
    Ex Parte NORTHINGTON.
    {APPLICATION 3?OR MANDAMUS TO CIRCUIT COURT. 1
    
      '.1.Liability of 'hmatio for necessaries. — An -adult person, -who is non corfir <pos mentis, is liable on an implied, contract for necessaries furnished him, suitable to his estate and condition in life; and where no guardian has been appointed for him, an action for the value of such ñecos» saries must necessarily be prosecuted against Mm ¡personally.
    tR. Moio-lunaiic must defend. — When an action is brought-against an .adult .person who is non eontpos mentis, he must be defended by an attorney, to be a-ppointed by the court, if necessary; and if the'court refuses to 'lot the x>laiutiff proceed with his action, “ unless -he first have a guar'dian appointed by the probate court, and notify the guardian of the ¡pendency of the suit,” a mandamus will be awarded by the supreme court, at the instance of the plaintiff! to compel the appointment of ah attorney for the defendant.
    Application by William IL Northington, as the executor of John D. Fralick, deceased, for a mandamus, proce-dendo, or other appropriate writ, process, or order, to be directed to the circuit court of Autauga, to compel that court to allow the petitioner to proceed in a certain cause, therein pending, in which the petitioner, as executor of said Fralick, was plaintiff, and one John E. Williams was defendant. It appeared from tbe transcript which was made an exhibit to the petition, that-.said Fralick commenced an action at law against said-Williams, by ordinary-summons and complaint, on the 25th > January, I860,- to recover tbe sum of $1-50, alleged to be-due for the use and occupation of a town lot in Prattville--; that at the March term, 1860, it was suggested to the' court, that the plaintiff" had departed this life, that said Nortbington had been appointed and qualified as his executor, -that the defendant had been declared a lunatic by the probate court of Au-tauga, and that he had no guardian; that thereupon said Nortbington, as such executor, was made a party to the suit, and the cause was continued,' -.in-order that-a-guardian might be appointed for the defendant; and that at-the next ensuing term, (Hon. Nat. Cook presiding,) as shown by the bill of exceptiens, the following proceedings-were had: “When the cause was regularly readied and called for trial, the plaintiff asked for a judgment-by default, with a writ of inquiry; no appearance having been enteredffor tbe defendant, and no plea being filed-or offered. -Thereupon, Thomas H. Watts, as amicus curies, suggested to the court, that the defendant-was of unsound-mind at the commencement of this suit, and had since been declared a lunatic, by tbe probate court of Autauga,’ and -had no guardian. The truth of this suggestion was mot controverted. It was proved, Also, that- the defendant .had no guardian, or com-mittea; and that it was shown to the court, at the last term, that he had been declared a lunatic by tbe probate court of-Autauga,- and bad no guardian; that the case was continued-at that team, in order that a guardian might be appointed, and that no guardian had yet been appointed. On this state of facts, the court refused to give or enter any judgment for the plaintiff, or to allow him to proceed; to which -t-heiplai-ntiff excepted. The plaintiff then asked the court to allow him to put his case to a jury, and to prove his cause of action before the jury; and offered to prove, that his cause of action was for necessaries furnished by his testator to said defendant and his family, during the year 1859i which were suitable to their rank and condition in life, and were worth at' least $100, and that the defendant was about forty years old at that time. On this state of facts, the court, refused to hear any part of the proof thus offered, or to- allow the plaintiff to put his case before a jury, or to proceed in it, unless he would first have a guardian appointed by-the probate court, and notify such guardian of tire pendency of this suit, and also refused to appoint a guardian ad litem for the defendant; to which several rulings -and decisions of the court the plaintiff excepted.” '
    CoLDTHWArrh, Rice & Semple,-for the motion.-
    !. Upon the plainest principles of justice, necessity, and humanity, the contracts of lunatics, for necessaries, or things suitable to their condition in life, will be upheld, and enforced by action at law, as if the lunatics were of sound mind.-^-Richardson v. Strong, ■ 18 -Iredell, 106 ‘, Ilallett v. Oalces, IXCushitig:, 296; Tally v. Tally, 2 t)ev. & Ratt. Eq. 887; Brotvn v. ifo'drell, 14 Eng. Com. L. 196 ; Chifctyhs Medical Jurisprudence, 850, note'#’; Baxter v.Earl of Portsmouth, 5 Ram. & Cr. 170; Ex parte Hastings, 14 Vesey,' 182; Chi tty on Contracts, 134.
    2..In such action, “the judgment is properly rendered against the lunatic himself.” — Walker v. Clay, 21 Ala. 797. A recovery may be bad, before a commission issued, or guardian of any kind appointed. — Richardson v. Strong, 13 Iredell, 106. And' the-- Necessity of this is apparent, When it is considered, that there ■ is no law to compel any person to accept a guardianship nf any kind for a lunatic.
    WA'ris, JufrGE &'Jacksoíi, contra.
   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.

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.  