
    Cameron’s committee vs. Pottinger.
    
      April 16.
    Committee of a lunatic cannot mam-cam an action Tn their names on covenant given to the lunatic*
    An idiot of lunatic may sue or be iued*
   OPINION of the Court, by

Ch. J. Boyie.

This was an action of covenant, brought by the appellants as the committee of a lunatic, against the appellee, on an agreement entered into between him and the lunatic. Upon a demurrer to a plea to the action the court be, low gave judgment for the appellee, from which the appellants have prosecuted this appeal.

Before we investigate the errors assigned by the appellants, it is material to decide upon their right to maintain the action 5, for if they have no such right, it is clear that they cannot maintain an appeal or writ of error to reverse the judgment.

Were the point unsettled by any authority, there would be but little doubt upon general principles that the committee of an idiot or lunatic could not maintain such an action as the present. The committee having the custody of the person and estate of the idiot or lunatic may,like a bailee, have a special property in the estate committed to their care ; and may, as a bailee can, maintain an action for an injury done to their possession. But farther than this their rights cannot be admitted to extend ; and upon no known principle of the common law can a person maintain an action upon a deed or other instrument of which he has the possession as bailee. The law, out of compassion to his infirmities, guards with peculiar care the interests of the idiot or lunatic, but it does not divest him of his rights. He is capable, notwithstanding the commission of idiocy or lunacy, not only of holding property, but of acquiring it, either by descent or purchase ; and where the law gives the right of property, it gives as an inseparable concomitant the right of action.

But a recurrence to general principles is not necessary to enable us to decide the point made in this case. It has been settled for ages. By an uniform and uninterrupted current of authorities, from the time of Fitz-herbert to the present period, it has been established that an idiot or lunatic may sue and be sued—F. N. B. 63 G—Co. Lit. 135 b— Beverley’s case, 4 Rep. 124 b—Dennis vs Dennis, 2 Saund. 333, 334, n 4—3 Bac. Abr. 541—1 Tidd’s Prac. 63.

In these authorities it will be seen a distinction is taken in the mode of conducting a suit or defence, between the case of an idiot and that of a lunatic. Where an idiot sues, or is sued, it is held that he must appear in his proper person, and any one who prays to be admitted, as his friend, to prosecute, or who can make a better defence, shall be admitted to prosecute or defend for him. But a lunatic, or one who becomes non compos mentis, must appear by guardian, if within age, and by attorney, if he be of full age.

It is clear, therefore, that the committee in this case had no right to bring the action, and that the judgment against them cannot be a bar to an action brought by the lunatic. — —-J udgment affirmed.  