
    Rodgers vs. Ellison.
    Idiot and Lcnatic. How to be sued. An action at law cannot be sustained against a person in the character of guardian of a lanatic, without joining the non compos in the action as a party defendant. 2 Saund. 333, n 4.
    Same. Pleading — misjoinder. If a count against a party as guardian of a lunatic* be joined with one against him in his own right, it is a misjoinder, and may be ex* cepted to by demurrer, or in arrest of judgment.
    Samuel Smith, who had a considerable estate left him by his deceased father, which had come into the hands of his 'brother Henry Smith, was committed to the jail of Cocke county as a dangerous lunatic, according to the act of 1797, xj 41, § 2, by the order of three justices, on the 27th of .June, 1833, where he remained till the 26th of November following, being one hundred and fifty-four days. His board, washing, &c. during his confinement, amounted to $ 65 12J cents. Ellison, the intestate of the defendant in error, was jailer, and this action of assumpsit was brought by him, ¿in his life time, in Cocke county court, on the 18th of Jan-nary, 1834, against Rodgers, who was guardian of the lunatic, to recover said sum of $65 12£ cents.
    The declaration, as filed in the county court, contained three counts, all of them against Rodgers as guardian. He pleaded, 1 — non assumpsit, upon which plea issue was joined; 2 — That he had not, at the commencement of the action, nor at any other time, any of the estate of the lunatic in his hands, to which there was a demurrer and joinder. The court sustained the demurrer; and on the trial of the issue, the plaintiff had a verdict and judgment for the amount of his demand.
    Rodgers appealed to the circuit court of Cocke, where the plaintiff was allowed to file an additional count, against the guardian in his own right averring his promise to pay, &c., in consideration of forbearance. The case was tried at January term, 1838, before his Honor Judge Anderson, of the 12th circuit, and a jury of Cocke. The defendant in error obtained a verdict. Rodgers moved for a new trial, which his honor refused. He filed reasons in arrest of judgment, 1. That the action was* misconceived, and could not be maintained against him as guardian, 2. That there is a misjoinder of counts in the declaration, 3. That the verdict is wholly unauthorised by law. These were overruled, and his Honor gave judgment, that the plaintiff below recover, &c. The defendant appealed in error.
    R. J. McKinney, for the plaintiff in error,
    insisted, 1.That the defendant, as guardian, was not liable to be sued; that if plaintiff had cause of action against any one, which he denied, the suit should have been against Sfnith', not against his guardian, therefore judgment on the demurrer, in the county court, should have been rendered in favor of defendant; that an idiot must sue and defend in person, — a lunatic sues and defends in the same manner as other person's, if of age, by attorney, — if within age, by guardian, 3 Thomas’ Co. Litt. 394, marg.; 2 Sid. R. 112, 355; 3 Bac. Abr. 541; 4 Com. Dig. Idiot and Lunatic; 2 Archbold’s Pr. 164; 2 Law Library, 250, 258, at top.
    2. That the circuit court erred in permitting the fourth count to be filed — it was a misjoinder, and for this the judgment should have been arrested, 1 Chitty’s PI. 200, 206.
    3. That the promise alledged in the fourth count is not supported by the proof; but were it otherwise, upon the facts of this case, it could not avail the plaintiffs. There being no legal cause of action against any one, the promise to pay on forbearance to sue is void; and it was not binding, because the defendant having no effects in his hands, it should have been in writing.
    Arnold, for the defendant in error,
    said that if a lunatic sue, it must be in his own name; and if he be sued, he is to appear by attorney, if of full age, and by guardian if he be under age; otherwise of an idiot, in support of which he cited Co. Lit. 135. b. The committee of a lunatic was relieved against a debt assigned by the lunatic without consideration, by bill in equity without making the lunatic a party. 1 Ch. Ca. 113; 2 John Ch. R. 232; 3 Bac. Ab. Idiot and Lunatic, G.
    He also contended, that there was no misjoinder of counts in the case; that a declaration against an administrator may contain a count against him in his representative capacity, and one against him in his own right, founded as here, on his pro ' nfise to pay.
    June 7.
   Reese, J.

delivered the opinion of the court.

The question raised by the record in this case, and ^discussed at the bar, is whether the- guardian or executor of a lunatic can be sued in an action at law, in that character, without joining in the action, as a party defendant, the lunatic himself? It is well settled in England, that at law the non compos himself must be a party plaintiff when suing, and a party defendant when sued. Upon this question there has never in their courts been any controversy whatever. As to the property of the lunatic, the guardian being but a steward, bailiff, or agent, it does not vest in him, but remains, so far as title is concerned, in the lunatic himself.

The formal service of process, indeed, upon one deprived of his reason, may appear not without some degree of absurdity. But that he should be a party, so that the judgment may be rendered against him, and the execution issue against his estate, involves not only no absurdity, but is very proper and necessary. To render the judgment against the guardian, and issue the execution against his estate, would involve in it not absurdity only, but injustice.

The precedents referred to in chancery cases, and in Johnson’s Chancery reports, where it was held, that the lunatic need not be made a party, are very distinguishable from cases at law.

In England and New York, when the estate of a lunatic is in the custody of the chancery court, a suit in that court against the lunatic, is but a suit against the fund. It is a petition to the chancery court, in whose hands the fund is, to pay the debt out of that fund.

We think our act of assembly, on the subject of lunatics, contains no provisions which can change the course of proceeding at law, as fixed by the common law, so as to dispense with the necessity of instituting the suit against the lunatic himself.

We are also of opinion, that the additional count in the declaration, filed by leave in the circuit court, against, the guardian personally, constitutes a misjoinder. We are of opinion, therefore, upon both these grounds, without adverting to others, that the circuit court erred in not arresting the judgment.

The judgment of the circuit court must be reversed, and judgment given in favor of the plaintiff in error.  