Shepley, C. J.
— This writ of error coram nobis has been commenced by the guardian of the original defendant to procure the recall or reversal of a judgment rendered in this Court.
A motion was made to quash the writ and proceedings for certain alleged irregularities, which motion was overruled, and exceptions were filed and allowed, which have been waived, [121]*121as it is said, to have a decision upon the merits. The exceptions are therefore overruled, but this will authorize no inference, that the proceedings are considered to have been correct.
The error assigned is, “ that the said King at the time of the rendition of the said judgment was non compos mentis, and incapable of taking care of himself, nevertheless no guardian for said King was appointed, and no guardian ad litem, and there was no notice of the pendency of said action given to, and there was no appearance by any such guardian at or prior to the rendition of said judgment.”
It may be doubtful, whether it was intended to allege the error to have consisted in the rendition of a judgment against one non compos mentis, or in the rendition of it without the appointment of a guardian, or a guardian ad litem.
It is not probable that it was intended to allege, that a judgment rendered against one non compos mentis must of course be erroneous, for by the common law a judgment may be rendered against such a person founded upon contracts or liabilities, by which he is legally bound. If such were the intention, the position could not be sustained. It would be opposed to the general current of authority.
The cases, which determine how such a person shall appear and plead, as well as cases to be hereafter noticed, show, that judgments at law, and decrees in equity may be properly entered against them, when they are properly represented.
It is not alleged in the assignment of errors that a guardian had been appointed by any competent tribunal before the judgment was rendered; or that he was an idiot or an infant.
Whether the judgment was erroneous must therefore depend upon the question, whether the person alleged to be non compos mentis was under such a state of facts properly represented before the court.
In many jurisdictions after an inquisition has been taken, and it has been ascertained, that the person is of unsound pnind, and his person and estate have been committed to a [122]*122committee or guardian, a suit at law for any practical purpose may not be maintainable. The custody of the persons and estates of idiots and lunatics was given to the crown by statutes, 17 Edw. 2, chap. 10 and 19. A person aggrieved by such an inquisition was entitled by statute, 2 Edw. 6, chap. 8, sect. 6, to traverse it, and if not entitled he might obtain permission of the chancellor to do it, and if successful he might obtain a judgment on a contract or liability assumed dining the alleged idiocy or lunacy. Ex parte, Wragg & Feme, 5 Ves. 449; Ex parte, Hall, 7 Ves. 261. In the matter of Fitzgerald, 2 Sch. & Lef. 432. In New York, it has been regarded as a contempt of the court, having by statute the custody of the persons and estates of such persons, to commence and prosecute an action at law against them without permission. L'Amoureux v. Crosby, 2 Paige, 422; Matter of Hellen, 3, Paige, 199.
Where, as in this State, no such obstacle exists, the inquiry is presented, whether the original defendant, being of age and not an idiot, but non compos mentis, was properly represented before the court. The record shows, that service was regularly made upon him, and that he appeared by attorneys.
“ 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 H. 6, 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,” is the rule laid down in Beverley's Case, 4 Co. 123. And although one point asserted in that case, that no one shall be permitted to stultify himself, has been denied to be correct, especially in this country, the rule now presented does not appear to have been at any time denied to be a correct one. It has the sanction of the best authorities. 2 Saund. 333, note 4; Com. Dig. Idiot, D. 7.
This court is authorized to appoint a guardian ad litem, when a party becomes insane pending the suit. Chap. 115 sect. 86; Act approved on July 19, 1849, chap. 104. And it [123]*123may by implication, be authorized to do it, when the person, was not of sound mind before the suit was commenced. Chap. 110, sect. 33. The Court can have no knowledge of the fact, until it receives it from some proper source ; and it is then a matter of discretion to be exercised or not according to its judgment upon the proof presented.
The law does not appear to have imposed it as a duty to be performed by a plaintiff, to ascertain the mental capacity of a defendant and to bring it before the Court for its consideration, that such a guardian may be appointed. It may be prudent in cases of doubt for him to do so, lest his judgment should be liable to be disturbed by a petition for a review, or possibly by a suit in equity.
