The plaintiff sued defendant by summons personally served, whereupon Sarah J. Harrison, appearing as defendant’s guardian, joined with him in pleading in abatement of the service that at the time of its occurrence he was under guardianship as an insane person. The plaintiff demurred, but the court sustained the plea and quashed both service and process.
The sole question raised is whether the existence of the guardianship took away the defendant’s legal capacity to be served with the summons, and we think it did not. He continued liable to suits and liable to notification of their institution. Sternbergh v. Schoolcraft 2 Barb. 153, and authorities cited; Crippen v. Culver 13 Barb. 424. See, also, Bush v. Pettibone 4 Comst. 300; Ibbotson v. Lord Galway 6 Term 133; Cock v. Bell 13 East 355.
The judgment is reversed with costs and the plaintiff will have judgment on the demurrer, that the plea is overruled, and the cause will be remanded to be proceeded in according to law.