It is the general rule, that idiots and lunatics being by reason of their natural disabilities incapable of judging between , good and evil, are punishable by no eri minal prosecution whatsoever. And therefore a person who loses his memory by sickness, infirmity, or accident, and kills himself, is no felo de se And as a person non compos cannot be a felo de se by killing himself, so neither can he be guilty of homicide in killing another, nor of pe tit treason. If one committed for a capital offence become non compos before convic tion, he shall not be arraigned ; and if af ter conviction, he shall not be executed.
There is a distinction between acts done by idiots and lunatics in pais, and in a court of record ; that as to those solemnly acknowleged in a court of re cord, as fines and recoveries, and the uses declared on them, they are good, and can neitherhe avoided by themselves, nor their representatives, for it is to be presumed, that had they been under these disabilities, the judges would not have admitted them to make those ac knowledgments. Therefore, if a person non compos acknowledge a fine, it shall stand against him and his heirs. And to acts done by them in pais, they are disc tinguished into void and voidable, though as to themselves they are regularly una voidable, because no man is allowed to disable himself, for the insecurity that may arise in contracts from counterfeited madness and folly ; besides, if the excuse were real, it would be repugnant that the party should know or remember what he did:. but their heirs and executors may
avoid such acts in pais, by pleading the disability ; becaus,., if they can prove it, it must be presumed real, since nobody can be thought to counterfeit it, when he can expect no benefit from it himself.
There are frequent instances in equity, where not only idiots and lunatics, who come within the protection of the law, but also persons of weak understandings, have been relieved, when they appeared to have been imposed upon in their deal ings, and unreasonable purchases and se curities obtained from them set aside in their favour. Idiots and lunatics, during their lunacy, are incapable of making any will or testament, as are also persons grown childish by reason of extreme old age. So one actually drunk, if he be so drunk as to have lost the use of his rea. son : but though a person who wants un derstanding cannot make a will, yet the rule herein is not to be taken from his not being ab'e to measure an ell of cloth, tell twenty, or the like, but whether he have sense enough to dispose of his estate with understanding.
When an idiot sues, or defends, he shalt not appear by guardian,proclzein amy, or attorney, but he must be ever in pro per person : but otherwise of him who be comes non compos mends ; for he shall ap pear by guardian, if within age, or by at torney, if of full age.