It is presumed, however, that the author of that work when he penned the remarks just quoted, overlooked the provisions in the laws of 1845, p. 91. cap. 112. sec. 2. by which it is enacted that, "receivers, and committees of lunatics and habitual drunkards, appointed by any order or decree of the court of chancery, may 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 receiver or committee, and when ordered or authorized to sell such demands, the purchaser thereof, may sue and recover therefor, in his own name, but shall give such security for costs to the defendant, as the court in which such suit is brought shall direct." It seems that actions to recover real property of idiots, lunatics, &c., must be in the name of such idiot, lunatic, &c., Lane v. Schemerhorn, 1 Hill, 97. Petrie v. Shoemaker, 24 Wend. 85. In equity, idiots and lunatics are by their committees, and where a bill was filed in the name of a person as plaintiff who was in a state of mental incapacity, it was ordered to be taken off the file. Wartnaby v. Wartnaby, 1 Jac. R. 377. As to when the lunatic need and need not be joined as a plaintiff with his committee, see Fuller v. Lance, 1 C. C. 18 n. Att'y-Gen'l v. Woolrich. Ib. 135. Ortley v. Messerve, 7 J. C. R. 139, and it is said that the code "does not apply to persons under mental disability in whose names the committee of their person or estate, prosecute as usual, it is presumed, with or without joining the name of the individuals who are of non sane understanding. Mitf. Eq. pl. by Moulton 31. (n.)

Persons incapable of acting for themselves, though not idiots, or lunatics, or infants. have been permitted to sue by their next friend. Cur. Can. 468 Wyatts, P. R. 272, Sackville v. Ayleworth, 1 Vern. 105. Re Barker, 2 Johns. Ch. C. 232. Malin v. Malin, lb. 238.

Whether it is necessary or proper to make an idiot or lunatic a joint defendant with his committee in suits relating to such idiot or lunatic, is vexata questio. See Brasher's Ex'ors v. Van Cortland, 2 John. Ch. C. 242.

See also notes to sections 114, 115, and 118 of this code.

§ 114. [94.] (Amended.)-Action by married woman.When a married woman is a party, her husband must be joined with her, except that,

1. When the action concerns her separate property, she may sue alone:

2. When the action is between herself and her husband, she may sue or be sued alone:

But where her husband cannot be joined with her, as herein provided, she shall prosecute or defend by her next friend.

The amendment is the addition of the part in italic. Under this section prior to amendment, it was held, that although in an action concerning her separate property, a married woman might sue alone, yet where in such an action the husband was joined as a co-plaintiff, such joinder was no ground for a demurrer. Van Buren v. Cockburn, 2 Code Rep. 63.

And in an action against a husband and wife to foreclose a mortgage and enforce payment of a bond executed by them, to secure the purchase money of premises conveyed to the wife subsequent to April, 1848, held, that there was no misjoinder of parties nor uniting of incompatible causes of action, although the wife was not liable on the bond in case of a deficiency on sale. The bond was void as to the wife, but good as to the husband. The wife was a necessary party because the legal estate was in her, and the husband was a proper party because of his liability on the bond in case of a deficiency on sale-and both were the mortgagors. Conde v. Shepherd, 4 Pr. R. 75. Conde v. Nelson, 2 Code Rep. 58.

The supreme court in the first judicial district, held, that though a married woman might sue alone in respect to her separate property, yet she could sue only by her next friend, who must be a person of sufficient substance to be responsible for costs. Coit v. Coit, 2 Code Rep. 94. 3 Code Rep. 23. 4 Pr. R. 232.

And that it was only in cases of suits for an absolute divorce, where a wife is by statute allowed to sue in her own name, that she can prosecute a suit without a next friend. Ib.

The objection that a married woman has sued in her own name without a next friend, may be taken at any stage of the suit. Ib.

In Forest v. Forest, 3 Code Rep., 254, Edmonds, J., was asked to re-consider the decision in the case of Coit v. Coit, but he refused to do so, and said, that case is the law of this court, and of this case, and held that a next friend was necessary in an action by the wife for a divorce; but in the sixth judicial district, it was held that under this section the wife might bring a suit alone without a next friend, against her husband for a limited divorce, for cruel treatment. Tippel v. Tippel, 3 Code Rep. 40. 4 Pr. R. 346. And the same opinion is said to be entertained by all the justices of the supreme court in the eighth judicial district. Newman v. Newman, 3 Code Rep. 183. And in that case it was said, that in all cases of an action by a wife against her husband, she may sue alone, under this section without a next friend. 1b. The superior court for the city of New-York, also held that a married woman may sue for a limited divorce alone, and without a next friend. Anon. 3 Code Rep. 18. And same case sub nom. Shore v. Shore, 2 Sand. S. C. R. 715.

