of managing his business affairs." 5. "No guardian ad litem was appointed by the Court for said Asa Leach, he being at that time non compos mentis, and having no guardian." 6. The judgment was obtained by collusion and fraud. 7. Asa Leach did not at the time owe Mary Marsh anything. 8. By the rendition of said.

judgment, great injustice was done, &c.

The defendant, in her answer, traversed the first, second, third, and sixth assignments of error, but pleaded to the fourth, fifth, seventh, and eighth specifications, that there was "no error, either in the record and proceedings aforesaid, or in giving the judgment aforesaid," &c.

It was admitted that Asa Leach was non compos mentis, as alleged in the writ of error, and that the plaintiff was duly appointed administrator of said Asa Leach, May 5, 1856.

The depositions of Ezra Fairfield and John B. Fairfield, introduced by the plaintiff, tended to prove that the deceased was non compos mentis from about 1851 to his death.

It was agreed that the full Court should render such judgment as the law and facts authorize.

E. E. Bourne, Jr., for the plaintiff, argued elaborately the several points presented by the assignment of errors; but the case was decided mainly with reference to the fourth specification.

The question whether a judgment rendered against a person insane or non compos mentis at the time of the service of the writ upon him is erroneous has never been raised in this State; but many analogous cases are found in the Reports.

In Mansfield vs. Mansfield, 13 Mass. 412, which was a libel for divorce, the respondent was defaulted; but, on suggestion to the Court that he had become insane, the default was taken off, and further proceedings stayed until a guardian was appointed.

A judgment recovered against a person out of the State, without actual notice, will be reversed on error. Blanchard vs. Wildes, 1 Mass. 341; Smith vs. Rice, 11 Mass. 307; Thatcher vs. Miller, 11 Mass. 413; Same vs. Same, 13 Mass. 270; Wilton Manuf. Cc. vs. Woodman, 32 Maine 185; Galusha vs. Cobleigh, 13 N. H. 79.

A party having a right to appeal, but, without negligence on his

part, unable to avail himself of his right, is entitled to a writ of error. Monk vs. Guild, 3 Met. 373; Skepwith vs. Hill, 2 Mass. 35; Keen vs. Turner, 13 Mass. 265; Gay vs. Richardson, 18 Pick. 418.

Other grounds of reversal of judgment on account of incapacity to defend, are the death of one of the parties after suit commenced, the infancy of a party having no guardian, or coverture of a party without the joinder of the husband. 2 Tidd's Practice 1033; 3 Black. Com. 406, note 4; Smith vs. Rhodes, 29 Maine 360.

These authorities are based on the ground that the defendant has been barred of the opportunity to make a defence, either from want of notice or incapacity to defend. Do not the same reasons apply with equal force to the case of a person non compos mentis? Mitchell vs. Kingman, 5 Pick. 434.

The Court in this State, although the question has not been distinctly decided, has repeatedly intimated that error is the proper remedy in the case of a judgment recovered against a person so incapacitated. Smith vs. Rhodes, before cited; McArthur vs. Starret, 43 Maine 435.

In the case of King vs. Robinson, 33 Maine 114, relied upon by the defendant in error, although King was non compos, and no guardian was or had been appointed for him, yet he appeared by attorney, a hearing was had, and a verdict was rendered against him. The Court decided that, as he was represented in Court by his attorney, the judgment ought not to be reversed. King had counsel, and his counsel did not request the appointment of a guardian. The Court, therefore, decided against him. The decision is not a precedent for a case so unlike as the case at bar.

It is true there are incidental remarks, in the opinion delivered by C. J. SHEPLEY, which were not called for by the case, nor sustained by the authorities cited, some of which, however, are English cases decided on extremely arbitrary and anti-republican principles, and others are New York cases based on the old English authorities.

In a case of this kind, a writ of error is the most efficient and direct, as well as the least expensive process to obtain justice.

Arnold vs. Tourtellot, 13 Pick. 172; Hart vs. Huckins, 5 Mass. 260; Blanchard vs. Wilde, 1 Mass. 341; Wilton Manufacturing Co. vs. Butler, 34 Maine 431.

Goodwin and Fales, for the defendant in error, after arguing the 1st, 2d, 3d, 6th, 7th, and 8th specifications of error, contended, with regard to the 4th and 5th, that the mere fact that a party defendant was non compos mentis is no error. It has never been decided that proceedings may not be instituted, and prosecuted to final judgment, against a person who has become non compos. King vs. Robinson, 33 Maine 114.

The 5th specification is void for uncertainty. Even brief statements must contain specifications stated with certainty and precision to a common intent. Washburne vs. Mosely, 22 Maine 160; Nelson vs. Swan, 13 Johns. 483; 1 Chitty's Pleadings 398; Eustis vs. Kidder, 26 Maine 97.

