The CASE OF Sir SIMON leech, Who is Plaintiff in a Writ of Error, brought before the Right honourable the Lords in Parliament  
NIcholas leech, Great Uncle to Sir Simon, being seized in Fee of 500 l. a Year in York-shire and Devonshire, in 1643, devised the same to Nicholas leech his Eldest Son, and the Heirs Males of his Body; And for default of such Issue, the Remainder to Simon leech, another of his Sons, and the Heirs Males of his Body; and for default of such Issue, the Remainder to Simon leech his Nephew, and his Heirs for ever,( who was Father to Sir Simon.)  
Nicholas leech the Devisor died, and Nicholas his Son surviving, and being Indebted, destroyed that Estate Tail; And in 1667, devised them, first for Payment of his Debts, and the the Remainder to the Heirs Males of his Body; and for default of such Issue, to Simon leech his Brother for Life; and after his Decease, to the First, second, and other Sons of the Body of the said Simon; and for default of such Issue, to Sir Simon the Plaintiff.  
Simon, after the Death of his Brother Nicholas, Married and croak, who afterwards left her Husband, and lived publicly many Years with Sir George Pudsey in Oxfordshire.  
This being known to all the Relations and the Country, her Father, Mr. croak, being much troubled at it, and the Discourse being, that Mrs. leech was with Child at Sir George Pudsey's, which was some Years after she lived from her Husband. Simon her Husband, by the Consent of her Father croak( who could not in Conscience oppose it) by the Advice of Mr. sergeant Ellis, and Mr. sergeant Maynard, made the Surrender in Question of his Estate for Life, to Sir Simon the Plaintiff, then an Infant, who was the next Remainder Man in Tail, on purpose to destroy the contingent Remainder to the First, second, and other Sons of hers, and preserve the Estate in the true and rightful Heirs of the Family.  
That Simon, both before, and after this Surrender for several Years, let Leases of his Estate, after the Manner of the West, upon small Rents and Fines, which are all enjoyed to this day under them.  
About 3 or 4 Months after the making of this Surrender, and the Wife of Simon, was brought to Bed of Charles leech, the Defendant, who after the Death of Simon, brought an Ejectment, under the Title, by the Will of Nicholas, as the first Son of Simon.  
☞ In which there was a special Verdict, whereby the said Simon was found to be Compos Mentis, and the Surrender in question, was found to be duly sealed by him to the Use of Sir Simon, but in his Absence. And they found that Charles leech the Defendant, was Born during the Elopement; and that Simon the Surrenderer continued in Possession five Years after the Surrender; and that then Sir Simon, published his Agreement to it, and Acceptance of it( he being then but just of Age) but judgement was given against Sir Simon, because it did not appear, that he agreed to the Surrender, when it was made to him by Simon.  
But because it did not appear he ever disagreed to it, and being to his Advantage, must be presumed to agree to it, unless the contrary appeared; and because he did publish his Agreement to it, as soon as he came of Age; and because Sir Simon had paid several Years Value to Simon, for the Surrender of his Estate for Life in these Lands in Devon, and had paid 1000 l. more as he appointed, and had only the Lands in Devon, which was not half the Estate, and Granted, and Released his Title to the York-shire Lands, which for default of Issue of Simon, would have also come to Sir Simon, without the said Surrender by the device aforesaid. So that Simon became a real Purchaser of the same, and for a full Value; and having Married the late Lord Treasurer Clifford's Daughter, settled all the Lands in question on her for her jointure, and laid out above 2000 l. in Building thereon, and granted several Leases thereof; For these Reasons, and upon hearing many Learned Arguments upon the Point of Law, this Honourable House reversed that judgement, and ordered the Surrender should not be brought in question any more.  
But the Defendant Charles not acquiescing, brought another Ejectment, and there it was indeed found Specially, That Simon was non Compos at the making the Sarrender; but the Jary being equally divided, differed so much in it, that they sat up all night, and the next Morning asked the Judge, who took the Verdict, Whether a Man could be an idiot, that could writ and red? And he answered, yes; they then found him non Compos, but yet allowed, that the Leases which he made to the Tenants at the same time he Sealed the Surrender, were good.  
