4 Johns. Ch. 441 | New York Court of Chancery | 1820
The sole question in this case is, whether the bill shall be dismissed with or without costs. The plaintiff claims no relief after the inquisition which has been returned.
Upon the finding of the jury under the commission, in nature of a writ de lunático inquirendo, I refused to appoint a committee, and adjudged that the defendant was not to be deemed an idiot from the mere circumstance of being born deaf and dumb. This is a clear settled rule, and numerous instances have occurred in which such afflicted persons have demonstrably shown, that they were intelligent, and capable of intellectual and moral cultivation.
In Elliot's case, (Carter's Rep. 53.) Bridgman, Ch. J. and the other judges of the C. B. admitted a woman bom deaf and dumb, to levy a fine, after due examination of her. He mentioned, also, the case of one Hill, who was bom deaf and dumb, and who was examined by Judge Warburton, and found intelligent, and admitted to levy a fine. So Lord Hardwicke, in Dickenson v. Blisset, (Dick. Rep. 268.) admitted a person born deaf and dumb, upon being examined by him after she came of age, to take possession of her real estate.
Notwithstanding these authorities, the bill does not appear to have been filed vexatiously, but rather to obtain, for greater caution, the opinion of the Court on a point which had been left quite doubtful in many of the books, and which, had never received any discussion here. It is stated, in Bracton, (De Exceptionibus, lib. 5. ch. 20.) to be a good exception taken by the tenant: Si persona petentis fuerit surdus et mutus natural-iter, hoc est, nativitate ; for it is said, acquirere non potest, et per officium judiéis invmienda sunt et necessaria quoad vixerit; and he takes it for granted, that such a person is placed under a curator, and that he must sue
I am satisfied that the plaintiff is justly to be exempted from the charge of a groundless and vexatious inquiry, and the course is not to punish the prosecutor of a charge of
Decree accordingly.
The author of Fleta, (lib. 6. c. 40.) supposes a person born deaf or dumb, to be incapable of enfeoffing, &c.: “ Competit etiam exceptio tenenti propter defectum natura petentis, vel si naturaliter a nativitate surdus fuerit aut mutus, tales enim adquirere non poterunt, nee alienare, quia non consentiré, quod non est de tarde mutis vel surdis, quibus dandi sunt curatores et tutores, &.c. But Coke (Co Lilt 42. b.) sáys, a man deafe, dumb, or blind, so that he hath understanding and sound memory; albeit, he expresse his intention by signs, may infeoffe,” fee., though a man deaf, dumb and blind, from his nativity, cannot.