Gorham v. Gorham. mencement of a bill where the committee and the lunatic both join as complainants, instead of filing a bill in the name of the lunatic by his committee. (Willis' Eq. Pl. 5.) Shelford also says, that idiots and lunatics must sue in courts of equity by the committees of their estates, and in such suits the committee as well as the lunatic should be parties; and if a lunatic is not named a party in a bill or information in his behalf, it is a good cause of demurrer. (Shelf. on Lun. 415. See also Stock's Law of Non Com. Ment. 33, and Calv. on Parties, 303.) The late Judge Story, after stating the principles of the English law on the subject, and the authority of the great seal to appoint committees of idiots and lunatics, lays down the same rules as applicable to courts of equity in this country. (Story's Eq. Pl. 65.) When it is said, by these writers, that idiots and lunatics must sue by their committees, it is not meant that the suit is to be brought by the committee in his own name, merely describing himself as the committee of the lunatic, as has been erroneously supposed by the court of one of our sister states. But they mean that the suit should be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming them; as in the case of an infant suing by his next friend. Or that the suit should be prosecuted in the names of the lunatic and of his committee, as in the precedent in Willis' Pleadings, before referred to. In the case under consideration, the bill is filed by the committee in their own names, and they only describe themselves as the committee of the habitual drunkard. This, therefore, is a bill by the committee alone; and is not the bill of the habitual drunkard by his committee. And a decree in favor of the complainants, in this suit, would not be a decree in favor of the habitual drunkard. (See Southerland v. Goff, 5 Port. Alab. Rep. 508.) I think, therefore, the bill was defective in form, even as far as it sought an account and payment of rents and profits which had become a part of the habitual drunkard's personal estate, at the commencement of this suit. And if the objection that Gorham v. Gorham. he was not made a party to the suit with his committee, had been stated as a special cause of demurrer, I think the demurrer to the whole bill ought to have been sustained on that ground. But the statements in the bill as to the rights of the habitual drunkard, and the prayers for relief, except the general prayer, are in the proper form to enable the court to make a final decree for the payment of the habitual drunkard's share of the rents and profits of the premises to his committee, for his use and benefit; so as to protect the defendant from a second recovery for the same matter, in case the habitual drunkard should die or be restored to the possession and control of his property. For that reason, a general demurrer to the whole bill, for want of equity, was not well taken; as the objection was merely formal as to the part of the bill which sought for an account and payment of rents and profits. And the habitual drunkard, by his committee, had a right to file a bill in this court against the defendant, as his co-tenant in common, for such account and payment, independent of the claim for a partition of the premises. The reason why the lunatic himself should be a party to a suit for the recovery of property claimed to belong to him is, that, in case the defendant should succeed in his defence, he may not be subjected to a second litigation for the same matter, by the lunatic, should he be restored to the possession and control of his property; or by the representatives of the lunatic after his death. For a suit prosecuted in the name of the committee alone, who are the mere bailiffs of the crown in England, and of the court of chancery in this state, would not estop the lunatic, or his legal representatives, from litigating the same matter over again, after his restoration to his reason, or upon his death. That is a right which the defendant may waive, by neglecting to make the objection by demurrer, or answer, that the lunatic himself is not made a party complainant in the suit. Again; in this state the court of chancery, during the continuance of the lunacy, has, by the statute, the whole control of the personal estate and choses in action of the lunatic. And it can transfer the title to the same, by directing a sale by the Gorham v. Gorham. committee; and may direct the committee to release any right of action in relation thereto, as may be equitable and just. So that when a matter relating to the personal estate of the lunatic, has been fairly litigated by the committee in this court, and decided against them, the court may protect the defendant against a new suit, by the lunatic or his representatives, although the lunatic is not a formal party to the suit brought by his committee; by directing the committee to transfer the property which was in litigation, to the defendant, or to release the defendant from any further claim on account thereof. The objection of the non-joinder of the lunatic, as a party complainant, with his committee in such a suit, appears, therefore, to be a matter of form and not of substance. And it is not such an objection as can avail the defendant upon a general demurrer for want of equity only. For if the objection which is urged upon this appeal, had been stated in the demurrer, it might have been obviated by a slight amendment of the bill. An objection for want of necessary parties might have been made ore tenus, upon payment of the costs of the demurrer upon the record; but that does