| Ala. | Jan 15, 1843
The fifty-second section of the act of 1806, « concerning wills and testaments; the settlement of intestate’s estates; and the duty of executors, administrators and guardians” enacts, that the guardians of idiots, lunatics, and persons non compos mentis, are empowered “ to collect, sue for and recover, all just debts due to such idiot, lunatic, or person non compos mentis.” [Aik. Dig. 221.] The thirty-fourth section of the act of 1819, “ to regulate the proceedings hr the courts of law and equity in this State,” provides, that the guardians of idiots and lunatics, “ shall have the same power to all intents, constructions, and purposes, and shall be subject to the same rules, orders, and restrictions, as guardians of orphans are.” [Aik. Dig. 250.]
If the first statute is not sufficiently comprehensive, by an equitable construction, to authorise the guardian to maintain an action for any other cause than what is technically a debt, the last enactment is in terms sufficiently broad to entitle him to sue in any case in which the guardians of orphans might bring a suit. This conclusion appears to us so palpably clear as to render unnecessary any argument or illustration upon the point. That an infant might sue by his guardian in a case like the present, has not, nor can be successfully questioned. [See Sutherland v. Goff 5 Porter’s Rep. 508.]
But the demurrer to the declaration should have been sustained upon another ground. The guardian declares in his own name, describing himself as the guardian of the idiot, alleges that the idiot was possessed of the slave, lost her, and that the defendant found and converted her to the damage of the idiot. The fair inference from all this is, that the guardian never had the possession, either actually or by construction; but that the cause of action accrued before his appointment. This being the case, there is not the slightest pretence that he is authorized to sue in his own name. That the form of declaring makes him the real plaintiff and that the action cannot be thus supported, for the cause stated abundantly appears from repeated decisions of this court.—
In respect to the admissibility of the deposition, it was not necessary that the commissioners shonld have certified in totidem verbis, every particular direction contained in the commission. If they certify generally, that they have examined the witness pursuant to the commission, it is quite sufficient. [Sanford & Cleaveland v. Spence, at the last term, and Luckie v. Carothers, at this term.] In the present case, neither the commission or certificate are sufficiently recited to enable us to say whether the latter conforms to the decisions cited.
The question is, does the deposition appear to have been taken at the time when the notice to the plaintiff informed him the witness would be examined. That the commission was executed on that day, is not disputed, but the objection is, that it should appear affirmatively, that the examination was made between the hours of 10 A. M. and 4 P. M. If the certificate of the commissioners is insufficient, for the omission to affirm this fact, it might have been aided by extrinsic proof, that such was the truth of the matter. The case of Waters v. Brown, [3 Marsh. Rep. 558,] is explicit upon this point. But we think, to have authorized the admission of the deposition, no auxiliary proof was necessary. The reasonable inference is, that the commission was executed within the hours in which such business is transacted. If the deposition was taken previously, it would be competent for the party objecting, to show that he attended within the proper time, or would have attended, but for the premature examination of the witness; if after, he might show, that he would have been present within the hours designated in the notice. And to establish these facts, we should be much inclined to admit the oath of the party objecting.
If the certificate of the commissioners or caption of the deposition affirms the fact, that the witness came before them in pursuance of the commission, (fee., or employs other equivalent 'terms, and the commission conforms in its special requirements to the notice, the conclusion would be, that the witness was examined within the proper hours of the day. And even in the absence of such a special commission and certificate or caption, it would be prima facie admissible.
The other objections arising upon the bill of exceptions, are ful