The counsel for the plaintiff allege a distinction between this case and that of King vs. Robinson, on the ground that in that case there was an appearance by attorney, and a trial, whereas here there was a default. Yet he has not assigned that fact for error. The defendant was duly notified of the pendency of the suit, and failed to appear. The Court entered a default, pursuant to the statute, c. 82, § 2.

If by such default injustice was done to the defendant, he can on petition have a review; but there can be no error in following the provisions of the statute.

The mere fact that a defendant is non compos mentis, at the service of the process or when judgment is rendered, is no defence; for, 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. King vs. Robinson, before cited; Hix vs. Whitmore, 4 Met. 545; White vs. Palmer, 4 Mass. 147; Hathaway vs. Clark, 5 Pick. 490.

The opinion of the Court was drawn up by

GOODENOW, J.-This is a writ of error, dated September 14, 1857, to reverse a judgment rendered by this Court on the 25th

day of January, 1855, on default, against the plaintiff's intestate. The officer returned an attachment of real estate, and that he made service on the defendant "by leaving a summons at his last and usual place of abode," &c.

The fourth error assigned is, that-"The said Asa Leach, at the time that the officer's return of service of said writ upon said Asa Leach purports to have been made, and for a long time before that date, and from that time until his decease after the rendition of said judgment, was non compos mentis, and incapable of taking care of himself, and of managing his business affairs." To this assignment of error, the defendant pleads "in nullo est erratum,” which plea is a confession of all errors in facts which are well assigned. The depositions in the case prove the fact, and it is expressly admitted, that the plaintiff's intestate at the times when, &c., was non compos mentis, as alleged in the writ. Is this such an error as requires us to reverse the judgment? It is a fundamental principle, in all good governments, that no man shall be condemned, civilly or criminally, without first having had an opportunity to be heard in his defence. Saint Paul was exceedingly happy to have an opportunity to answer for himself, touching the things whereof he was accused by the Jews, and it would have been a great loss to the world if he had been deprived of it.

This is an error not appearing on the face of the record. It is an error of fact, if error it is.

"But a reversal may take place for errors of fact, as when the defendant was a maniac, or non compos mentis, being legally incapable of making a defence, or when he was absent from the State, and had no actual notice of the suit, and was defaulted and judgment rendered at the first term, without a continuance as the statute requires." Smith vs. Rhodes, 29 Maine 361, and cases there cited.

In Mitchell et al. vs. Kingman, 5 Pick. 431, it was held that a person may plead that he was non compos mentis, or show it in evidence under the general issue, in avoidance of his contract. In Seaver vs. Phelps, 11 Pick. 304, the doctrine of the above case has been again declared to be sound, and the established law of

Massachusetts, notwithstanding some recent decisions in England, which seem to hold a different doctrine. In Grant vs. Thompson, 4 Conn. 204, the defence of insanity was admitted to an action on a promissory note.

In Seaver vs. Phelps, WILDE, J., says,-It is sometimes difficult to determine what constitutes insanity, and to distinguish between that and great weakness of understanding. The boundary between them may be very narrow, and, in fact, often is, although the legal consequences and provisions attached to the one and the other respectively are widely different. In the present case, however, this point is settled by the verdict, and no question is made respecting it." The same point is settled in the case at bar. The fairness of the defendant's conduct, if fair it was, cannot supply the want of capacity in the plaintiff's intestate.

While the courts have power to protect the property of a defendant who is temporarily absent from the State, against a suit of which he has not had notice, if they have no power to protect the property of an insane man against a suit when there has been no hearing, and no opportunity for a hearing, and no notice to a responsible party of the existence of the suit, it is to be regretted, to be lamented. It is said this specification is insufficient, that the original defendant was "non compos mentis" at the time when, &c. When the insanity is once established, or admitted to have existed, the fact carries all the other necessary consequences along with it. It follows that there has been no hearing; no legal party.

In King vs. Robinson, 33 Maine 123, the late C. J. SHEPLEY says, "The law does not appear to have imposed it as a duty to be performed by the plaintiff to ascertain the mental capacity of the defendant and to bring it before the Court for its consideration, that such a guardian" (ad litem) "may be appointed." But with all due respect, it seems to us that reason and justice and safety do impose such a duty upon the plaintiff in a case like the present. In 1 Mass. 341, SEDGWICK, J., says,-"Although the Court cannot know the fact," (of absence from the State,) "otherwise than by suggestion entered on the record, yet, if the plaintiff will take judgment, he does it at his peril. It was his duty to make the