to you ;' or 'if he has any demand on me, it shall be settled,' will take a debt out of the statute. (Corp. 548 Trueman v. Fenton, per Lord Mansfield, S. P. 5, Burr. 2630. Quantock v. England.) It was also holden that a letter written by the defendant to the plaintiff, on being served with a writ, couched in ambiguous terms, neither expressly admitting nor denying the debt, should have been left to the jury to consider whether it amounted to an acknowledgment of the debt, so as to take it out of the statute. (2 Term. Rep. 760. Lloyd v. Maund. See also, Esp. N. P. 152. 3 Chris. Bl. 307. notes (8.) (9) And the acknowledgment of one out of several makers of a joint and several promissory note has been holden sufficient to take it out of the sta tute as against the others, and may be given in evidence on a separate action against any of the others. As where, in an action on a promissory note, executed by the defendant, he pleaded the statute of limitations, and issue being joined upon it, the plaintiff produced a joint and several note, executed by the defendant and three others, and proved payment, by one of the others, of interest on the note, and part of the principal, within six years; this being thought by the learned judge who tried the case sufficient to take the cause out of the statute, as against the defendant, a verdict was found for the plaintiff; and upon a motion for a new trial, the opinion of the learned judge was confirmed by the court of king's bench, who said that payment by one is payment by all; the one acting virtually as agent for the rest, so an admission by one is an admission by all, and the law raises the promise to pay when the debt is admitted to be due; and they seemed to overrule the case of Bland v. Haselrig. 2 Vent. 151, Doug. 652. comb v Whiting. Whit LOTTERIES. 'NO person, in order to raise money for himself or another, shall publicly or privately put up a lottery of blanks and prizes, to be drawn or adventured for, or any prize or thing to be raffled or played for; and whoever shall offend herein, shall forfeit the whole sum of money proposed to be raised by such lottery, raffling, or playing, to the use of the Commonwealth.' 1 Rev. Code, p. 176, sect. 12. LUNATICS. I. Of lunatics, or non compos mentis, by the common law. II. How they shall be restrained and kept, by stutute. I. OF LUNATICS, OR NON COMPOS MENTIS, BY THE COMMON LAW. 1. NON compos mentis is of four kinds. First, Ideots, who are of non sane memory from their nativity, by a perpetual infirmity. Secondly, Those that lose their memory and understanding by the visitation of God, as by sickness, or other accident. Thirdly, Lunatics who have sometimes their understanding and sometimes not. Fourthly, Drunkards, who, by their own vicious act, for a time deprive themselves of their memory and understanding. 1 Inst. 247. 2. He who incites a madman to commit murder, or other crime, is a principal offender, and as much punishable as if he had done it himself. Hawk. 2. 3. But ideots, and lunatics who are under a natural disability of distinguishing between good and evil, are not punishable by any criminal prosecution. Ibid. Yet drunkards shall have no privilege by their want of sound mind, but shall have the same judgment as if they were in their right senses. 1 Inst. 247. H. H. 32. 1. Hawk. 2. 4. But if a person who wants discretion commits a trespass against the person or possession of another, he shall be compelled, in a civil action, to give satisfaction for the damage. 1 Hawk. 2. 5. If one who hath committed a capital offence become non compos before conviction, he shall not be arraigned; and if after conviction, he shall not be executed. Hale's Pl. 10. 1 Hawk. 2. 6. By the common law, if it be doubtful whether a criminal, who, at his trial, is in appearance a lunatic, be such in truth or not, it shall be tried by an inquest of office, to be returned by the sheriff; and if it be found by them that the party only feigns himself mad, and he still refuse to answer, he shall be dealt with as one that stands mute! Hawk. 2. It may be tried either by the inspection of the court (1 Hale 31. Tr. per pais 14. Fitz. N. B. 517) or by evidence given to the 1 Hale jury, who are charged to try the indictment (3 Bac. Abr. 81. $3, 35, 36. Savil. 30. 1 And. 107) or, being a collateral issue, the fact may be pleaded and replied to ore tenus, and a venire awarded, re turnable instanter, in the nature of an inquest of office. (Fost. 46. Kely 13. 1 Lev 61. 1 Sid. 72. 4 Bl. Com. App. sect. 3.) And this method in cases of importance, doubt, or difficulty, the court will, in prudence and discretion, adopt. 1 Hale 35. Sav. 56. 1 And. 154. 7. Any person may justify confining and beating his friend, being mad, in such manner as is proper in such circumstances. 1 Hawk. 130. 8. A person of non sane memory shall not avoid his own act by reason of this defect, but his heir or executor may. 4 Co. Beverley's case. 9. If an ideot takes a wife, they are husband and wife in law, and their issue legitimate, for he is allowed to be capable of consenting to marriage. Kel. 112. 10. To make a will it is not sufficient that the testator have memory to answer to familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his estate, with understanding and reason. 