POST v. MACKALL.—3 BLAND. 479

Mackall, has been resident in the Maryland Hospital for the last
ten months, and is still there; and, during that period, has been of
unsound mind and incapable of the management of himself and his
affairs.—John P. Mackenzie, attending physician.—22d June, 1829.''

At law it is clear, that the lunacy of the defendant affords him
no exemption from arrest in civil cases; nor can he be discharged
without bail, in any case where, if sane, he might be held to
special bail. Steel v. Alan. 2 Bos. & Pttl. 362; Pillop v. Sexton. 3
Bos. & Pul, 550. And it appears to be understood, that a lunatic
defendant *in Chancery must be served with process, or
summoned in like manner as if he were sane. Carew v. 488
Johnston, 2 Scho. & Lefr, 292. But the committee, or legally ap-
pointed trustee of such lunatic, if he has one, who is not interested
in the case, is always appointed, as of course, his guardian an
litem. If the committee be adversely interested, or the lunatic
has no committee, then the Court will, on application, appoint a
guardian to answer for him. 2 Mad. Pra. 333; Mitf. Plea. 104;
Snell v. Hyatt, Dick. 287; Lloyd v.——, Dick. 460. The awarding
of a commission of lunacy is not an absolute matter of right, but
rests in the sound discretion of the Chancellor. It may be with-
held where no good is likely to result from it. In this instance,
the expense of the commission could only be paid out of the fund,
already, perhaps, exceedingly deficient, which should be appro-
priated altogether to the beuefit of the creditors of the deceased;
in which, and in many similar cases, because of the poverty of the
lunatic, as well as with a view to his proper personal treatment,
the Court will act upon the fact of his being actually in a condition
of mental incapacity as fully as if he had been found to be non
compos mentis by a regular inquisition. Sherwood v. Sanderson,
19 Ves. 289; Ex parte Tomlinson, I Ves. & Bea. 57; Brodie v. Barry,
2 Ves. & Bea. 36; Ex parte Evelyn, 7 Cond. Cha. Rep. 232; Exeter
v. Ward, 7 Cond. Cha. Rep. 258; Rebecca Owings' Cane, 1 Bland,
290; Coleyate D. Owings' Case, 1 Bland, 372.— In the matter of
Ann Oliver, 29 Com. Law Rep. 165.

Hence where the Court is satisfied, as in this instance, by a cer-
tificate of the attending physician of the hospital in which the
lunatic has been placed, or by such other proof as the nature of the
case will admit, that the intellectual infirmity of the defendant is
such, arising from madness, age, or any other cause, as to render
him unable to manage his own affairs, on application a guardian
ad litem may be appointed for him, and charged to defend the suit
on his behalf. Mitf. Plea. 104; Leving v. Carerly, Prec. Chan. 229;
Sheldon v. Aland, 3 P. Will. 111, n.; Wilson v. Grace, 14 Ves. 172;
Barrett v. Tickell, 4 Cond. Cha. Rep. 70; Rowlett v. Wilbraham, 5
Mad. 423; Careic v. Johnston, 2 Scho. & Lefr. 292. (g) So on the

(g) WORTHINGTON v. CRADDOCK—Bill for a conveyance in specific perform-
ance of the agreement of the deceased ancestor of the defendants. Sub-