merly had been accustomed. But for the moveable goods of the said lunatic incumbent, and his temporal possessions, the court would further consider thereof, and give such order as should appertain, &c."

In pursuance of that declaration, the Archbishop committed the administration of the spiritual revenues of the party to a clergyman, under the style of coadjutor; and afterwards, by a separate instrument, granted the custody of the lunatic to the person who had been appointed by the Court of Wards. The coadjutor, it seems, entered into a a bond for rendering a faithful account to the ordinary, or other spiritual judge to be appointed by him (p). It seems also, that if a bishop become, through age or other means, unfit to discharge his episcopal office, that a coadjutor will be appointed to assist him in the performance of the duties (q). It appears to have been decided, that the Archbishop, and not the King, was entitled to the custody of a lunatic Dean (r).

A non compos ought not to sit as a judge; it is nevertheless said, that, should such a case occur, the fines, judgments, and other records taken before him would be good; but it is otherwise of matters in fait which might be avoided by a person of nonsane memory (s).

A non compos cannot act as an attorney or solicitor; for, being unable to manage his own affairs, he will not be permitted to transact the business of others (t).

And as a non compos is incapable of distinguishing the rights of parties, or of making a proper award, he cannot be an arbitrator (v).

A non compos cannot be guardian of another person, for one who cannot govern himself, will be unable to manage another or his concerns (w).

In receiving evidence, it is necessary to take into consi

(p) Gibson's Codex, 901-902; See Watson's Cl. Law, 370; Boreman v. Dickins, 3 Keble, 437.

(g) Gibson's Codex, 157.

(r) Pace's case, 3 Dyer, 303 a. (s) Bryd. 65, 85; Brooke's Abr. 258 (a); Mirror of Justices, chap. 2,

s. 2.

(t) Britt. c. 126.

(v) Bryd. 58.

(w) Co. Litt. 88. (b). Ex parte Brydges, H. T. 1791; 2 Fonbl. Eq. 249, n.

deration the capacity of the witness for knowledge, and his opportunities of acquiring it, as well as his power to understand the nature and obligation of an oath (x). It is obvious, that the testimony of those persons who labour under diseases seated in the mind, are liable to great, and often insurmountable suspicion. However acute, in some cases, the perceptions and memory of such persons may be, the mistaken inferences which they draw, and their inability to communicate even their perceptions without this admixture, renders all attempts to extract truth from their declarations utterly unavailing. Insane persons, idiots, and lunatics under the influence of their malady, are utterly incapable of giving evidence (y). But lunatics and other persons, though subject to temporary fits of insanity, may be witnesses in their lucid intervals, if they have sufficiently recovered their understandings (x). And a person born deaf and dumb, is not on that account incompetent, but, if he has sufficient understanding, may give evidence by signs, with the assistance of an interpreter (a). A witness who has attested an instrument, and afterwards become insane, will be considered as dead during his incapacity, and proof of his hand writing to the attestation will be admissible (b).

It does not appear to be settled whether or not the examination of a pauper respecting the place of his settlement, taken when he was sane by two justices, can be given in evidence after he has become insane to prove his place of settlement. Thus, in a case where a pauper, in 1779, was taken before two justices, when his examination as to the place of his settlement was taken upon oath before such justices, and signed by him, by which it appeared that he had gained a settlement by hiring and service, but was not removed until five years afterwards, when he had become insane and continued so to the time of his removal and of hearing of the (a) Grotius de jure Belli ac Pacis, B. 2, c. 13, s. 2; Swinb. on Wills, P.

4, s. 24, 9.

507.

(a) Ruston's case, Leach Cr. L. 455. See 1 Phillips on Evidence, p.

(y) Co. Litt. 6. (b.); Com. Dig. 18; Peake on Ev. 127. Testmoigne A. (1).

(z) Com. Dig. Ibid; Bac. Abr. Ed. (A); 2 Hale, P. C. 278; Leach, Cr. L.

See

(b) Bernett v. Tayler, 9 Ves. 381.

Term Rep. 721, ante, 285.

appeal-The justices received the examination as evidence, subject to the opinion of the Court of King's Bench as to its admissibility; and the Judges of that Court were divided in opinion (c).

