Ex parte Northington , 37 Ala. 496 ( 1861 )

STONE, J.

That all adult person, .who is of unsound mind, can become liable by implied contract, for necessaries suitable to his estate and condition in life, is a proposition upheld alike, by reason and authority. — Chitty on Con. 131-2 5 Baxter v. Earl of Portsmouth; & Barn. & Cr. 170; Brown v. Jodrell, 3 C. & P. 30; Chit. Med. Ju. 350; Hallett v. Oakes, 1 Cush. (Mass.) 296 ; Tally v. Tally, 2 Dev. & Batt. 385; Richardson v. Strong, 13 ired. 106. And, at least where no guardián has been appointed for such adult non compos, the suit must, in the nature of things, be prosecuted against him whose estate must pay any judgment that may be recovered. — Kernot v. Norman, 2 T. R. 390; Nutt v. Verney, 4 T. R. 120; Chit. Con. 131-2; Brown on Actions, 301; Clarke v. Dunham, 4 Denio, 262; Walker v. Clay, 21 Ala. 797.

[2.],. When suit is brought against a personj-not'án idiot, but who is of non-sane mind, the rule seems.to be universal, that he must, if an infant, be defended by guardian ; and if an adult, he must be defended byjm attorney, to be-appointed for the purpose by the- court,'if necessary. There is no authority-for the appointment of a .guardian ad litem, to defend in such a case as this ; and the court should not proceed with the trial, without having the defendant represented by an -attorney. — Beverly’s case, 4th Rep. 124; 1 Chitty’s Pl. 427-8 ; Shelf. on Lunacy, 512 ; Cameron v. Pottinger, 3 Bibb, 11 ; Faulkner v. McClure, 18 Johns. 134; Robertson v. Lain, 19 Wend. 649; 1 Tidd’s Pr. 92-3.

The circuit court did not err in refusing to appoint a guardian ad litem for the defendant, nor in refusing to allow the plaintiff to proceed with the proof in his cause, in the absence of counsel for the defendant. But, in refusing to allow the plaintiff to proceed, “unlesshe would first have a guardian appointed! by the probate court, and notify such guardian of the pendency of the suit,” the circuit court erred. The defendant was an adult; and it was the right of the plaintiff to proceed, after having an attorney appointed for the defendant.

A rule is ordered to the judge presiding in the circuit court of Autauga county, to show cause why a mandamus shall not issue, to. compel the appointment of an attorney for the defendant.