which Writing was prout, &c. Then they find, that the said Simon Leach the Brother non fuit compos mentis suæ tempore confectionis, sigillationis & deliberationis scripti illius, &c. That afterwards, viz. 10 Nov. 25 Car. 2. the said Simon the Brother had Issue of his Body, on the Body of the said Anne his Wife, Charles Leach; that the said Simon died, and Charles Leach the Lessor of the Plaintiff is eldest Son and Heir of the said Simon, &c. Et si videbitur Cur' quod, &c. Upon this Verdict there was Judgment for the Plaintiff.
[151] Argument for the Plaintiff in Error. 3 Lev. 284. 1 Show. 296. Void and Voidable.—And now it was argued, That the said Judgment was Erroneous; and said that in the Case there were two Queries. 1. If this were a good Surrender, there being no Acceptance or Agreement by Sir Simon before the Birth of the first Son Charles: But this was not insisted on before, and therefore waived here, the same having been adjudged by the Lords to be a good Surrender, even to an Infant without Acceptance, in another Action between the same Parties, which you may see reported in 2 Ventris 198, 208. Then it was argued on the second Query, That the Lessor of the Plaintiff in the Ejectment, being a Remainder-Man in Tail, cannot take any Advantage of his Father's Lunacy. That in this Case he could claim no Title as Heir at Law to his Father or Uncle, because of the intermediate Remainder to the Defendant in Tail; so that quoad this Estate, he is as a mere Stranger, and not as Heir: And tho' he were able to avoid it by Writ, or the like, yet it being once good, the particular Estate of Simon the Father of Charles was determined, before the Contingent Remainder to the first Son could take Place: And consequently it can never after revive. Then the Question is, Whether this Surrender by a Non compos, being an Act done by himself, and not by Attorney, be void or only voidable: There's no express Case that a Surrender, by one who is Non compos, to him in Remainder, is void. Perhaps 'twill be said, as it hath been, That the Acts of a Madman are mere Nullities by all the Laws in the World. But to this 'tis an Answer, That the Laws of England have made good and honest Provisions for them, so as to avoid their Acts for the Benefit of the Party, of the King and of the Heir. But it was repeated, that this was a Contingent Remainder, and if it could not vest when the particular Estate did determine, whether by Death or Surrender, it never could vest at all; for a future Right to defeat the Surrender, as Heir, cannot support such a Contingency. A present Right of Entry would; but if no such present Right, the Remainder is gone for ever; and here was no such in Charles. If Tenant for Life make a Feoffment with Condition of Reentry, the Contingent Remainder shall never arise again, tho' the Condition be broken, and a Re- entry were made. So is the Case of Purefoy versus Rogers, 2 Saund. 380. Wigg versus Villers, 2 Roll's Abridg. 796. and then Charles cannot avoid this Deed; for the Avoiding of a Deed is to take somewhat out of the Way, in order to the Revesting of somewhat: But here was nothing to work upon; for if the Surrender were good for a Moment, the particular Estate for Life was once gone, and consequently for ever; and this must hold, unless the Act were totally void.
Reason why Non compos shall not stultify himself.—Then 'twas argued, That during the Life of the Party, 'twas only voidable for the King by Office; no Man can stultify himself; and so is the great Resolution in Beverly's Case, 4 Rep. and 1 Inst. 247. and Whittingham's Case, 8 Rep. and if it be not void as to himself, it cannot be void as to others. And tho' Fitzh. in his N.B. says that he himself may have a dum non fuit compos, that is not agreeable to the received Law; for Beverly's Case was never [152] shaken till now; and Fitzh. supposes it only voidable, by saying that Writ doth lie. There is also a Reason for this Rule of Law, that a Man shall not disable himself by Pretence of Distraction; because if the Pretence were true, he had no Memory, and consequently could not know or remember that he did such an Act: And therefore 'tis, as it were, impossible for him to be able to say that he was so distracted when he did it: 'Tis for him to say what 'tis not possible for him to know. But they would compare this to the Case of an Infant; yet even there all his Acts are not void: His Bond is only avoidable; he cannot plead that 'tis not his Deed. 'Tis true, that Acts apparently to his Prejudice cannot be good, as 1 Cro. 502. Suppose a Non compos Signs, Seals and Delivers such a Deed, and after recovers his Senses, and agrees to it, would not this be a good Surrender from the first? Perkins sect. 23. 1 Inst. 2. and if it can be
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