#### Robert M'Creight *v.*David Aiken.

The old rule was,-that a party could not stultify himself:-but it is now subject'to many modifications, and it may now generally be stated that if a party sought'to be charged with a contract, can show that he was so devoid of understanding as to be *utterly*incapable of understanding it, he is not bound by it.

Proceedings in the court of equity, establishing the lunacy of the plaintiff, are admissible to prove the lunacy of the plaintiff, in an action at law by him against a third person not a party to the proceedings.

In chancery, the rule of practice is uniform, that where the committee of a *lunatic*sue for any thing in the right of the lunatic, the committee as well as the lunatic must be made parties. In suits at law, the rule is otherwise. There, the action must be brought in the name of the lunatic *alone,*if of full age; and if under age, by guardian. So, in the case of a *lunatic defendant,*if he be within age, he must appear by *guardian;*and if of full age, by *attorney.*

*Before O ’NEALL,*/., *at Fairfield, Fall Term,*1838.

This was an action of trover, for the conversion of a great many articles of property; but the • case was at last narrowed down to a gig, of the value of #45. The plaintiff was clearly the owner of that, and unless divested by- the defence of the defendant, was entitled to recover. On'the 18th of October, 1834, the plaintiff was found to be a lunatic, and fróm that time forward *57was in the charge of a committee. To establish these facts, the inquisition and proceedings in chancery were admitted in evidence.

In 1835, the plaintiff and his wife removed, against the wishes of the committee, from the plantation of the plaintiff to Winnsborough, and rented a house from the defendant, at the rent of #65. During the year 1835, the plaintiff’s committee was often at the house rented by the plaintiff and his wife ; and on one occasion, said to Mrs. M’Creight, if he had known of her intention to remove, that he would have aided her. At the end of the year, the defendant issued a distress warrant, and under that sold the gig for the rent in arrear, and bought -it himself.

His honor, the presiding judge, thought, and so instructed the jury, that the plaintiff being a lunatic at the time of his removal to the defendant’s house, apd so continuing during the time, was not liable to payment; ‘ unless his committee had assented to the contract. This last matter was left distinctly to the jury. They found for the plaintiff, #45, the value of the gig.

The defendant appeals, and moves the court for a new trial, on the annexed grounds: 1. Because, inasmuch as the plaintiff sued in his own name and not by his committee, the court should not have permitted the verdict of the jury of inquest finding the. plaintiff a lunatic, to be given in evidence on the trial of the case, to establish the lunacy of the plaintiff. 2. Because, it was substantially established that the plaintiff rented the house from defendant for the year 1835, and was to give him #65, for the rent of said year; apd that the gig, for the value of which the jury found a verdict against defendant, was sold under a distress warrant, in satisfaction of said rent. 3. Because, the committee of said plaintiff, John R. M’Creight, well knew the plaintiff had rented the house from defendant; frequently visited the plaintiff during the year he resided in it, and gave no notice to the defendant of any objection to the contract between plaintiff and defendant respecting plaintiff’s occupancy of said house; but rather, on the contrary, led the defendant to believe he was perfectly 'satisfied with the course pursued by the plaintiff.

Curia, per O’Neall, J.

In answering the grounds of appeal, *58I will reverse their order, and begin with the last first. It presents a naked question of fact, in answering which, it is supposed, the jury have erred. The facts on which the defendant relies, to show the error, were before the jury, and when compared with the fact that the committee opposed the plaintiff’s removal from his own plantation to the defendant’s house, were certainly not enough to establish conclusively the fact of assent on the part of the committee, to the renting of the defendant’s house. No one can say that the jury were wrong in saying he did not assent. 2. There is no doubt, if the plaintiff had been *compos mentis,*that the defendant’s second ground must have defeated the case: but it was too clear to be doubted that he was not, and hence, according to my view of the law, the plaintiff was incapable to contract for rent, and his contract being void, the sale of the gig by distress was illegal, and did not change the right of property. The old rule was, that a party could not stultify himself; but it is now subject to many modifications; and it may now generally be stated, that if a party sought to be charged with a contract can show, that he was so devoid of understanding, as to be *utterly*incapable of understanding it, he is not bound by it. Let us test that rule by this case : — The plaintiff sues for a chattel admitted once to belong to him, and the defendant undertakes to show he has been legally divested of his title to it. To do so, he must prove that the plaintiff rented the house from him: this depends upon a contract. To make a contract, it must be the act of two minds ; but if one of the parties have no mind at all — be a lunatic, or *non compos mentis*— there is only one mind, and of course no contract. The truth of the rule is thus proved by the facts of this case; and in proving it by them, it follows that the rule must govern them, and thus, the predicate of the defendant’s defence— his contract for rent being destroyed, his whole defence falls with it.

The 1st ground contends, that the proceedings in equity, establishing the plaintiff’s lunacy, were not admissible in evidence: but the case of John R. M'Creight v. David Aiken, decided here, December, 1836, shows that they are admissible between parties, other than the lunatic. It would seem to follow, that when he *59was before the court, they would be much more clearly admissible. But under this ground, the defendant’s counsel, with his usual tact and ingenuity, contended, that if the committee were not joined with the lunatic, his suit could not be maintained. It is enough to say, that if there was any thing in the objection, it could not avail the defendant here, inasmuch as no such objection was made on the circuit, nor is taken by the grounds of appeal. But I think the action was properly brought, and that the committee need not be joined. All the confusion has arisen from confounding a rule of practice in chancery with one at law. In Tucker v. Lance, Term Hill. 14 and 15, car. 11, in Canc., (Cases in Chancery, 19,) it is stated in a note, that when the committee of a lunatic sue for any thing in the right of a lunatic, in such a case, the committee as well as the lunatic are made parties. This rule is uniform in chancery, and all the proceedings in that court are in conformity to it. But, at law, where a person of full age sues, he sues in his own name. The committee of a lunatic derive their authority generally from chancery, and hence, at law, are not necessary parties. It is, however, unnecessary to reason about the matter. In Cocks v. Darson, Hobart. 215, the very point was ruled. “ Cocks brought an action of trespass, of trover and conversion of beans against Darson ; and coming to trial at the assizes upon not guilty, because it was a small cause, *the judge took not the jury”*but heard the facts, and decided the case. It appeared that the land on which the beans grew was the land of a lunatic and copyhold, and that the lord had granted the custody of the land to one by whose leave and assent the plaintiff did sow the land. It was held, that the action must be in the name of the lunatic, as no interest in the lunatic’s land passed by the commitment of the land to the custody of him under whom the plaintiff entered and sowed. The point ruled in that case, that the action, when the right of a lunatic is concerned, must at law be in his own name, has ever since been conceded to be law; and no precedent can be found of the joinder of the committee. The books of pleading are silent as to any such requisite, on the part of the plaintiff. In the case of a lunatic defendant, if he be within age, he must appear by guardian; and by attorney, if of full age: 1 C. P. 529. *60The same rule in substance holds when he is the plaintiff — he must' sue by guardian when under age — when of full age, he sues in his own name. — The motion is dismissed.

*Clarke*and *M’Dowall,*for the motion.

Gantt, Evans, Richardson, Earle, and Butler, Justices, concurred.