The opinion of the court was delivered by

No man should be bound by a judgment rendered against him; when he has had no day in court; and if a judgment *250be so rendered, the audita querela is an appropriate remedy to set it aside. In accordance with this principle it has long been held in this state, that a minor, who has had a judgment rendered against him by a justice of the peace, without a guardian being notified of the suit, may be relieved upon audita querela. Though this may not be exactly in conformity to the common law, yet, as under our law it would be difficult to devise a remedy in such case, if the one by audita querela was denied, we are not dissatisfied with the views of our courts, in considering such a case as one in which the minor has had no day in court. If the judgment could have been set aside upon a writ of certiorari, or reversed upon a writ of error, doubtless a different course of decisions would have obtained. We are now called upon to extend the same principle to the case before us.

The situation of infants and persons of insane mind is parallel in law, and in the reason of things, in many respects. The contracts of either are not binding, and for the same reason ; and both may alike avoid them by plea. Neither has sufficient discretion to manage the ordinary business transactions of life, and much less to conduct a suit at law. The various provisions of our statutes require notice to be given, in proceedings affecting the interests of insane persons, to their guardians, as in the case of minors. I see no reason, which can be urged, why a judgment before a justice of the peace should in any case be set aside upon an audita querela, which may not with equal force apply to the present case. Indeed, it may be pre-eminently said of an insane person, that he has had no day in court.

The judgment of the county court must be reversed, and the judgment of the justice and the execution, which issued thereon, be set aside.

The plaintiff being satisfied with nominal damages, judgment was entered up in this court for one cent damages and costs.

dissenting. The argument has not convinced me, that a writ of audita querela will lie to vacate the judgment rendered by the justice of the peace. Idiots and lunatics are liable to be sued ; and the statute has made no provision for notifying the guardians, if any are appointed. The person suing them is under *251no obligation to inquire, whether any guardian has been duly appointed. It is the duty, of the court, before whom they are compelled to appear, to see that they are properly defended. The declaration does not disclose, whether the defendant appeared in person, or by attorney, or whether he was defaulted. If he appeared in person, it was the duty of the court to see that he was properly defended; and if, through their fault, he was not, the judgment is not to.be vacated, and the party subjected to the payment of damages and costs, for the fault of the court. If the judgment was rendered by default, there is another remedy provided by statute.

That an idiot, or lunatic, is liable to be arrested, as in ordinary cases, even though the insanity may have been established by commission, has been determined. The cases of Nutt v. Verney, 4 T. R. 121, and Kernott v. Norman, 2 T. R. 390, decided, that the court will not discharge a defendant out of custody on the ground of insanity, either before or after the arrest; and in the case of Steele v. Alan, a commission of lunacy had issued against the defendant, previous to the arrest. The course in England is for the defendant to appear in person, and then any one praying to be admitted as his next friend may sue or defend for him. The committee, either of his person, or estate, are not to be notified, or appear and defend for him. In the case of Gibbard v. Roe, 3 Man. & Grang. 87, service of a declaration in ejectment upon a lunatic in an asylum was held to be sufficient. I am not aware of any authority, either in this country, or Great Britain, which declares a judgment rendered against a person insane, or non compos, void ; but ample provision is made by the common law to protect their rights, and that they should be suitably defended.

As the complainant was liable to be sued, as it does not appear but that he appeared in person to answer to the suit, I can perceive no good reason for setting aside the judgment of the justice. If he appeared, we are not to presume, or believe, that the justice court omitted their duty, by rendering a judgment against him without his having an opportunity to defend.

It is urged, that this court have sustained writs of audita querela, to set aside judgments rendered against infant defendants. The authority of those cases is not to be extended, and may be questioned. If it were a new question, and there were no decided cases in this *252state, I apprehend a writ of audita querela would not now be sustained. The cases, however, are widely different. An infant must appear by prochien ami, or by guardian, and this must appear on the record; an idiot must appear in person. The complaint, in the case before us, does not set forth that the complainant appeared by attorney, or that he was not personally present before the court. Even in the case of an infant it is not necessary to notify a guardian at the time of the arrest, but the court may appoint a guardian ad litem. It was never required, that they should appoint a guardian ad litem toan idiot, or lunatic; though they may permit any one to defend for him, — who is usually an attorney. 1 Tidd’s Pract. 62, 63.

It appears to me farther, that the case of Ex parte Leighton, 14 Mass. 207, is directly in point against sustaining this writ; for the discharge of Leighton was claimed on the ground that judgment was rendered against him after the appointment of a guardian. The court, after looking into the case of Thacher et al. v. Dinsmore, 5 Mass. 299, in which there was an obiter dictum, that an insane person shall be defended by guardian, refused to discharge the prisoner, — obviously on the ground that no notice to the guardian was required ; and there is no intimation, that the court, before whom an insane person is sued, are obliged to appoint a guardian ad litem, —which is neither required at common law, nor by the provisions of any statute.

I think that the complaint is insufficient, and that the defendant is entitled to judgment.