the time, he was so weak in mind as to be incapable of understanding it, if explained to him, although he might not fall within the strict legal definition of an idiot.

In an action of ejectment, the title of the lessor of the plaintiff was, under a remainder in tail, limited by a deed, dated the 10th July, 1762. The title of the defendant depended upon a fine levied, and a recovery suffered, by one John Shenton Ball, (who held the first estate tail under the deed of 1762), and a deed, executed by him in October, 1785, leading the uses of the fine and recovery, in which recovery he was vouched and appeared by attorney. The sole question between the parties was, whether the deed of 1785 was, or was not, valid at law, as the deed of J. S. Ball. Witnesses on the part of the plaintiff deposed that he, at the time of his executing such deed, was not, in their opinion, competent to execute the same; and further deposed to his acts and conduct as evidencing his mental incapacity. Witnesses for the defendant swore, that, in their opinion, J. S. Ball, at the time of the execution of the deed, was competent to execute it, and further deposed to his acts and conduct evidencing his mental capacity; and that he was certainly not an idiot. It was admitted by both parties, that the alleged incapacity of J. S. Ball did not arise from lunacy, no evidence of his lunacy having ever been given. The learned Judge, in charging the jury, told them, "that the question for them to try was, whether J. S. Ball was a person of sound mind or not; and that, to constitute such unsoundness of mind as would avoid a deed at law, the person executing such deed must be incapable of understanding and acting in the ordinary affairs of life; that it was not necessary that he should be without a glimmering of reason, but that it was sufficient if he was incapable of understanding his own ordinary concerns; that, as one test of such incapacity, the jury were at liberty to consider, whether he was capable of understanding what he did, by executing the deed in question, when its general import was explained to him. "On the part of the defendant, a bill of exceptions was taken to this charge, the defendant's counsel insisting, that, in order to avoid the said deed at law, the

unsoundness of the mind of J. S. Ball must amount to that degree of unsoundness which constituted idiocy, according to the strict legal definition of an idiot. Upon the argument of the bill of exceptions, it was held, that the charge of the Judge was right, and that a man, by putting his seal to an instrument, does not make it his deed, if, at the time, he was so weak in mind as to be incapable of understanding it, if explained to him, although he might not fall within the strict legal definition of an idiot (a).

It was observed by Chief Justice Bushe, in the case last cited-"There does not seem to be in principle any foundation for the assertion, that the perpetual infirmity of mind which constitutes idiocy is the only incompetence by which a deed can be avoided at law, in a case in which neither lunacy, or drunkenness, or a sudden visitation of God, are alleged as the causes of incompetence. On the contrary, the proceedings in Chancery furnish an analogy, which points to a different conclusion; and when the law as to lucid intervals is considered, and when we recollect that a plea of non est factum is supported by shewing that the party was blind (b) or illiterate, and that the deed was misread to him (c), or that he was so drunk as not to know what he did, the principle would rather seem to be, that incapacity at the time to understand the act is the criterion of unsoundness of mind upon such a plea, and not the perpetual infirmity of mind described in the strict legal definition of an idiot (d)." A writ of error was brought in the last case to the Court of Exchequer Chamber in Ireland, and the twelve Judges were equally divided on the bill of exceptions; and, on appeal to the House of Lords, the judgment of the Court below was affirmed (e).

In one case, where a deed contained false recitals and erasures, and it appeared by evidence in the cause, that,

(a) Mannin d. Ball v. Ball, 1 Smith & Batty, 183.

(b) 2 Rep. 3; 12 Rep. 89.

(c) 2 Rep. 9; 1 And. 129; Kelw. Rep. 70 b; 1 Sid. 312. See Skinner, 159, pl. 6; 2 Atk. 327; Com. Dig.

tit. "Fait" (B. 2).

(d) 1 Smith & Batty, 198.

(e) Ball v. Mannin, 1 Dow's P. C. New Ser. p. 380; S. C. 3 Bligh, New Ser. 1; 1 Smith & Batty, 454.

before the date of such deed, the grantor was of a weak constitution, and subject to a malady which clouded his intellectual faculties, and that he was a man of very improvident habits, the Court of Chancery in Ireland would not act on the deed, without first sending it to a jury (ƒ).

The acts of lunatics during their lucid intervals bind them (g). Deeds executed by lunatics during their lucid intervals are valid; but it will be incumbent upon the party claiming under such deeds, to prove that they were executed during a lucid interval (h). A deed executed by a party, whilst under confinement in a lunatic asylum, has been held good. Lord Chancellor Eldon mentioned the case of a gentleman, who, being confined in a lunatic asylum, had a lucid interval, and made a disposition of his property by deed, which was exactly that which he ought to have made, having regard to the circumstance that he had before provided for some, and not for other members of his family; and that which he, before his insanity, communicated to a friend, he intended to make; and he did it under a sense of his situation, and the impression that no time was to be lost, and to protect himself against a relapse. The deed executed under such circumstances was held good (i).

