Reduction ex capite furoris may proceed after the granter's recovery, upon a proof of the madness at the time of granting the deed sought to be reduced, though no inquisition of the furiosity had been taken by an assize.
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In a reduction of a disposition of a liferent made by this woman Alexander to the defender, upon this reason, because the woman the time of the making thereof, was then furious and distracted of her mind and wit, and was done without an onerous cause; the circumstances of her fury being qualified in the summons, and offered to be proved by the ministers of Dundee and doctors of medicine and apothecaries, and other honest burgesses of that town where the woman then remained; this reason so to be proved was found relevant, and sustained at the woman's own instance, who was now convalesced and recovered of that madness; albeit the defender alleged, That there ought to have preceded a precognition and declarator of her fury, by the determination of an assize, after trial taken, and that it ought to have been so first found by an assize before this reduction could be sustained, being of a dangerous preparative, to reduce lawful deeds upon allegeance of fury, and to be proved by witnesses, which may offer occasion to others to move the like actions, and to prove the same after that manner; which allegeance was repelled. For the Lords found, that the party recovering, albeit no friend should seek protection of the person of the furious, nor of her goods the time that she was diseased, yet it were not just to deny that remedy to herself, which her nearest agnate or friend might have gotten of the law, if they had sought the same, and their omission could not prejudge her therein.
