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CHAP. IV.

PERSONS AS INDIVIDUALS.

[1 Black. Com. ch. 1; 1 Steph. Com. B. 1, p. 125–140.]

The objects of the laws of England being the preservation of men's persons and properties from civil injuries and criminal violence, a natural division is formed into the four following subjects; namely 1st, persons; 2nd, property; 3rd, civil injuries; and 4thly, crimes and misdemeanours.

Persons are to be considered in their natural, and in their relative or civil capacities. A person in his civil capacity is every man or woman; in which the law takes notice of life, sex, age, health, liberty, and reputation.

Life.]-Life begins when an infant stirreth in the womb. The birth is usually at the end of nine solar months after conception, reckoning thirty days to the month therefore, if a child be born within nine months, or rather, within forty weeks after the death of the husband of its mother, it is held to be legitimate; but there is no exact time fixed by law beyond which if the child be born the law determines it to be illegitimate, but it shall be found by

a jury on proper evidence (a). An infant en ventre de sa mere may be supposed to be born to many purposes. A surrender to such an infant is good; so is a devise, or a guardianship, under the statute 12 Car. 2, c. 24; and by 10 & 11 Will. 3, c. 16, posthumous children are enabled to take estates, as if born in their father's life-time, though there be no estate limited to trustees after the decease of the father, to preserve contingent remainders, the necessity of which, indeed, has lately been taken away in other cases. So a bill in equity may be filed on behalf of such an infant, and an injunction to restrain waste being committed on its property will be granted (b).

Sex.]-Sex is male or female; for an hermaphrodite, which is both male and female, shall be accounted in law as of that sex which most prevails. The word man includes both man and woman; and a virgin is included under the denomination of

woman.

Age.]-The age of male or female is twenty-one years; and it is not material at what hour of the day the birth takes place, for the law does not admit any fraction of a day. An infant attains his full age on the completion of the day which precedes the twenty-first anniversary, but still he may do any act which he is entitled to do at full age during any part of such day, for, as before stated, the law makes no fraction of a day for such a purpose (c).

A man hath divers ages to several purposes. At twelve he ought to take the oath of allegiance; at fourteen, he may consent to marriage, choose his guardian, is supposed to be at years of discretion, and if so, in fact, might formerly have made a will

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of his personal estate; and at twenty-one may alien his lands, goods, and chattels.

A woman had formerly seven ages to several purposes, but now that law is altered. At nine years of age she may have dowry; at twelve she may consent to marriage; at fourteen she is supposed to be at years of discretion, may choose a guardian; and at twenty-one may alienate her land.

Infants.]-Before the age of twenty-one a man or woman is called an infant or minor; and before such age, any deed or other writing made by them may be avoided; in matters of fait, either within age or at full age; but if they be matters of record, they must be avoided during minority; as to conveyances by infants, there is this distinction, that some are void, whilst others are merely voidable. This was an ancient doctrine, and was fully settled in the famous case of Zouch v. Parsons (3 Burrows, 1794), where Lord Mansfield laid it down that where a deed which takes effect by delivery, is executed by an infant, it is voidable only, and not void. This decision has been strongly disapproved of by Mr. Preston and others, but it is clearly good law, and has very recently been acted on as such (d). An infant may contract for, and even bind himself by single bond, to pay for necessaries, as meat, drink, physic, apparel, instruction for himself, wife, children, and family; but if he enter into a bond with a penalty for the payment of any of these necessaries, the bond shall not bind him and if he borrows money to buy, or pay a debt for necessaries, and applies it accordingly, he is not liable at law, because he might have wasted it; but he is liable in equity, and the lender of the money stands in the place of the creditor for

necessaries; or if, after coming of age, he devise lands in trust for the payment of his debts, a debt for necessaries, though contracted during his minority, is within the trust (e).

An infant defendant is liable to costs at law, but not an infant plaintiff: for any one may commence a suit in his name as next friend, or, as it is called in the law French, prochein ami (f). An infant is bound by all conditions, charges, and penalties in an original conveyance, whether he comes to the estate by grant or descent. The law gives an infant capacity to purchase, or contract, without consent of any other, for it is intended for his benefit, and the vendee is absolutely bound by this contract; but the infant at his full age may either agree to or perfect it, or, without any cause alleged, waive or disagree to the same; and so may his heirs after him, if he has not confirmed it (g). This must be confined to a perfect purchase; for an infant cannot compel, by a suit in equity, the specific performance of a contract for the purchase of real property, because in such a case the remedy ought to be mutual, and it is not in the case of an infant, as the courts cannot compel him to perform the contract on his part, either by paying the money or executing a conveyance (h).

Health.]-Under this head are included those injuries to which both the body and the mind are liable. Injuries to the body may be committed by selling bad provisions or wine, or by exercising a noisome trade, which infects the air, or by the neglect or unskilful management of a physician, surgeon, or apothecary (i). Health, with respect to the mind, includes the consideration of 1st, idiotcy; 2nd, madness; 3rd, lunacy: 4th, intoxication.

IDIOTS AND LUNATICS.

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Idiots and lunatics.]-An idiot is a natural fool, or one of unsound mind and memory from his nativity; for if he hath any spark of reason, the law in its humanity will hope that time may restore him to his perfect understanding, and therefore will not account him an idiot or natural fool; but if he hath no signs of sanity, the custody of him and his lands are given to the King by the 17 Edw. 2, c. 9, the statute de Prærogativa Regis, as the general conservator of his people, in order to prevent the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress. But whether a man is an idiot or not must be tried by a jury of twelve men. A man is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters; but a man who is born deaf, dumb, and blind, is looked upon by the law as in the same state with an idiot; he is to be supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas. Idiots, and all persons of nonsane memory, are totally disabled either to convey or purchase, except sub modo only, for their conveyances and purchases are voidable, though not actually void (j). A madman is he who loses his understanding by grief, sickness, or other accident. A lunatic, or non compos mentis, is properly one who has lucid intervals, sometimes enjoying his senses and sometimes not; and that frequently, as some imagine, depending upon the changes of the moon. But under the general name of non compos mentis are comprised not only lunatics but madmen, or persons under frenzies, or who lose their intellects by disease, those that grow deaf, dumb, and blind, not being born so, or such, in short, as are adjudged by the Court of Chancery incapable of conducting their own affairs. To these also, as

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