There being no legal obligation resting upon the Court or upon the plaintiff to ascertain the facts and have such a guardian appointed, its omission cannot be assigned as error.
When one non compos has been properly before the Court, “ acts done by matter of record, as fines, recoveries, judgments, statutes, recognizances, &c. shall bind as well the idiot as he who becomes non compos mentis." Beverley's case, 4 Co. 123; Mansfield's case, 12 Co. 124; Fonbl. Eq. B. 1, c. 2, § 2, note k.
Nothing can be assigned for error, which contradicts the record. 2 Saund. 101, 102; Com. Dig. Pleader, 3, B. 16; Hilbut v. Held, Stra. 684.
When the record of a domestic judgment states, that the defendant appeared by attorney, testimony to prove that the attorney was not duly authorized, cannot be received, for it would contradict the record. If the question be, whether a foreign judgment was rendered by a court having jurisdiction and there be found in the record a statement, that the defendant appeared by attorney, such testimony may be received, for the reason, that there can, properly speaking, be no record made by a court having no jurisdiction. Anonymous, Salk. 88; Stanhope v. Firmin, 3 Bing. N. C. 301; Hall v. Williams, 6 Pick. 232; Gleason v. Dodd, 4 Metc. 333; Aldrich v. Kin[124]*124ney, 4 Conn. 380; Starbuck v. Murray, 5 Wend. 148; Reed v. Pratt, 2 Hill, 64.
In the case of Dennis v. Dennis, 2 Saund. 329, the original defendant appeared by attorney, and by her next friend brought a writ of error to reverse it. The error assigned was, that she was an idiot a nativitate, and that she ought to have appeared by her friend, and not by attorney. The defendant in error presented by plea an issue on the fact of her being an idiot a nativitate, which was joined and the plaintiff in error was nonsuited, and the judgment was affirmed.
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Shepley, C. J.
— This writ of error coram nobis has been commenced by the guardian of the original defendant to procure the recall or reversal of a judgment rendered in this Court.
A motion was made to quash the writ and proceedings for certain alleged irregularities, which motion was overruled, and exceptions were filed and allowed, which have been waived, [121]*121as it is said, to have a decision upon the merits. The exceptions are therefore overruled, but this will authorize no inference, that the proceedings are considered to have been correct.
The error assigned is, “ that the said King at the time of the rendition of the said judgment was non compos mentis, and incapable of taking care of himself, nevertheless no guardian for said King was appointed, and no guardian ad litem, and there was no notice of the pendency of said action given to, and there was no appearance by any such guardian at or prior to the rendition of said judgment.”
It may be doubtful, whether it was intended to allege the error to have consisted in the rendition of a judgment against one non compos mentis, or in the rendition of it without the appointment of a guardian, or a guardian ad litem.
It is not probable that it was intended to allege, that a judgment rendered against one non compos mentis must of course be erroneous, for by the common law a judgment may be rendered against such a person founded upon contracts or liabilities, by which he is legally bound. If such were the intention, the position could not be sustained. It would be opposed to the general current of authority.
The cases, which determine how such a person shall appear and plead, as well as cases to be hereafter noticed, show, that judgments at law, and decrees in equity may be properly entered against them, when they are properly represented.
It is not alleged in the assignment of errors that a guardian had been appointed by any competent tribunal before the judgment was rendered; or that he was an idiot or an infant.
Whether the judgment was erroneous must therefore depend upon the question, whether the person alleged to be non compos mentis was under such a state of facts properly represented before the court.
In many jurisdictions after an inquisition has been taken, and it has been ascertained, that the person is of unsound pnind, and his person and estate have been committed to a [122]*122committee or guardian, a suit at law for any practical purpose may not be maintainable. The custody of the persons and estates of idiots and lunatics was given to the crown by statutes, 17 Edw. 2, chap. 10 and 19. A person aggrieved by such an inquisition was entitled by statute, 2 Edw. 6, chap. 8, sect. 6, to traverse it, and if not entitled he might obtain permission of the chancellor to do it, and if successful he might obtain a judgment on a contract or liability assumed dining the alleged idiocy or lunacy. Ex parte, Wragg & Feme, 5 Ves. 449; Ex parte, Hall, 7 Ves. 261. In the matter of Fitzgerald, 2 Sch. & Lef. 432. In New York, it has been regarded as a contempt of the court, having by statute the custody of the persons and estates of such persons, to commence and prosecute an action at law against them without permission. L'Amoureux v. Crosby, 2 Paige, 422; Matter of Hellen, 3, Paige, 199.
