3 Atk. 711. is presumed they are of sufficient age: and the infant cannot, therefore, in that court, aver his disability. But if, upon a writ of error brought in a superior court, he is inspected, and found not to be of full age, the fine may be reversed: because the public inspection of an infant by the Judges, in a court of record, is of equal notoriety and authenticity with a former record of the infant's having levied a fine, which supposes him to be of full age; and therefore, as both facts are recorded, and contradict one another, the latter fact will prevail. 12 Rep. 122. 380 b. Keckwith's case, Moo. 41. If the fact of infancy were permitted to be tried by any other mode than the personal inspection of the infant in a court of record, averments might be made many years after a fine had been levied, that the person who acknowledged it was an infant at the time: by which means, records might be avoided by bare averments, which would be productive of the greatest confusion. 1 Inst. 131 a. 42. If the person of an infant be inspected by the Judges, and it is once recorded that he is within age; although the infant should attain his full age, or die before the fine is reversed; yet he, or his heirs, may reverse it at any time afterwards. 844. Griffith's case, 12Mod. 444. 43. An infant acknowledged a fine, and the cognizee omitted to get it engrossed, until the infant should attain his full age, in order to prevent him from bringing a writ of error. The Court, upon view of the cognizance produced by the infant, and upon his prayer to be inspected, and to have his nonage recorded, inspected him, and recorded his infancy, in order to give him the benefit of his writ of error; which he must otherwise have lost, as his non-age determined before the next term. The principles here laid down respecting fines levied by infants, are confirmed by the following Parrot's case, 2 Vent. 30. 1 Mod. 246. son's case, 3 Lev. 36. Wars Herbert Hutchin Sherlock's case, Sty. 457. Cousin's case, 1 Vent. 69. Requishe v. Requishe, Infant 44. By the statute 7 Anne, c. 19. it is enacted, Exception. that it shall and may be lawful to and for any per- Trustees. son, under the age of twenty-one years, by the direction of the Court of Chancery or Exchequer, on the petition of the persons for whom such infants shall be seised or possessed in trust, to convey and assure any such lands, tenements, or hereditaments 3 Atk. 164. in such manner as the said Court shall direct. Mair. 3 Atk. 479. Com. Rep. 45. Upon a petition in Chancery, praying that an Exparte infant, the heir of a mortgagee in fee, who was likewise a feme covert, might convey by fine, under this statute, the master reporting it necessary, 615. Lord Hardwicke said, this question came before him soon after he had the seals, and that he consulted with Lord Ch. B. Comyns; who thought the Court might order an infant, who was a feme covert, to levy a fine; for the act was general, that all persons under age should convey and assure; and that as a Vide 3 P. feme covert of full age could not assure but by fine, the Court might direct an infant to convey in the Lombe, Barnes, 217. same manner; and an order was made accordingly. 46. By the statute 4 Geo. III. c. 16. it is enacted, that it shall and may be lawful for any infants, having estates in lands, tenements, or hereditaments, within the duchy of Lancaster, or the counties palatine of Chester, Lancaster, and Durham, or in the principality of Wales, by the direction of the Court Wms. 387. Lombe v. Idiots and of the Duchy Chamber of Lancaster, of the Court of Exchequer in the county palatine of Chester, or of the Court of Chancery of the county palatine of Lancaster, or the Court of Chancery of the county palatine of Durham, and of the several courts of the great sessions in Wales respectively, to convey and assure any such lands, tenements, or hereditaments, in such manner as the said several courts shall direct. of 47. Idiots, lunatics, and generally all persons non-sane memory, are incapable of levying fines; and the statute de modo levandi fines expressly di rects, that persons of this description shall not be permitted to levy a fine. But still, if the Judges or Commissioners allow them to levy a fine, it can never afterwards be reversed by an averment that the 4 Rep. 124. cognizors laboured under any of those disabilities: because the record and judgment of the court, being Tit. 32. c. 12. the highest evidence in the law, the cognizors must be presumed to have been capable of contracting at the time; therefore, no averment can be admitted to the contrary. A declaration of the uses of a fine, by an idiot or lunatic, will also be good at law. $37. 12 Rep. 124. 48. One Henry Bushley, a monstrous and deformed cripple, and idiot, was taken from his guardian, and carried to a place unknown, where he was kept in secret, until he had acknowledged a fine of his lands before Justice Southcot, to one Bothome, and had declared the use of the fine to Bothome and his heirs. an Henry Bushley was afterwards found by inquisi tion to have been an idiot, a nativitate, and upon action brought by a person who claimed under Bothome, the idiot was sent out of the Court of Wards upon a man's shoulders, to be shown to the Judges of the Court of Common Peas. Lord Chief Justice Dyer said, that the Judge who took the fine was not worthy to take another: but notwithstanding this, and although the monstrous deformity and idiotcy of Bushley was apparent and visible, yet the fine stood good. It was moved as a doubt in the Court of Wards, whether this fine should not enure to the use of the idiot and his heirs; for although it was agreed, that the fine, being of record, bound the idiot, yet it was contended, that the deed executed by the idiot was not sufficient to direct the uses of the fine; but it was resolved, "That forasmuch as he was enabled by the fine as to the principal, he should not be disabled to limit the uses, which are but as accessary.” 2 Rep. 58 a. Hob. 224. Vide infra. Hugh Lew 49. One Hugh Lewing, who was an idiot, and so found by office, levied a fine, and declared the uses ing's Case, 10 Rep. 42. of it by indenture. It was resolved in the Court of Winch, 106. Wards by the Lords Chief Justices Wray and Dyer, that both the fine and declaration of uses should stand good, as neither Hugh Lewing nor his heirs could aver that he was an idiot: and it was said by the Court, that they would sooner suppose the office found to have been erroneous, than bring a judicial act into question, or the judgement of the court in which the fine was levied. Barnes, 218 50. A complaint was made to the Court of Com. Lister v. mon Pleas by Thomas Cust, supported by many affi- Lister, davits, setting forth, that Johanna Lister, one of the cognizors in a fine lately levied, had for some years past been disordered in her senses, and was so at the time when the said fine was levied. The Court thereupon made a rule to show cause why the fine should Corporations not be vacated; and for John Hancock, one of the commissioners (who, with two others, took the fine by dedimus potestatem), to answer the matters in the affidavits. Upon an enlargement of the rule, the court recommended it to them to produce the said Johanna Lister, who resided in Yorkshire, and accordingly she was brought into court and being examined by the Lord Chief Justice, appeared to be a person of good capacity, and very well to understand the intent of a fine, and the deed declaring the uses thereof, which was in favour of her husband, with whom she had lived many years, and upon whom she was desirous to settle her estate, and pre: vent its decending to the said Thomas Cust, her nephew and heir at law. The Court discharged the rule, with costs of the application, and the expences of the said Johanna's Journey to Westminster, to be paid by Cust. 51. Corporations aggregate cannot levy fines; because, being invisible bodies, they can only appear Co. Read, 7. by attorney: whereas the statute de modo levandi fines requires that the parties to a fine shall appear personally before the Judges. But Lord Coke says, that a sole corporation may acknowledge a fine. Who may Touch. 7. 52. With respect to the persons who are capable take by Fine. of being cognizees, and of taking any estate by fine, it will be sufficient to observe, that all those who are enabled by the common law to take by way of grant, may also take an estate by fine; such as infants, married women, corporations sole or aggregate; for an estate may be taken in a fine by attorney; or any other person, except those who are considered in law as civilly dead. 53. The King may take lands by fine, because it matter of record: and therefore, where the |