
    GEORGE LANG vs. JAMES WHIDDEN.
    If an idiot be under guardianship, a suit may be instituted by the guardian in the name of his ward, without any mention of the guardian; and the suit will he sustained, unless advantage be taken of the defect before pleading the general issue. In such a case, the idiot, by his guardian, may prove, that a deed, purporting to be executed by him, was signed at a time when his faculties were so feeble as to unfit him for the transaction of business; in tins way he may stultify himself and avoid his deed.
    The form of suing and defending, when the parties are idiots.
    This was a writ of entry, in which the demandant counted upon his own seisin of certain parcels of land in Greenland, and upon a disseisin by the tenant.
    At the trial here, February term, 1821, under the general issue, the demandant, by his guardian, J. Berry, offered evidence, that in A.D. 1796, the demandant owned and occupied the premises in dispute. The tenant then produced a deed of the premises to himself from the demandant; the validity of which was contested by the demandant on the ground that at the time it was signed, the demandant was non compos mentis. The tenant objected to the competency of such evidence to avoid the deed, and also insisted, that this action coaid not be sustained in the name of a person non compos, unless it appeared in the writ to be prosecuted by his guardian. But these objections being overruled, the jury found a verdict for the demandant, which ivas taken, subject to the opinion of the court upon the whole case.
    (1) Mitf. PI. S5. — 3 Pierre Wms. 111.
    (2) Finch 135. —4 Brow. Par. C. 659.
    (3) I Dickens 233. — 1 Chan. Ca. 153,
    
      Cults and Sullivan, for the demandant.
    
      Bartlett and Mason, for the.tenant..
   Woodbury,-J.

The form, in which suds arc to be instituted, and defended, when the parties are idiots or lunatics, does not seem to bo very well settled in the books. In Co. Litt, 135, b., Coke says, “ the suit must be in- their name, but “ it shall be followed by others. And note, that when • an “ idiot doth sue or defend, he shall not appear by guardian “ of prodiein amy, or attorney, but he shall be ever in per- “ son; but an. infant or a minor shall sue by prodiein amy, “ and defend by guardian.” Fitz. natura brevium 27, G.— 2 Inst. 261.

But in other books this rule is said not to extend to lunatics as contra distinguished from idiots; because lunatics may recover their senses, again enjoy their estates, and therefore be tempted to pretend lunacy for the purpose of gain. 1 Chan. Ca. 113, 153.—Highmore on Lunacy 85.— Bac. Ab. Idiots and Lunatics,’’ G.— 4 Coke 124.

In some cases,it is said, that lunatics also shall not appear by guardian, whenever the consequence of the suit may be to enforce his agreements. And in other cases it is said to be customary, as to both idiots and lunatics, for chancery to appoint a committee to defend their suits, or a guardian;(1) and that the attorney general, considering them under the peculiar protection of the crown, frequently exhibits information in their behalf.(2) While in respect to lunatics, it is ebe-where said, that they may sue as well as defend by their com*it.te€Si(3) But it would seem from Thorn vs. Coward, (2 Sid. 124,) that the suit must still be in the name of the lunatic. ■ •

Wc are inclined to think, that in tins state, where neither a court of chancery nor a- king exists to superintend, through committees and the attorney general, the concerns of those non compotes, that this duty is devolved altogether upon their guardians;, and that, in all kinds of suits, and whether the parties in interest be technically idiots or lunatics, their Dames must appear as the parties on the record. 4 Mass. Rep. 436.—7 ditto 96, Winslow vs. Winslow.14 Mass. Rep. 207, Leighton’s case.

But whether the suit shall then be “ followed,” as Colee terms it,by the guardian,without a previous entry of the guardian’s name in the writ or on the record, does not seem very clear from the adjudged cases. On principle, it would appear proper, and such has been the usage here, to institute actions in the name of the ward, adding in the writ, “by his guar- “ diaa, A. B.” and then the defendant will have greater responsibility for cost and the court will have assurance, that the action is not commenced without due advice. 16 Mass. Rep. 348, Somesby Loud, his guardian, vs. Skinner.

So when the idiocy of the defendant is known, the practice has been to stay proceedings till the guardian is--notified to appear, anil if he chooses to defend, he should enter his, name on the record for that purpose. Mitf. Pl. 94.— Highmore on Lun. 90, 86.

In the following cases the suits were either instituted or defended, in the name of the idiot and by the guardian ; but it does not appear, that the name of the guardian was entered on the record. 4 Mass. Rep. 433, Brown vs. Chase.—3 Day's Rep. 90, Webster vs. Woodward.15 John. Rep. 503, Rice vs. Peat.— 2 Stra. 1104, Yates vs. Baen.—2 Vent. 198. In these cases, the defence was by attorneys, without any guardian. 7 Mass. Rep. 474, Broadstreet vs. Broadstreet, 18 John. 134, Faulkner vs. M'Lure et al.

We are satisfied, however, that it is bettter practice to insert the name of the guardian of theplainliff in the writ,in the manner before named; yet an omission to .do it cannot be taken advantage of, after pleading the general issue. When taken advantage of, it is by a motion addressed to the discretion of the court, to protect the defendant against cost ané vexatious suits in the name ot idiots, which protection is not needed in the present case; or it is by an objection merely in disability of the plaintiff, and which could be pleaded only in abatement. 3 D. & E. 631, Miller vs. Milnes.-1 Chitt. Pl. 13, 14.

In respect to the other point in the case, the objection against evidence of idiocy to avoid a deed, seems to have partaken more of form, than substance. It was never contended, that the deed of an Idiot was binding in itself; but only that it could not be avoided in any suit where the idiot was a party; no man is permitted to “ stultify himself“ no man of full age shall be received in any plea to disable his own person,” &c. Litt. sec. 405.—4 Coke 123.—Pow. Con. 20, 14— 2 Bl. C. 291.—3 Mod. 310.—Ld. Ray. 315, Thompson vs. Leach. Many of the reasons for this rule are exceedingly quaint and sophistical; and when the same authorities admit, that the deed of an idiot may be avoided by a proceeding in chancery in the name of the king, or by the heirs of the idiot, or by third persons, who may be interested, it is unnecessary to examine at length the fallacy of those reasons. Cro. El. 308, 628.—8 Coke 270—3 Atk. 270.—3 Pierre Wms. 105.

Indeed, many cases appear at common law, where a person, once lunatic, has, on his recovery to reason, been allowed to avoid his former deeds. Register Brev. 228.—Fitz. N. B. 466.—Britton Ch. 28.—15 John. Rep. 503, Rice vs. Reat.—Strange 1104, Yates vs. Bean.—2 Vent. 198.—Bull. N. P. 172.

Other cases exist, W'here similar evidence has been admitted, though the incapacity still continued, and the suit was in the name of the non compos. 3 Day 90, Webster vs. Woodward.—Highmore on Lun. 88.—3 Mod. 310.—1 Vern. 198.

The rule of the civil law was the same. And under our system of laws, and our practice to require the guardian to conduct the suit, such evidence, in the cases last mentioned, can work injustice to nobody, and is necessary for the effectual protection of a most helpless portion of the human race.

Judgment on the verdict  