
    OCTOBER TERM, 1867.
    Dorsheimer vs. Roorback.
    1. Idiots and lunatics must sue in equity, by tbeir committees or guardians ; in this state, by their guardians.
    2. A bill filed in the name of an idiot by a volunteer, styling himself her next friend, not appointed her guardian upon inquisition found, nor authorized by the court to file the bill as her next friend, will be dismissed on motion of the defendant.
    This was a motion on part of the defendant to order the bill to be taken from the files, on the ground that the complainant was an idiot, and the bill was filed in her name by one Couse, as her next friend, he not having been appointed her guardian upon inquisition found, or been authorized by this court in this case to file the bill as her next friend.
    
      Mr. McCarter, in support of the motion, cited — .
    2 Barb. Chan. Pr. 224; Mitford Pl. 187; Shelford on Inm. 
      395 — 6; 1 Daniell’s Chan. Pr. 107; Story’s Eq. Pl., § 64 and notes; Stock on the Law of Non Compotes Mentis 33-4.
    
      Mr. Linn, contra.
   The Chancellor.

The motion.is made by the defendant, and not on part of the idiot, or any one in her behalf. Bat in this case, where it is alleged in the bill that complainant is an idiot a nativitate, and unable to manage her affairs, and sues by a person calling himself her next friend, without any appointment, if the proceeding is not according to law, and not binding on the idiot, the defendant must make this motion to protect himself from being obliged to defend a suit brought without authority.

Idiots and lunatics may sue at law by next friend, to be appointed by the court; but in equity, must sue by the committee or guardian of their estates duly appointed. When the idiocy or lunacy is not partial, and, in all cases, when it has been found on an inquisition, a court of equity will not allow a suit to be brought by an idiot or lunatic in his own name, or that of a next friend, nominated by himself, or appointed by the court; his guardian or committee must join in the suit. When a person is only partially incapable, as one merely deaf and dumb, the court will appoint a next friend to be joined with him in the suit, and to conduct it for him.

The authorities all agree that idiots and lunatics must sue in equity, by their committees or guardians. In this state, the persons to whom the estates of idiots and lunatics are committed upon inquisition found, are styled their guardians; in many of the other states, and in England, they are called their committees.

Shelford on Lunatics 415, says: “Idiots and lunatics must sue in courts of equity by their committees.” In Story’s Eq. Pl., § 64; 1 Daniell’s Chan. Pr. (3d ed.) 79; Stock on Non Compotes Mentis 33; Mitford Eq. Pl. 29, and 2 Barb. Chan. Pr. 224, the same rule is laid down; and it is further stated by some of these authorities, that a suit ought not to be brought, even by the committee, without the direction of the court, upon an inquiry made, whether it is for the benefit of the idiot or lunatic. I find no case or authority in which it is held that they may sue by a next friend, either a volunteer or appointed for the purpose.

The only semblance of authority found, is the passage in Shelford 416, and copied in 1 Daniell's Ch. Pr. 81: “If a person exhibiting a bill, appear upon the face of it to be either an idiot or a lunatic, and no next friend or committee is named in the bill, the defendant may demur.” Daniell cites Fuller v. Lance, 1 Ch. Cas. 19, which has nothing in it on this point. Shelford, cites Mitford on Pl. 153, which says : “ If an infant or a married woman, an idiot or a lunatic, appear to be such on the face of the bill, and no next friend or committee is named, the defendant may demur.”

Lord Eedesdale evidently intends to refer singula singulis, and does not mean to imply that a next friend is proper for an idiot or lunatic, any more than that a committee is necessary for an, infant or feme covert. This passage has been adopted by the other two writers, without noticing that the words next friend were not applicable to the subject of which they were then treating — idiots and lunatics.

The rule is a wise one. It should not be permitted that any volunteer should, by styling himself the next friend of an idiot, bring a suit for him, and lose or jeopard his rights by an action brought inopportunely, and it may be, prosecuted without skill or honesty. The idiot would have no security for the amount recovered by such next friend, and the defendant could not pay him, or settle with him, safely.

The motion to take the bill from the files must be granted.  