Majority
p. 134Faulkner against M'Clure and others.
Headnote
A defendant non compos mentis, but of full age, and not an idiot from nativity may appear by the court, attorney and the Court on motoin will appoint attorney for him.P. RUGGLES, for the plaintiff,
moved that Stephen Jackson and Wheeler Case, attorneys of this Court, be appointed ¶ , . . „ attorneys to plead and defend in this cause, in behaJf of William M'Clure, and Nancy M'Clure, two of the defendants, who were non compos mentis, but not idiots from nativity, and were of full age. He read an affidavit, stating {-hat jacjtson and Case had given notice of retainer for one of the defendants, and that they were willing to appear for the said William and Nancy. He stated, that he did riot known of any adjudged case, which determined the rule of practice in such a case ; except what is said by Lord Coke, in Beverly"1 s case, (4 Co. 124. h.) that “ an idiot, in an action brought against him, shall appear in proper person, and he who pleads best for him, shall be admitted, as appears in 33 Hen. VI. 18 b. Otherwise, it is of him who becomes non compos mentis, for he shall appear by guardian, if he is within age, and by attorney, if he is of full age.”
This Court has no settled rule of practice", in a case like the present; but we see no objection to granting a rule that the attorneys who have been named, appear and defend for the defendants, stated in the affidavit to be of unsound mind and of full age.
Rule granted.[1]
(a) (a) Vide 1 Collinson on Lunacy, 341. s. 10, 11, 12, 13. p. 342. s. 15. If an idiot has irregularly appeared, and defended an action by attorney, it cannot be assigned for error. 2 Saund. 336. The Court of K. B. will not discharge a defendant from custody, on common bail, on the ground of his being insane at the time of his arrest, or had become so afterwards. Kernot v. Norman, 2 Term Rep. 390. Nutt v. Verney and others, 4 Term Rep. 121.