Where, as in this State, no such obstacle exists, the inquiry is presented, whether the original defendant, being of age and not an idiot, but non compos mentis, was properly represented before the court. The record shows, that service was regularly made upon him, and that he appeared by attorneys.
“ 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 H. 6, 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,” is the rule laid down in Beverley's Case, 4 Co. 123. And although one point asserted in that case, that no one shall be permitted to stultify himself, has been denied to be correct, especially in this country, the rule now presented does not appear to have been at any time denied to be a correct one. It has the sanction of the best authorities. 2 Saund. 333, note 4; Com. Dig. Idiot, D. 7.
This court is authorized to appoint a guardian ad litem, when a party becomes insane pending the suit. Chap. 115 sect. 86; Act approved on July 19, 1849, chap. 104. And it [123]*123may by implication, be authorized to do it, when the person, was not of sound mind before the suit was commenced. Chap. 110, sect. 33. The Court can have no knowledge of the fact, until it receives it from some proper source ; and it is then a matter of discretion to be exercised or not according to its judgment upon the proof presented.
The law does not appear to have imposed it as a duty to be performed by a plaintiff, to ascertain the mental capacity of a defendant and to bring it before the Court for its consideration, that such a guardian may be appointed. It may be prudent in cases of doubt for him to do so, lest his judgment should be liable to be disturbed by a petition for a review, or possibly by a suit in equity.
There being no legal obligation resting upon the Court or upon the plaintiff to ascertain the facts and have such a guardian appointed, its omission cannot be assigned as error.
When one non compos has been properly before the Court, “ acts done by matter of record, as fines, recoveries, judgments, statutes, recognizances, &c. shall bind as well the idiot as he who becomes non compos mentis." Beverley's case, 4 Co. 123; Mansfield's case, 12 Co. 124; Fonbl. Eq. B. 1, c. 2, § 2, note k.
Nothing can be assigned for error, which contradicts the record. 2 Saund. 101, 102; Com. Dig. Pleader, 3, B. 16; Hilbut v. Held, Stra. 684.
When the record of a domestic judgment states, that the defendant appeared by attorney, testimony to prove that the attorney was not duly authorized, cannot be received, for it would contradict the record. If the question be, whether a foreign judgment was rendered by a court having jurisdiction and there be found in the record a statement, that the defendant appeared by attorney, such testimony may be received, for the reason, that there can, properly speaking, be no record made by a court having no jurisdiction. Anonymous, Salk. 88; Stanhope v. Firmin, 3 Bing. N. C. 301; Hall v. Williams, 6 Pick. 232; Gleason v. Dodd, 4 Metc. 333; Aldrich v. Kin[124]*124ney, 4 Conn. 380; Starbuck v. Murray, 5 Wend. 148; Reed v. Pratt, 2 Hill, 64.
In the case of Dennis v. Dennis, 2 Saund. 329, the original defendant appeared by attorney, and by her next friend brought a writ of error to reverse it. The error assigned was, that she was an idiot a nativitate, and that she ought to have appeared by her friend, and not by attorney. The defendant in error presented by plea an issue on the fact of her being an idiot a nativitate, which was joined and the plaintiff in error was nonsuited, and the judgment was affirmed. This affirmance appears to have been made upon the rule laid down as before stated in Beverley’s case.
In the case of White v. Palmer, 4 Mass. 147, the error assigned was, that the original defendant was non compos mentis, and that White and Hall long before the teste of the writ had been legally appointed guardians, and that they had no notice of the suit. The judgment was reversed for that cause, but the case does not decide, that the judgment would not have been legal, if the non compos had not been under guardianship.
