
    JOHN R. M’CREIGHT AND ROBERT M’CREIGHT, TRUSTEES, VS. DAVID AIKEN.
    An action brought bn the paft of a non compos mentis, must be in his name, and notin that of the committee; but the committee is a necessary party.
    
      Before Mr. Justice Butler, at Fairfield, Spring Term, 1837.
    Robert McCreight had been declared a lunatic by proceedings in chancery, and the plaintiffs (his sons,) were appointed his committee. They ” brought this action againt the defendant, for certain articles, which it is alledged he has converted to his own use, and which belonged to, and were taken from, the premises of the lunatic.
    The presiding judge in his report, says ¡—
    “ The action is brought in the name of tifo plaintiffs, as trustees of the lunatic, I held that it should have been brought in the name of the lunatic, by his trustees as guardians. The legal relation of a committee to a lunatic, is analogous to that of guardian to his ward. For any trespass to the person or property of a minor, an action must be brought in his name by his guardians. And why should not an action be brought in the same way for a trespass on the person or property of a lunatic 1 Such a person has a legal existence ; that is, under the protection of the law, and he cart take and hold property, either real or personal.”
    The plaintiffs took a non-suit, with leave to move the Court of Appeals to set it aside, And this motion they now make, on the following grounds :
    1. Because the action was properly brought íd their names, as trustees of Robert McCreight, a lunatic.
    2. Because they had a right to bring the action on their actual or constructive possession of the chattels of the lunatic.
    
      McCall Hammond, for the motion.
   Curiaj per

Butler, J.

The only question in this caséis, should this action have been brought in the name of the lunatic or his committee. As soon as the proposition is admitted that a non compos may take, hold and enjoy property, either real or personal, it would seem to follow that an action should be brought in his name to maintain the title, or to recover' damage's for a wrong done to the property itself.

Collinson, vol. 1, 340, thus lays down the law : “ An action brought on the part of a non compos, must be in his natne, and not in that of the committee,”

In an action of trespass, it was adjudged necessary for the action to be brought in the name of the lunatic, in whom all the estate, interest and power of suits continued; and not in the name of the committee, who had no interest in the property, but was a mere bailiff or servant for the lunatic’s benefit. The committee, however, is a necessary party to an action or suit brought or instituted on the behalf of a non compos. This court are therefore of opinion, that the non-suit below was properly ordered in this case.

The motion of the plaintiffs to set aside the non-suit, is refused.

Gantt, Richardson, EvAns, and Earle, JJ, concurred.  