The depositions taken in a cause of such of the witnesses as are unable to attend from bad health, may be read on the trial of an issue at law; but, in order to save the expense of proving the bill, answer, and other proceedings, it is necessary to obtain the previous order of the Court of Chancery (d). It is a common practice of that Court, in directing the trial of an issue, to make an order that the parties shall be at liberty to read, on the trial, office copies of the depositions taken in the cause, of such of the witnesses examined therein as, upon the trial, should, to the satisfaction of the Judge, be proved to be dead (e).

In one case, where an issue was directed to try the sanity of a party who had executed deeds, it was ordered, that the parties should be at liberty to read the depositions of any or either of the witnesses examined in the cause at the trial of the issues directed, who should be proved, to the satisfaction of the Court, to be dead at the time of such trial, or in such a state of health as not to be capable of attending the trial, or who, having been of sound mind at the time of their examination in the cause, should, at the time of the trial, be in a state of mental imbecility, or be incapable of giving testimony (f). If a witness, produced before commissoners under a commission appointed by the Court of Chancery, is not of competent understanding, the adverse party may except against him, and the commissioners ought not to examine him. But if they who have the carriage of the commission insist upon the examination of him, the other commissioners must certify the matter to the

(c) Rex v. Eriswell, 3 Term Rep. 707; S. C. 2 Bott 649, pl. 727. See Rex v. Ferry-Frystone, 2 East. 54.

(d) Palmer v. Lord Aylesbury, 15 Ves. 176; Gordon v. Gordon, 1 Swanst. 170; S. C. 1 Wils. C. C. 155; Corbett v. Corbett, 1 Ves. & Bea. 335; Bellingham v. Pearson, Id. 349.

n (a). See Seton's forms of Decrees in Eq. 347.

(e) Tatham v. Wright, Reg. Lib. B. 1828, fol. 2422; Jones v. Roberts, Reg. Lib. A. 1129, pl. 2849.

(f) Murley v. Templeman, Reg. Lib. B. 1825, fol. 1310.

Court, and affidavit of the irregularity must be made (g). The ground of excluding the evidence of insane persons in Courts of justice, requires little or no illustration, for it is obvious that they are altogether unfit to communicate such information as can be relied upon, or will afford a motive to assent in any case. And much caution is required in admitting persons who are sometimes insane to give testimony in a Court of justice, even during their lucid intervals. Where, indeed, the intermission of the disease has been long and the fact concerning which the evidence is required is of recent occurrence, and no access of the disease has followed, evidence of the facts to which such a witness deposes ought to be received, more especially if other witnesses to the same point cannot be obtained. But such evidence is liable to great suspicion, and will not, perhaps, be entitled to receive full credit, except in conjunction with, and as corroborative of, other proof. With regard to those lesser degrees of mental weakness and distemper which may considerably impair the judgment, without amounting to a state of fatuity or madness, it is obvious that no precise rules can be laid down. These circumstances, so far as they are known to a Court or jury, will necessarily affect their opinion of the testimony, and diminish the credit of the witness more or less according to the circumstances of the case; but it may be held generally, that if a witness appears to be so far of a sound mind as to comprehend the nature of the oath administered to him, and gives intelligible answers to the questions which are put, it is fit that his testimony should go to the consideration of the jury, or those who are trying the facts, unless a special proof is immediately offered of his actual insanity. To attempt any thing like an enumeration of the special circumstances which may affect the credit of testimony in this, as in other general cases, is plainly impossible.

(9) Wy. Pr. Reg. 419.

APPENDIX.

PART I.

THE STATUTES OF ENGLAND, IRELAND, AND
SCOTLAND, RELATING TO LUNATICS, &c.

De Prerogativá Regis 17 Edw. 2, st. 1.-A. D. 1324.

CAP. IX.

Rex habet (habebit) custodiam terrarum fatuorum naturalium, capiendo exitus earundem sine vasto et destructione et inveniet eis necessaria sua de cujuscumque feodo terre ille fuerint; et post mortem eorum reddat eas (eam) rectis hæredibus ita quod nullatenus per eosdem fatuos alienentur vel (nec quod) eorum hæredes exheredentur.

st. 1.

THE King shall have the custody of the lands of natural 17 Edw. 2, fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden. And after the death of such idiots he shall render them to the right heirs; so that by such idiots no alienation shall be made, nor shall their heirs be disinherited (a).

CAP. X.

Item habet providere (Rex providebit) quando aliquis qui prius habuit (habuerit) memoriam et intellectum, non fuerit compos mentis suæ, sicut quidam sunt per lucida intervalla,

(a) See ante, p. 10.

K K