Medical Jurisprudence, Volume 1 (of 3)Paris, John Ayrton
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Medical Jurisprudence, Volume 1 (of 3)
Paris, John Ayrton
Medical laws and legislation -- Great Britain
The manner of pleading a traverse is very short, (5 _Ves._ 452). An
idiot must traverse in person. _Smithson’s_ case was on motion to be
permitted to traverse by attorney, which was opposed; it was agreed that
a traverse was given by 2 _Ed._ 6, but it must be _in propriâ personâ_:
precedents were shown, but there was no case where an idiot had
traversed by attorney, though many where a lunatic had: 3 _Atk._ 7. Vide
_Stone’s_ case in _Tremaine’s Pleas of the Crown_, 653, a precedent of a
traverse, and for the doctrine of traversing an inquisition, vide 4
_Co._ 54. _b_; (the case of the Commonalty of the Sadlers), and 8 _Co._
168. _Xaris Storeghtors’_ case. Sir _T. Jones_, 198. _Show._ 199.
_Skinner_, 45. _Moseley_, 71. 1 _Collinson_, 171. But though a lunatic
may by permission of the Lord Chancellor traverse by attorney, the
better rule is that he attend in person. _Amb._ 112.
The appeal in lunacy is to the King in Council, and not to the House of
Lords. _Ex parte Pitt_, 3 _P. Wms._ 108: _Rochfort and Ely_, 6. _Bro.
Par. Ca._ 329; _Sheldon v. Aland_, 3 _P. Wms._ 107.
If the party be found lunatic the next consideration is as to the
disposal of his person and estate. “To prevent sinister practices, the
next heir is seldom permitted to be this committee of the person;
because it is his interest that the party should die. But it hath been
said there lies not the same objection against his next of kin, provided
he be not his heir; for it is his interest to preserve the lunatic’s
life, in order to increase the personal estate by savings, which he or
his family may hereafter be entitled to enjoy. The heir is generally
made the manager or committee of the estate, it being clearly his
interest by good management to keep it in condition; accountable however
to the Court of Chancery, and to the _Non compos_ himself if he
recovers; or otherwise to his administrators, 1 _Bl. Comm._ 305. But
this rule is not in all cases adhered to, _Ex parte Cockayne_, 7 _Ves._
591: _Neal’s case_, 2 _P. Wms._ 544, and _ex parte Ludlow_, _ibid._
635.” The Court will not give the custody of a lunatic to one who may
make a gain of it, Lady _Cope’s_ case, _Cha. Ca._ 239, or allow the
committee any thing for his trouble, whether as to the person (_In re
Annesley. Amb._ 78) or as to the estate, 10 _Ves._ 103.
A stranger may have the custody of a lunatic, _Ch. Ca._ 239. And where
no one could be procured to act as committee of a lunatic, a receiver
was appointed with a salary, but nevertheless to be considered and give
security as a committee. _Ex parte Warren_, 10 _Ves._ 622.
A committee may be removed on sufficient cause, as bankruptcy, but the
Court will not change the custody, if the Master finds it proper with
regard to the comfort of the lunatic. _Ex parte Mildmay_, 3 _Ves._ 2.
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