M'Creight v. Aiken

21 S.C.L. 337

• Court: Court of Appeals of South Carolina
• Decided: July 1, 1837
• Status: Published

Opinion

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.