6 Co. 32. A person of non sane memory shall not avoid his own act, by reason of this defect; but his heir or executor may. (4 Co. Beverley's case.) For the general learning on the doctrine of lunacy, see Fonb. Eq. B. 1. c. 2. and notes. II. HOW THEY SHALL BE RESTRAINED AND KEPT, BY STATUTE. All the laws on this subject may be found in the Rev. Code, vol. 1, ch. 120, p. 233. ch. 294, p. 424, and vol. 2, ch. 92, p, 118, which are two lengthy for insertion. (A) Warrant for the examination of a person supposed to be of unsound mind, on sect. 3. county, to wit. Whereas I have received due information that A L is a person of insane or disordered mind, and is going at large in this county, to the great danger of the citizens of the commonwealth. You are, therefore, hereby required to bring the said A L before me, or some other justice of the peace for the commonwealth, and two other justices of this county, on the day of in this county, to be examined concerning his state of mind, and the causes of his insanity, according to the act of Assembly in that case made. Herein fail not; and then and there make due return of this warrant. Given, &c. next, at (B) If found to be of insane mind. Pursuant to the within warrant, we have diligently examined, as well the said A L, as C D, E F, and G H, witnesses to the conduct and behaviour of him the said A L, whereupon it appears expedient to us, that the said A L should be removed to the public hospital for the maintenance and cure of persons of unsound mind, in the city of Williamsburg. We have, therefore, taken the depositions of the said witnesses, in order to be transmitted, with said lunatic, to the keeper of the said hospital according to law. (C) Warrant for removal. county, to wit. J. K. L. M. N.O. JK, L M, and N O, three of the justices of the peace of the county of to the sheriff of the said county, and to the keeper of the public hospital in the city of Williamsburg, for the maintenance and cure of persons of unsound mind. Whereas, upon due examination before us. A L, of this county, hath been adjudged a person of insane or disordered mind, and we have thought it expedient that he should be removed to the public hospital for the maintenance and cure of persons of unsound mind, in the city of Williamsburg. You are, therefore, hereby authorised and required forthwith to remove the said A L to the said hospital in the city of Williamsburg, and deliver him, together with the warrant and order, the depositions of the witnesses, a certificate of the said A L's estate, and the probable annual profits thereof, and this precept, to the keeper of the said hospital, and for so doing this shall be your warrant. And you the said keeper are hereby required to receive the said A L into your custody, and him there safely to keep, till he shall be discharged by due course of law; and the several papers herewith sent to deliver to the directors of the said hospital. Given, &c. If the justices think a guard necessary, then after forthwith insert, 'to impress a guard of one man (or two men) to assist you,' &c. With this warrant must be sent a certificate of the lunatic's estate, and the annual profits. If friends offer security, then in the order at the end add,' but P Q, of the said county, appearing before us, and giving sufficient security that proper care shall be taken of the said A L, and that he shall be secured and restrained from going at large till he is restored to his senses, we have delivered the said A L to the said P Q. (D) Recognizance to be taken. Be it remembered, that on the day of in the year before J K, L M, and N O, three of the justices of the peace of the county of personally appeared P Q, R S, and T W, of the said county, and severally acknowledged themselves indebted to A G, governor or chief magistrate of this commonwealth, and his successors, in the sum of each, to be levied of their several and respective lands and tenements, goods and chattels, and to the use of the said commonwealth rendered. Upon this condition, that whereas A L hath, upon examination be fore the justices aforesaid, been adjudged to be of insane or disordered mind, and it was thought expedient that he should be removed to the public hospital for the maintenance and cure of persons of unsound mind, in the city of Williamsburg; but at the request of the said PQ, hath been delivered to him; if therefore the said P Q, shall take proper care of the said A L, and cause him to be kept secure, and restrained from going at large, until he be restored to his senses, then the above recognizance to be void, or else to remain in full force. Taken and acknowledged before us, J. K. L. M. N.Q. (E) Certificate of removal, and of the lunatic's estate, to be made to the next court of the county after removal. county, to wit. We, JK, L M, and N O, three of the justices of the peace for the county aforesaid, having, upon due examination before us had of AL, of this county, been of opinion that he was a person of unsound mind, and that it was expedient he should be removed to the public hospital for the maintenance and cure of persons of unsound mind, in the city of Williamsburg, and having accordingly directed him to be so removed by our order, bearing date the past; we do therefore hereby certify the same to the court of this county, together with the annexed certificate of the estate of the said A L, which is all that has yet come to our knowledge. Given, &c. J. K. day of lass L. M. N.O. To the above warrant should be annexed an inventory of all the insane's estate, both real and personal. (F) Certificate to the officer and guard, conveying a lunatic to the hospital, and who was not received, on ch. 92, sect. 1, of 2 Rev. Code, p. 118. county, to wit. Whereas A L, of day of was, by our warrant, bearing date the &c. sent to the hospital at Williamsburg, for the reception of persons of unsound minds, and was conducted thither by B S, sheriff of the county of and C G and DG, acting as a guard; but the said A L not being received by the court of directors of the said hospital, for want of room (or, if for any other cause, express it) was brought back by the said BS, CG, and DG, to this county, and produced to us there.* These are therefore to certify, that the distance from the place whence the said A L was sent, to the said hospital, is miles, and that in going and returning with him, the officer and guard necessarily crossed the ferries of &c. (describing them all.) Given under our hands, &c. Over J. K. L. M. N. O. |