And upon that Verdict, the only Question was, Whether the Surrender was wholly voided, or only voidable; for if it were only voidable, then it was agreed Sir Simon had the Right, it being made before the Birth of Charles the Defendant; and so the contingent Remainder to the first Son, was destroyed: The Freehold of Simon, which should have supported it till it came in Esse, being merged by his Surrender of it to Sir Simon in his Estate Tail; But if it were wholly voided, it was then pretended they had the Right.  
And tho' all the Judges in the Great and Solemn Resolution in Beverley's Case in my Lord Coke's 4th Report 124, did agree, That no dead sealed and Delivered by an idiot or non Compos, can be avoided by either of them during their Lives; And tho' my Lord cook in that Case cites many Authorities and Judgments out of the Books of Law agreeing with it; so that it was thought the Law had been settled in that Point, That this Surrender was not wholly voided, but only voidable; and so the contingent Remainder, to the first Son was destroyed, according to the Opinion and Design of those great Lawyers, Ellis and Maynard, who advised it. Yet, Sir Simon had the Misfortune to have the Judges of the Kings-Bench of another Opinion, who gave their Judgments, That the Surrender to him was wholly voided. Against whose Opinions in Point of Law.  
That Great Lawyer Littleton. in 18 E ●4. 2. when he was a Judge, and all the Court then, and the Learned Judges in E. 3. Hen. 6. and Qu. Elizabeths Time; and Perkins, Sect. 139, gives another Reason for it, which makes the Surrender( contrary to the said Opinions) a good Conveyance to Sir Simon.  
For they hold, that every Conveyance or dead executed by an Infant, or by the non Compos himself in Person, is good against himself, and not voided.  
But that every dead that is executed by or under a Letter of Attorney from them, is voided; and that they themselves may Sue or Punish any one that acts under it, as if he had done it without any Warrant or Authority.  
And the Reason they give, is, That he being an Infant or non Compos, it were a Contradiction to say he can have any Will in him, Faculty or Power to give an Authority.  
But the Inheritance of his Lands, and the Property of his Goods is in him; and therefore no Contradiction, that he himself by any dead or assurance, may pass them during his Life, as any other Man may( or else if he were never so rich) he might starve, if all he could do, were wholly voided. Indeed his Heirs may avoid it, and so he cannot injure his Posterity; but Charles does not, nor can claim these Lands as Heir to him.  
But the Books agree too, That if the non Compos recovers his Senses, and then Confirms the dead which he made, when he was non Compos, it shall bind his Heirs for ever.  
And it is a Rule in Law, that a dead cannot be voided, which may be Confirmed, or made good afterwards; and there are multitudes of Opinions and Judgments, that agree in this Difference, That Gifts, Grants, Releases, Bonds Sealed, and Delivered by them themselves are good, and makes the Surrender in this Case to Sir Simon( being Sealed and Delivered by himself in Person) good.  
And it is plain, that this new Matter pretended to, by the said Charles leech, in endeavouring to destroy the Surrender, is a Notion much of the same Nature with the last, only prosecuted under a new Name; for that upon the former trial, when the Validity of the Surrender was in Issue, the Jury found the said Simon, Compos: But as to the Point of Law of Sir Simon's Acceptance of the Surrender, the Jury found that Specially.  
And in regard that this Surrender was made upon great Deliberation, and Advice of the greatest council of that Age, by Simon, with the Assent of Mr. croak, the Grandfather of Charles the Defendant, who was Advising and Consenting to the Surrender, in respect of the Elopement and ill Behaviour of his Daughter; and also in regard it was made upon a full and valuable Consideration, paid for it too by Sir Simon; and that it is conceived there are many Authorities and Resolutions in the Law for him.  
Therefore, he humbly hopes Your Lordships will think it most just to Reverse this judgement, and once more to Order, that this Surrender shall not be drawn in question again, which 'tis hoped may quiet this Estate, according to the plain Intention of the Ancestors of the Plaintiff and Defendant.   

THE CASE OF Sir SIMON leech.