Brower v. Fisher

New York Court of Chancery

Brower v. Fisher

4 Johns. Ch. 441, 1820 N.Y. LEXIS 151, 1820 N.Y. Misc. LEXIS 42

CourtNew York Court of Chancery

DecidedJune 23, 1820

StatusPublished

Cited by3 cases

This text of 4 Johns. Ch. 441 (Brower v. Fisher) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brower v. Fisher, 4 Johns. Ch. 441, 1820 N.Y. LEXIS 151, 1820 N.Y. Misc. LEXIS 42 (N.Y. 1820).

Pincite

Opinion

The Chancellor.

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 [444]*444in assise, sicut minor. So, it is said, in Brooke, (Eschete, pi. 4.) that videtur qui surdus et mutus ne poet faire alienation ; and the distinction taken was, (Dy. 56. a. note 13.) that if deaf and dumb from his birth, he was non compos, but not if so by casualty.

(a) By the civil law, it was also generally understood and laid down, that a person born deaf and dumb was incapable of making a will, and he was deemed a fit subject for a curator, or guardian. (Inst. 1, 23, 24; and Ferniere, h. t. and Inst. 2. 12. 3. and Ferrier and Finnius, h. t.) Perhaps, after all, the presumption, in the first instance, is, that every such person is incompetent. It is a reasonable presumption, in order to insure protection, and prevent fraud, and is founded on the notorious fact, that the want of hearing and speech exceedingly cramps the powers, and limits the range of the mind. The failure of the organs requisite for general intercourse and communion with mankind, oppresses the understanding; affigat humo divince pariiculam aurce. A special examination, to repel the inference of mental imbeci lity, seems always to have been required; and this presumption was all that was intended by the civil law, according to the construction of the Ecclesiastical Courts ¿ for a person born deaf and dumb was allowed to make a will, if it appeared, upon sufficient proof, that he had the .requisite understanding and desire. (Swinb. part 2. s. 10.)

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 [445]*445lunacy with costs, if the prosecution has been conducted in good faith, and upon probable grounds. (1 Collinson on Lunacy, 461. 464.) I shall, therefore, dismiss the bill without costs.

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.

Free access — add to your briefcase to read the full text and ask questions with AI

The Chancellor.

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 [444]*444in assise, sicut minor. So, it is said, in Brooke, (Eschete, pi. 4.) that videtur qui surdus et mutus ne poet faire alienation ; and the distinction taken was, (Dy. 56. a. note 13.) that if deaf and dumb from his birth, he was non compos, but not if so by casualty.

(a) By the civil law, it was also generally understood and laid down, that a person born deaf and dumb was incapable of making a will, and he was deemed a fit subject for a curator, or guardian. (Inst. 1, 23, 24; and Ferniere, h. t. and Inst. 2. 12. 3. and Ferrier and Finnius, h. t.) Perhaps, after all, the presumption, in the first instance, is, that every such person is incompetent. It is a reasonable presumption, in order to insure protection, and prevent fraud, and is founded on the notorious fact, that the want of hearing and speech exceedingly cramps the powers, and limits the range of the mind. The failure of the organs requisite for general intercourse and communion with mankind, oppresses the understanding; affigat humo divince pariiculam aurce. A special examination, to repel the inference of mental imbeci lity, seems always to have been required; and this presumption was all that was intended by the civil law, according to the construction of the Ecclesiastical Courts ¿ for a person born deaf and dumb was allowed to make a will, if it appeared, upon sufficient proof, that he had the .requisite understanding and desire. (Swinb. part 2. s. 10.)

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 [445]*445lunacy with costs, if the prosecution has been conducted in good faith, and upon probable grounds. (1 Collinson on Lunacy, 461. 464.) I shall, therefore, dismiss the bill without costs.

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.

Cite This Page — Counsel Stack

Bluebook (online)

4 Johns. Ch. 441, 1820 N.Y. LEXIS 151, 1820 N.Y. Misc. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brower-v-fisher-nychanct-1820.

Opinion

Related

Cite This Page — Counsel Stack