Buchanan v. Rout

Court of Appeals of Kentucky

Buchanan v. Rout

18 Ky. 114, 2 T.B. Mon. 114, 1825 Ky. LEXIS 57

DecidedJuly 8, 1825

StatusPublished

This text of 18 Ky. 114 (Buchanan v. Rout) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buchanan v. Rout, 18 Ky. 114, 2 T.B. Mon. 114, 1825 Ky. LEXIS 57 (Ky. Ct. App. 1825).

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Opinion

Judge Trimble

delivered the opinion of the Court.

THIS was an action of trespass for mesne profits* brought by Lydia Buchanan, a lunatic, by John G. Martin, her attorney, against Gabriel Rout. The defendant demurred to the declaration, the plaintiff joined in demurrer, and the court gave judgment for the defendant.

We are unable to perceive the principle upon which the court beioW sustained the demurrer to the declaration. It is in the usual form, and sets forth, in apt words, a valid cause of action. ' ■ '

It was suggested in argument, that the objection made to the declaration in .the court below, was, that plaintiff appeared by attorney, and not by her committee. This objection is clearly untenable. The principle is well settled, that a lunatic must appear by guardian, if within age, or by attorney, if of full age. See Cameron’s committee vs. Pottinger, 3 Bibb 11, and the authorities'there cited. In this case, it does not appear that the lunatic was within age when the suit was commenced, and we cannot presume that such was the fact. If she was of full age, according to the well settled doctrine of the common law, she could appear only by attorney.

The judgment is reversed with costs and the cause remanded to the court below, for further proceedings to be had therein, not inconsistent with this opinion,

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Judge Trimble

delivered the opinion of the Court.

THIS was an action of trespass for mesne profits* brought by Lydia Buchanan, a lunatic, by John G. Martin, her attorney, against Gabriel Rout. The defendant demurred to the declaration, the plaintiff joined in demurrer, and the court gave judgment for the defendant.

We are unable to perceive the principle upon which the court beioW sustained the demurrer to the declaration. It is in the usual form, and sets forth, in apt words, a valid cause of action. ' ■ '

It was suggested in argument, that the objection made to the declaration in .the court below, was, that plaintiff appeared by attorney, and not by her committee. This objection is clearly untenable. The principle is well settled, that a lunatic must appear by guardian, if within age, or by attorney, if of full age. See Cameron’s committee vs. Pottinger, 3 Bibb 11, and the authorities'there cited. In this case, it does not appear that the lunatic was within age when the suit was commenced, and we cannot presume that such was the fact. If she was of full age, according to the well settled doctrine of the common law, she could appear only by attorney.

The judgment is reversed with costs and the cause remanded to the court below, for further proceedings to be had therein, not inconsistent with this opinion,

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18 Ky. 114, 2 T.B. Mon. 114, 1825 Ky. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchanan-v-rout-kyctapp-1825.

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