The Court of Chancery generally directs an issue to try whether a particular deed or contract was executed during a lucid interval, when that is the point in issue (k).

It has been already shewn (7), that an inquisition of lunacy is not conclusive as to third parties claiming under instruments previously executed by the lunatic, and the King, before the inquisition, cannot avoid the alienation of an idiot or lunatic; but afterwards a scire facias may be sued out at the suit of the Crown against the person in possession,

(f) Burke v. O'Malley, 1 Beat

ty, 96.

(i) 5 Dow, P. C. 236. (k) Attorney-General v. Parn(g) 4 Rep. 25 a. See post, Chap. ther, 3 Br. C. C. 441; Hall v. Warvii. s. 5. ren, 9 Ves. 605; Clerk v. Richards and Another, 2 Vern. 412.

(h) Attorney-General v. Parnther, 3 Bro. C. C. 441; ante, p. 223. See 1 Preston, Abst. p. 331.

(1) See ante, Chap. iii. s. 15.

or the alienee, of a lunatic's estate (m), which writ may be traversed (n). The King, however, can only recover the profits from the time of the office found (o); but conveyances by an idiot or lunatic, by matter of record, cannot be avoided by the King (p).

It does not appear to have been the practice for a considerable time to issue a scire facias at the suit of the Crown, for the purpose of trying the validity of deeds executed by idiots or lunatics.

The Lord Chancellor sitting in lunacy has sometimes directed an issue, to try the validity of deeds, which had been executed by the lunatic prior to the issuing of the commission of lunacy, but subsequently to the time at which the jury had found the lunacy to have commenced.

It appeared, by the petition of persons claiming under certain deeds, that a man, in June, 1826, before he had been found a lunatic, entered into three bonds for securing the payment of money to the petitioners, and by indentures of lease and release, dated the 9th and 10th June, 1826, conveyed freehold property, for the purpose of securing the payment of the money due on such bonds. That, two years after the execution of such securities, a commission of lunacy was issued against the party, under which he was found to have been of unsound mind, from the 5th March, 1826. The petitioners stated, that the finding of the inquisition was erroneous, in so far as it declared, that the lunatic had been of unsound mind from the 5th March, 1826, and that they believed that they could establish the validity of the said securities beyond all doubt, if allowed the opportunity of doing so. The petition prayed that an issue might be directed to inquire of the state of mind of the lunatic, on the 12th day of June, 1826, when the deeds and bonds were executed; or, that the petitioners might be at

liberty to traverse the inquisition. The Lord Chancellor ordered that issues should be tried in the Court of King's Bench in the city of London, before a special jury of the city, to inquire whether the lunatic was a person of unsound mind, so that he was not sufficient for the government of himself, his manors, &c. at the time when he executed the indentures of the 9th and 10th June, 1826, and the bonds; and if he was not at that time a person of unsound mind as aforesaid, whether the said indentures or bonds were invalid; and it was ordered, that the petitioners should be plaintiffs in the said issues, and the committee of the estate of the lunatic defendant; and the consideration of further directions and costs was reserved until the return of such issues (q).

There is an instance, however, of a Court of equity having decided on the insanity of a party, upon the testimony of witnesses, without a trial at law. Thus, in a case, where an assignment of a lease had been obtained by undue influence, and for an inadequate consideration, from a person who was afterwards found a lunatic by inquisition, the Court of Chancery in Ireland set aside the transaction, on the ground of the insanity of the party, without a trial at law; and this decree was affirmed on appeal to the House of Lords (r).

It is laid down by Lord Coke, that if an idiot or lunatic make a feoffment in fee, it cannot be avoided by the party's pleading that he was an idiot or a lunatic when the feoffment was executed. But, upon office found for the King, the King shall avoid the feoffment for the benefit of the non compos; for, although the parties themselves cannot be received to disable themselves, yet a jury, upon their oaths, may find the truth of the matter (s).

It is said, however, in Fitzherbert (t), that the writ of dum fuit non compos mentis lies for him who has aliened

(q) In re Humpleby, 1st June,

1829.

Shepp. Touchst. 289.

(t) Fitz. N. B. 504, 2 vol. p. 202, (r) Evans v. Blood, 3 Bro. P. C. ed. 1794. See Booth on Real Ac632; Toml. ed.

tions, p. 189.

(s) Co. Litt. 247. a. ; 4 Rep. 127 a;