
    DANIEL SHAW, Guardian of PENELOPE GREEN, a lunatic vs. JAMES BURNEY, JAMES LAWSON & WILIE THOMPSON.
    A suit in equity to recover what belongs to a lunatic, may be brought either in the name of the guardian or committee, or in the name of the lunatic by his guardian or committee.
    Where A. delivered to B., but without endorsing it, a bond for six hundred dollars, upon the contract of B. to support her during her life, and educate her son, and A. remained but three months in B’s family, when, from disagreement with B’s wife, A. left the family, apparently with B’s consent, and B. never afterwards contributed to the support of A., nor to the education of her son; held that B. could not, in conscience, claim to be a Iona fide purchaser of the bond, for a valuable consideration; and he was therefore decreed to surrender the bond, or account for its value to the guardian of A., who had been subsequently declared a lunatic.
    This was a bill filed in Bladen Court of Equity, in the name of Daniel Shaw, as guardian of Penelope Green, a lunatic, against the defendants, praying to have a certain bond delivered up to the plaintiff, or that the defendants may account to the plaintiff for the principal and interest. The defendants answered, depositions' were taken, and, at the Fall Term, 1839, of Bladen Court of Equity, the cause was set for hearing, and ordered to be transmitted to the Supreme Court. Upon the pleadings and proofs, the following appeared to be the case;
    James Burney, one of the defendants, executed a bond for six hundred dollars to Penelope Green, of whom the plaintiff is guardian. Wide Thompson, her son in law, one of the defendants, agreed, with the approbation of her father and brother, to board and maintain her during life, and educate her infant son, for the said bond. She placed the bond in the possession of Thomsom, but did not endorse it. She moved to the house of Thompson in March, 1836. In June of the same year, she and her daughter, the wife of Thompson, disagreed; the daughter asserting that they could not Jive in the same house together; that she had told her husband so, before he brought her. Thompson offered to build her a house on his land, and supply her with all necessaries; but she declined, giving as a reason that there would be no peace with her daughter, as long as she was on the land, Mrs. Thompson having said frequently that she would leave her home, if Mrs. Green remained. Thompson then assisted her and her child back to her father’s; but stated to her that he would come for her, whenever she was willing to return. In June, 1836, she wrote an order to Thompson for the bond above mentioned. He admitted he held it, but declined to send it to her. In August, 1836, she, by inquisition, was found to be a lunatic, and the plaintiff Shaw was appointed her guardian. Thompson was never at any expense or trouble with her, or her son, after she left his house. Thompson admitted to a witness that the high temper of his wife was the cause of the disturbance. In June, 1836, when the bond was due, and carrying interest, Thompson passed it without endorsement to the defendant, James Lawson.— There was no proof that any valuable consideration was paid for it by him. Lawson let Burney, the obligor, and one of the defendants, have the bond, and took from him two promissory notes to its amount. These notes are now held by Lawson, and remain unpaid, and Burney has destroyed the bond.
    No counsel for the plaintiff.
    
      Strange for the defendants.
   Daniel, Judge.

First a motion is made by defendants to dismiss the bill, because it is brought in the name of “ Daniel Shaw, guardian of Penelope Green, &c.” when it should have been brought in the name of the lunatic, by Shaw, as her committee. Actions at law, in behalf of lunatics, can be brought in no other name than theirs; they must not be brought in the name of the committee. Stock on non compos mentis 33. Cocks vs. Darson, Hob. 215. Nay. 27. Pop. 141. And they appear by guardian or attorney, according as they are within age or not. Ibid. But, in Equity, this incapacity to sue or defend, is more considerable. In this court, after an inquisition has taken place, and a committee has been appointed, the joinder of the name of the lunatic, though usual, is merely a formality. Stock 33 — Wyatt’s Pr. Reg. 272. Ridler vs. Ridler, 1 Eq. Ca. Ab. 279. Ortley vs. Messere, 7 Johns, Ch. R. 139. Calvert on Parties, 303. In England, the practice is to bring the bill in the name of the committee, as is done in the present case. Either way will be good. The motion is therefore overruled.

Secondly, as to the merits of the case. Mrs. Green had the legal title to the bond. She never endorsed it; and that legal title still continues in her as to the money due on the bond. Thompson contends that he is the assignee of the bond in equity. If he had purchased the bond bona fide, and for a valuable consideration, this Court would protect his purchase. 2 Vern. 595, 1 Mad. Ch. Pr. 545. But it seems to us, that it would be against conscience for him to insist on retaining six hundred dollars and interest, for the three months’ board of Mrs. Green and her son. He says, that he has always been ready, able and willing to comply with his part of the agreement. From the evidence, Thompson could not have completely and faithfully complied with his part of the agreement, without much domestic unhappiness. In what kind Of peace or comfort could Mrs. Green have lived at his hous 3? It seems to us, from the whole case, that there was a tacit understanding among the parties, that if Mrs. Green did not wish again to return to tbe house of Thompson, that the contract should be considered as rescinded; for Thompson has never since put himself to any trouble concerning the board of Mrs. Green, or the education of her son. When she sent for the bond, he did not set up any title to it, but seemed reluctant to send it. We think that Thompson cannot, in good conscience, ask this Court to declare that he is a bona fide purchaser of the bond for a valuable consideration. As Thompson has not established a title as equitable assignee oí the bond, Lawson, of course, has no claim in law or equity. Burney admits that he gave the bond, and that he has paid but a very small portion of it. We are of the opinion that, after a just allowance shall have been made for the board of Mrs. Green and her son, whilst they remained with Thompson, the plaintiff is entitled to a' decree for the residue of the principal and interest due on the bond; and it must be referred to the Master to enquire as to a proper allowance; and also, after deducting the sum that may be allowed, to state the balance due for the money mentioned in the said bond.

Per Curiam. Decree accordingly.  