In the case of Hathaway v. Clark, 5 Pick. 490, the error assigned was, that the original defendant at the time of the service of the writ and of the rendition of judgment was under guardianship as a person non compos mentis. The fact of his being thus under guardianship was traversed, and an issue joined thereon was found for the defendant in error, and the judgment was affirmed. The mere fact, that the defendant was of unsound mind at those times, does not appear to have been considered as constituting any objection to an affirmance cf the judgment.
In criminal proceedings, the defence according to the usual ■course of proceeding is often made by an attorney not assigned by the court, that the accused was insane. The verdict of conviction or acquittal may have been found after a decision upon that ground of defence. It would present an anomaly in judicial proceedings to find it assigned for error, that no guardian ad litem or other guardian was appointed to conduct [125]*125the defence. In such cases it is true, that the accused must appear in person and answer to the charge. Yet if he be actually insane then, that affords him no advantage for his own protection. His defence is managed by an attorney selected by himself, or by his friends, and it is not known, that this course of proceeding in the administration of criminal law, has occasioned any grievance requiring redress.
In the administration of justice in civil cases there is an intrinsic difficulty in cases of alleged unsoundness of mind, in framing a rule for the protection of such persons before the trial, when they have not by some competent tribunal been adjudged to be of unsound mind. Whether the weakness of mind or decay of intellect is so great as to prevent their being regarded as compos mentis, is often a question of great delicacy and difficulty. One, which in many cases, can only be decided properly after a most careful and thorough investigation and examination of testimony. If a court upon affidavits and counter affidavits should decide in such cases not to appoint a guardian ad litem, this being a preliminary proceeding would not ordinarily appear of record, and if it were regarded as error for a non compos of full age to appear and defend by attorney, he might bring error, assign for error his unsoundness of mind and the omission to appoint a guardian ad litem and try before a jury the very question submitted in the first instance to the decision of the court, and have that decision regarded as erroneous and the foundation of a writ of error to reverse the judgment. Not only so, but the same question may have been also submitted to the jury as a ground of defence in the original action and have been decided by them also, and then again be submitted to another jury in a writ of error.
The mere fact, that a party defendant is non compos mentis during any of the preliminary proceedings, or when judgment is rendered, constitutes no ground of defence, for both at law and in equity a contract or liability assumed by him while of sound mind, may be enforced against him, when he is of unsound mind. Yates v. Boen, Stra. 1104; Kernot v. Noo[126]*126man, 2 T. R. 390; Nutt v. Verney, 4 T. R. 121; Ibbotson v. Galway, 6 T. R. 133; Steel v. Allan, 2 B. & P. 362 and 437; Pillop v. Sexton, 3 B. & P. 550; Baxter v. Portsmouth, 2 C. & P. 178; Hathaway v. Clark, 5 Pick. 490; Robertson v. Lain, 19 Wend. 649; Clark v. Dunham, 4 Denio, 262; Owen v. Davis, 1 Ves. 82; Niell v. Morley, 9 Ves. 478; Anonymous, 13 Ves. 590.
Cases have been cited to show, and they do show, that a judgment rendered against an infant will be erroneous, if the record shows, that he appeared by attorney and not by guardian. The inference thence appears to have been drawn, that the rule is the same respecting the appearance of one of full age and of unsound mind. The inference is unauthorized. The rule respecting the appearance of an infant, whether of sound or unsound mind is, that he must appear by guardian. 2 Saund. 96, note 2; Com. Dig. Pleader, 2, c. 2; Beverley's case. And one of unsound mind of full age, must appear by attorney.
Nor does it appear to be essential, that the law should be otherwise for the protection and preservation of the rights of persons non compos mentis. The defence must be, that he was in that condition, when the contract was made or liability incurred; and the only cause of complaint must be, that he was not in a condition to have a fair trial. If it should be made to appear, that he did not on that account have a fair trial and that injustice had been done, the court upon petition might grant a review.
And when a judgment wholly unjust has been obtained against one non compos mentis, he may in certain cases obtain relief in equity by a perpetual injunction against the enforcement of that judgment. In the case of Homer v. Marshall, 5 Mumf. 466, a judgment appears to have been obtained against a monomaniac for slanderous words spoken of one with reference to the subject, concerning which his mind was unsound, and a perpetual injunction was obtained against the enforcement of that judgment. Judgment affirmed.