can take, and who can alien, and that a Madman cannot alien; and Fitzh. is of Opinion, that the Writ of dum non fuit compos may be brought by himself. That there was a Notion scattered in the Books, That such Acts are only voidable; but the Reason of the Law is otherwise. 39 H. 6. 42. hath the Distinction; that Feoffment with Livery is good, but if Livery be by Warrant of Attorney, 'tis void. If be a Feoffment with Warranty by Deed, and Possession delivered with his own Hands, yet the Warranty is void, because the Deed is void. Perk. 5. The Deed of a Madman is void. If he grants a Rent, 'tis void. If an Infant makes a Warrant of Attorney, 'tis void; so is Whittingham's Case. A Deed and a Will are not to be distinguished; and by the same Reason that the one is void, the other is so. Finch 102. is gene-[154]-ral; all Deeds of a Man of non sane memorie are null: 12 Rep. Shulter' Case, 'Tis an Offence to procure a Deed from him. The Civil Law makes all his Acts, which he doth without Consent of his Curator, to be void. A Madman is taken pro absente. 'Tis a Rule unaccountable, That a Man shall not stultify himself; that he shall not be able to excuse himself by the Visitation of Heaven, when he may plead Duress from Men, to avoid his own Act. Tis absurd to say, That a Deed procured from a Man in a Fever, or in Bethlehem, shall be valid to any Purpose. Fitzherbert, who was a good Lawyer, ridicules the Pretence, and maintains, That he himself may avoid such Act. Then were cited 2 Inst. 14. Lloyd and Gregory, 1 Cro. 501, 502. Perkins, tit. Grant, 13. Then it was said, That in this Case there needs not much Argument, the Reason of the Thing exposes the pretended Law. And the Judges have declared that this Surrender is void; the Word amens or demens imply that the Man hath no Mind, and consequently could make no Conveyance. Wherefore it was prayed that the Judgment should be affirmed; and without much Debate it was accordingly affirmed.
Henry Earl of Lincoln, by Susanna Countess of Lincoln his Mother and Procheine Amye,—Appellant; v. Samuel Roll, Esq., Vere Booth, Hugh Fortescue, Esq., and Bridget his Wife & al',—Respondents [1696].
[16 Lds. Jo. 78.]
Will revoked by subsequent Deed of the Testator, altering his Estate. For the Difference see 1 Vern. 87, 141, 182, 329, 342. 1 Salk. 158. 1 Rol. Abr. 616. Cro. Jac. 49. 2 Vern. 495, 720.—Appeal from a Decree of Dismission in Chancery: The Case was thus; Edward late Earl of Lincoln, who was Son and Heir of Edward Lord Clinton, the only Son of Theophilus Earl of Lincoln deceased, being seised in Fee of the Manors of, &c. after his Mother's Decease (who is yet living) and of other Lands of about 3000l. per Annum, Part of the ancient Estate of the Family; and designing that, in Default of Issue Male by himself, his Estate should go with the Honour, made his Will the 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life, Remainder to his first and other Sons in Tail Male, with many Remainders over to such Persons in Tail Male, to whom the Honour might descend; and directed that his Houshold Goods at ——— should remain there as Heir-Looms, to be enjoyed by the next Heir Male, who should be Earl of Lincoln, and made the said Sir Francis, the Appellant's Father, and after his Death, Earl of Lincoln, Executor. On the 6th of Nov. 36 Car. 2. Earl Edward made another Will in Writing in like Manner, with the Alteration of some Personal Legacies; and afterwards in April 1686. and in Dec. 1690. did republish his Will. Then Earl Ed-[155]-ward sold Part to Richard Wynne, Esq; for 24491l. 3s. 6d. and mortgaged the Premisses in Question to him for 12200l. Then Earl Edward by Deed of Lease and Release, dated the 27th and 28th of April 1691. conveys his whole Estate to the Respondents Davenport and Townsend, and their Heirs, to the Use of him and his Heirs, till his then intended Marriage should take effect: And after such Marriage had, then as to Part, in Trust for his intended Wife and her Heirs and Assigns for ever: And as to the rest, in Trust to permit the said Earl to receive the Profits during his
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