NIcholas Leach , Great Uncle to Sir Simon , being seised in Fee of 500 l. a Year in York-shire and Devonshire , in 1643 , devised the same to Nicholas Leach his Eldest Son , and the Heirs Males of his Body ; And for default of such Issue , the Remainder to Simon Leach , another of his Sons , and the Heirs Males of his Body ; and for default of such Issue , the Remainder to Simon Leach his Nephew , and his Heirs for ever , ( who was Father to Sir Simon . )

Nicholas Leach 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 Leach 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 Ann Croke , who afterwards left her Husband , and lived publickly many Years with Sir George Pudsey in Oxfordshire .

This being known to all the Relations and the Country , her Father , Mr. Croke , being much troubled at it , and the Discourse being , that Mrs. Leach 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 Croke ( who could not in Conscience oppose it ) by the Advice of Mr. Serjeant Ellis , and Mr. Serjeant 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 , Lett 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 , Ann the Wife of Simon , was brought to Bed of Charles Leach , 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 duely Seal'd by him to the Use of Sir Simon , but in his Absence . And they found that Charles Leach 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 Judgment 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 Devise 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 Joynture , 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 reverst that Judgment , 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 makeing 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 Ideot , that could Write and Read ? 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 void , 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 void , 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 Deed Seal'd and Delivered by an Ideot or non Compos , can be avoided by either of them during their Lives ; And tho' my Lord Coke 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 void , 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 void . 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 Deed executed by an Infant , or by the non Compos himself in Person , is good against himself , and not void .

But that every Deed that is executed by or under a Letter of Attorney from them , is void ; 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 Deed or Assureance , 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 void . 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 Deed which he made , when he was non Compos , it shall bind his Heirs for ever .

And it is a Rule in Law , that a Deed cannot be void , 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 Leach , 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 Tryal , 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 Councel of that Age , by Simon , with the Assent of Mr. Croke , 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 Judgment , and once more to Order , that this Surrender shall not be drawn in question again , which 't is hoped may quiet this Estate , according to the plain Intention of the Ancestors of the Plaintiff and Defendant .