46–48.

In an old case, the commissioners were fined for taking a fine of an infant, to whom a guardian was assigned by the Court, with instructions to bring a writ of error to reverse it. Petty's case, Freem. Rep. 78. See Dyer, 221 a, 246 b, pl. 68.

saved to them and their heirs, unto the time they come and be of whole mind, so that they or their heirs take their said actions, or their lawful entry, according to their right and title, within five years next after that they be of whole mind, and the same actions pursue, or other lawful entry take, according to the law and it is ordained, by the same statute, that all such persons as be under the aforesaid disabilities, or not of whole mind at the time of the said fines levied and engrossed, and by that act before excepted, having any right or title, or cause of action, to any of the said lands and other hereditaments, that they or their heirs inheritable to the same, take their said actions or lawful entry, according to their right and title, within five years next after they be of full age of twenty-one years, and of whole mind, and the same actions sue, or their lawful entry take and pursue, according to the law.

Though the issue of a tenant-in-tail, who has levied a fine, be non compos mentis, yet, being privy, he is barred, not coming within any of the savings in the statute (m). But, a fine levied by the uncle of an idiot, of lands to which the latter was entitled in fee, was held not to bar the descendant of the uncle claiming as heir of the idiot, for his title as such heir was made through the uncle, who levied the fine, by way of pedigree only (n).

If a man of unsound mind makes a feoffment in fee, and the feoffee levies a fine, the heir of the feoffor has five years from the death of the latter, as the person on whom the right first descended after the fine had been levied (o).

If there are several disabilities existing in the same person at one and the same time, or there are several disabilities arising at different periods, and one of them succeeds the other without any interval, the fine will not run while any one of these disabilities continues (p).

(m) 3 Rep. 91 a.

(n) Edwards v. Rogers, Cro. Car. 524; S. C. Sir W. Jones, 456; 1 Vent. 418.

(0) Plowd. 374; Shep. Pract.

Couns. 57, 76; Shepp. Touchst. 33.

(p) Stowel v. Lord Zouch, Plowd. 375; Dyer, 133; Shepp. Touchst.

32.

On the words of the statute of fines, and on the uniform construction of all the statutes of limitation, it has been decided, that if every disability of the party be once removed, the time must continue to run, notwithstanding any subsequent disability (q). And in a case where a fine was set up in order to bar the plaintiff's title, and it appeared in evidence that the person under whom the lessors of the plaintiff claimed, and to bar whom the fine was set up, was of sane mind when the fine was levied, but that he became insane about two years afterwards; it was held, that the time continued to run against him whilst he was in that state (r). But it seems that a party, who becomes disabled before the last proclamation of a fine, is within the saving of the act (s). In Dillon v. Lemon (t), it was held by the Court, that the exception in the first branch of the 4 Hen. 7, and the proviso at the end of it, were to be taken together; that being so taken, they did not amount so much to an exception as a saving; the true meaning of which was, that the rights of those persons who were under disabilities, and of their heirs, were saved, as long as the disabilities continued, and five years after, but no longer; and that an heir not being himself disabled, was barred, unless he pursued his right within the five years after it accrued by the death of his ancestor dying under a disability.

Any person who has capacity to take by grant, may be a conusee in a fine; and fines levied to idiots or lunatics are valid (v).

Idiots and lunatics are disabled from suffering recoveries, as well as from levying fines; though, if an idiot or lunatic suffer a common recovery in person, no averment can afterwards be made that he was an idiot or lunatic, for the same reason, that such averment is not admissible against

(q) Doe d. Duroure v. Jones, 4 Term Rep. 300; 4 Taunt. 829. See post, Chap. ix.

(r) Doe d. Griggs and Another v. Shane, 4 Term Rep. 306, note. See Shepp. Touchst. 30.

(8) Stowel v. Lord Zouch, Plowd. 375; Shepp. Touchst. 31. (t) 2 Hen. Blackst. 584.

(v) Shepp. Touchst. p. 7; Vin. Abr. tit. Fine (D. 9).