Summons of declarator or escheat of a felo de se found to need no continuation, especially where trial had been taken of the fact upon the dead body by an inquest.
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Thomas Dobie messenger, burgess of Edinburgh, having drowned him self in the Quarry-holes, the gift of his escheat was disponed to Symon Graham, who mad James Johnston assignee thereto. It was alleged by Mr J. Sharpe, for the bairns of the said umquhile Thomas, That this declarator must abide continuation, because the hail summons may not be verified instanter; but ane part thereof being in facto, viz. the fact anent the defunct's slaying of himself, must bide probation, and so must bide continuation. It was answered, That the fact was notour, and needed no probation; and that the Provost and Bailies of Edinburgh had tried, by assize led against the dead corps, that he had drowned himself. The Lords found process. Secondly, it was alleged peremptorily, That no declarator could be granted in this case, because of the law, that that whilk is committed by ane man being actually furious, can noways be punished; and true it was, that this man was furious at the time of destroying of himself, and committed infinite acts of folly and fury all his life, and specialy twenty days immediately preceding his decease. It was answered, The laws alleged bearing impunity to ane man committing any crime of slaughter, parricide, spuilzie, or sick like, against another, meet nothing in the cause; because the crime was committed against himself; whereof no mention was made in any of the said letters. Secondly, Nemo mentis compos manus sibi infert; and, therefore, either the King man tyne this part of the privilege of his crown, or else fury man be na excuse in defence of the crime committed, quia nemo sanus id perpetrat. Lastly, The alleged fury cannot come in trial in this cause, because there was no brieve of idiotry or fury served against this man before his decease; and, by the practice of this realm, fury cannot be proved by witnesses after ane man's decease; and of the canon law, qui sibi mortem; and his goods are escheat, and Christian burial is refused to himself. In respect of the whilk answers, the Lords repelled the allegeance, and granted declarator general. Rege præsente.
