Oliver v. McDuffie , 28 Ga. 522 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

Was the court right in dismissing this bill upon the ground that the complainant had an ample and adequate remedy at law ?

The learned judge, in the very able able opinion which he has sent up with the record in this case, has established these propositions conclusively; than an infant may bind himself for necessaries, and that education is a necessary (McPherson on infants, 498; Rolf vs. Rolf, 15 Ga. Rep., 457) ; and that an action at law can be maintained against an infant for necessaries. In the case of Nichols and wife vs. Welborn, (13 Ga. Rep., 467,) this court said: “An infant may make a valid contract for necessaries ; and if she can contract, she can be sued on that contract.” That a suit against an infant must be brought against him in his own proper person, and he will defend by his duly appointed guardian, if he have one; otherwise by a guardian ad litem to be appointed by the court. — 2 Johns, 192. The order for the admission of the guardian to defend the suit should be before plea. If the infant fail or refuse to appear and move for a guardian, the court, at the instance of the plaintiff, will appoint one for him. Tidd Pr. 79; 7 Taunton, 488. And a similar order may be obtained by the plaintiff where the infant defendant does not appear at all.

The infant then being suable at law for his tuition, why then resort to equity? It is argued that a judgment at law could not be enforced. Why not ? It is against the infant, and the title to his property being in him and not in his guardian, why should not the lien of the judgment attach ?

As to the circumstance that the services were rendered before tbe appointment of the guardian, what difference can that make ? If it be an objection at law, it is equally so in equity. It makes no difference in either case whether the services were rendered before or after the guardian was appointed.

Judgment affirmed.