
    J. R. Davis versus N. Drew, trustee of Joseph Knight.
    The guardian of an insane person cannot be adjudged the trustee of Ms ward, until his accounts have been adjusted in the probate court, and a balance found in his hands.
    This was an action of assumpsit. The trustee appeared, and in his disclosure, stated, that, on the 14 May, 1830, he was duly appointed guardian of Knight, the principal, who is an insane person, and that he had in his hands, as guardian, property of the principal.
    
      
      Lyford, for the plaintiff.
    ¿V*. Eastman, for the trustee.
   The opinion of the court was delivered by •

Richardson C. J.

An insane person may sue and be sued. Cornyn’s Digest, “ Idiot,” D, ?•

And an insane person may be arrested on mesne process and execution. 1 Tidd, 184; 2 D. & E. 390; 4 ditto, 121; 6 ditto, 133; 2 B. & P. 362; 14 Mass. Rep. 207, Leighton's case.

And when an execution is obtained against an insane person it may be satisfied out of his property. 5 Mass. Reports, 301.

But every guardian of a person non compos mentis, gives bond for the faithful discharge of his duly, according to law, and it is his duty to pay the debts out of the property, in the least expensive manner. 1 N. H. Laws, 340.

No action con be hiaimnhwd l.y n gwa'lLm against his ward, until his a. conn.3 .ore a1]'1 md in the probate court. 2 N. H. Rep. 395.

And it is supposed that no action can be maintained by the ward, against the guardian, for any money in the hands of the guardian, until the accounts are adjusted by the judge of probate. It cannot be known what is in the hands of the guardian until the accounts are adjusted,

A creditor may compel the guardian to adjust his accounts, and if, after that, it is found there is a balance in his hands, and he refuses to pay any judgment which may have been obtained against his ward, it will be a breach of the condition of his bond.

Perhaps, if his accounts were adjusted, and it appeared that he had a balance in his hands, he must be adjudged trustee,

But in this ease, as it does not appear that his accounts have been adjusted, he must be discharged.

Judgment for the trustee.  