not appear to have been done in this case. And it is now wholly immaterial to the defendant whether the suit is prosecuted in the name of the habitual drunkard, by his committee, or by the committee of his estate in their own names only, so far as the rents and profits of the premises are concerned. For, since this appeal the legislature has authorized the committee of a lunatic or an habitual drunkard to sue in their own names, for any debt, claim, or demand, transferred to them, or to the possession and control of which they are entitled as such committee. (Laws of 1845, pp. 91, 92.) But the question whether a suit can be commenced in the name of the committee alone for the recovery of real estate, or to establish the title to the same, or whether a suit in partition can be instituted in the name of such committee, without joining the lunatic or habitual drunkard as a party, is wholly unaffected by the act of 1845. If the committee have no such right, the objection that the habitual drunkard is not made a party, is a matter of substance, in the Gorham v. Gorham. present case; so far as the bill seeks a partition of the real estate owned by him, and by the defendant, as tenants in common. And, upon a careful examination of the law, as it existed previous to the revolution, and the various statutory provisions on the subject of idiots, lunatics, &c. in this state, I am satisfied that a decree in partition, to which the habitual drunkard is not a party, will not transfer the legal title to his undivided share of that portion of the premises which may be set off to the defendant in severalty. In England, the care and custody of idiots and lunatics and their estates, by the common law as well as by the statutes, (17 Edw. 2, ch. 9, 10,) belonged to the king as parens patria. (Beverly's case, 4 Coke, 127.) And the power of the crown in this respect was exercised by the keeper of the great seal, under special warrants from the crown from time to time, and did not belong to the court of chancery as such. But the statute 17th Edward 2, ch. 10, did not authorize the sale of the lands or tenements of a lunatic. On the contrary, it directed that the same should be safely kept, and not aliened. (1 Evans' Stat. 473. Ex parte Dikes, 8 Ves. Rep. 79.) In the case of a lunatic, therefore, the great seal, acting as the representative of the crown, under the sign manual, could only grant the care and custody of the lunatic and his estate during pleasure. And upon the restoration of the lunatic to his reason, he was entitled to have his lands restored to him with an unimpaired title. Or, if he died before the restoration of his reason, such lands went immediately to his heir, unaffected by any leases made in the meantime. Even in the case of idiots, although the king had a beneficial interest in the surplus rents and profits of the real estate, during the life of the idiot, beyond what was necessary for his support, the statute 17 Edward 2, ch. 9, did not allow the alienation of the estate beyond the life of the idiot; but expressly directed that after his death the estate should be surrendered to his heirs; so that they should not be disinherited. Such was the state of the English law in regard to the real estate of idiots and lunatics at the time of the settlement of this country; and it became a part of the Gorham v. Gorham. common law of the colony of New-York. Several statutes were subsequently passed in relation to the surrender and renewal of leases of the estates of lunatics, during the reigns of George the second and his successor. But if they were ever in force here, they were repealed, after the close of the revolution, by the general law on that subject. Our statute of February, 1788, (2 Greenl. Laws, 25,) substituted the chancellor for the crown in relation to the persons and estates of idiots and lunatics; and expressly prohibited the alienation of the lands or tenements of either. In the revision of 1801 the language of the act was somewhat varied; for the committee was directed, in case the personal estate of the idiot or lunatic was not sufficient to pay his debts, or where such personal estate and the income of the real was not sufficient for his maintenance and that of his family, to apply to the chancellor, by petition, for a sale of so much of the real estate as should be necessary for that purpose. The chancellor was also authorized to decree a specific performance of contracts made by lunatics before their lunacy, and to authorize the committee of an idiot or lunatic to agree to a partition of lands held in common with other persons. But the sixth section of the revised act of March, 1801, (1 R. L. of 1813, p. 148.) expressly provided that the real estate of an idiot or lunatic should not be aliened or disposed of, otherwise than as directed by that The same provisions, in substance, are contained in the title of the revised statutes relative to the custody and disposition of the estates of idiots, lunatics. persons of unsound mind, and drunkards. (2 R. S. 52.) The twenty-third section of that title prohibits the leasing of the real estate for more than five years; and declares that it shall not be mortgaged, aliened, or disposed of, otherwise than as directed in that title. act. It was under the revised act of 1801 that the case of The Executors of Brasher v. Van Cortlandt, (2 John. Ch. Rep. 242, 400,) arose and was decided by the late Chancellor Kent. When the case first came before him, I think he very correctly decided that it was not necessary to make the lunatic a party to a suit against his committee to compel them to sell his real |