The amendment appears to aim at settling this vexata questio, and to confirm the views taken by the supreme court in Coit v. Coit, and Forest v. Forest supra. It is supposed, however, that a woman may still sue for an absolute divorce without a next friend. Under the former practice in chancery, in a suit against husband and wife, if no order to answer separately had been obtained, the husband was bound to put in a joint answer for himself and wife, and if without such order the husband put in a separate answer it was irregular, and on motion would be ordered to be taken off the file. Leavett v. Cruger, Paige, 421. Bilton v. Bennett, 4 Sim, 17. Where the husband and wife were sued, the husband on an affidavit that he had no control over his wife, might obtain an order to answer separately. 1 Barb. Ch. Pr. 87. Also, where the wife refused to join with the husband, he might obtain an order to answer separately. Leavett v. Cruger, 1 Paige, 421.

The wife might obtain an order to answer separately in the following cases: where she claimed an interest adverse to her husband-where the husband was a defendant in right of the wife-where she lived separate from him-or, disapproved the defence he intended to make-or, where he was out of the jurisdiction. Anon. 2 Eq. Ca. Abr. 66. 1 Dan. Ch. Pr. 510. 1 Smith, Ch. Pr. 253-so where she denied that she was the wife of the defendant alleged to be her husband. Wyburn v. Blount, 1 Dick. 155; and, under the code, as before, a woman cannot answer separately from her husband without leave of the court, except under special circumstances, as if he be an alien enemy, &c. Newcomb v. Ketelias, 2 Code Rep. 152.

The leave to answer separately, was obtained by motion, on notice, Gary v. Whittingham, 1 Sim. and Stu. 163; and unless leave was obtained, the separate answer of the wife might, on the application of the plaintiff, be ordered off the file. Perine v. Swaine, 1 John. Ch. R. 24. But if the answer were a proper one, it would not be removed from the file on the application of the wife or her executor. Chandos, Duke of v. Talbot, 2 P. W'ms. 371. After an order for the wife to answer separately, she was not bound by the acts of her husband in the suit. Jackson v. Haworth, 1 Sim. and Stu. 161. The order for the wife to answer separately, might be made on application of herself, her husband, or the complainant. 1 Dick. 155. 1 Ves. sen. 383. 1 Smith's, Ch. Pr. 254, n. 1. The separate answer of the wife was evidence against herself. Codrington v. Shelburn Earl of, 2 Dick. 275. Le Neve v. Le Neve, 3 Atk. 648, but not against her husband. 1 Eq. Ca. Abr. 227. 5 Ves. 322. 15 Ves. 159. Anon. 2 Ch. Ca. 39. Cole v. Gray, 2 Vern. 79. There were two cases where before the code, and it is presumed since, a married woman might answer separately without first obtaining an order for the purpose, where the suit was between herself and husband. Ex parte Strangeways, 2 Atk. 478; and where the bill sought relief out of the separate estate of the wife. Ferguson v. Smith, 2 John. Ch. R. 139. 1 Paige 422. 1 Hoff. Ch. Pr. 232.

And by 2 R. S.,340, ss. 4-5, in actions relating to real property, if husband and wife are impleaded, and the husband absent himself and will not defend the wife's right, the wife may apply before judgment, to be allowed to defend without her husband, and if the husband lose by default, any land, which was the right of his wife, the wife, after the death of her husband, may have an action to recover the same, and the judgment

by default against the husband is not to be a bar. It is said to be still necessary to join the wife as a party in cases were the contract, the subject of the action, was made with her before and the action is brought after her marriage. Morse v. Earl, 13 Wend. 271, or, where the cause of action would necessarily survive to her. 18 Johns. R., 443.

A joint answer of husband and wife, had to be sworn to by both. N. Y. Chemical Co. v. Flowers, 6 Paige, 654.

If the husband be a non-resident alien, the wife may sue and be sued as a feme sole. Robinson v. Reynolds, 1 Aiken's (Vermont) R. 174.

Husband and wife ought not to join as plaintiffs in a suit relating to the wife's separate property, but the bill ought to be filed by the wife alone, by her next friend, and the husband be made a defendant: because the husband may have filed the bill in his wife's name, without her knowledge or consent, and may collude with the other parties to the prejudice of the wife, and because the wife being as to her separate estate, entitled to prosecute a suit separately, and a suit by her and her husband, (being regarded as the suit of the husband,) would not prevent her bringing another suit separately. And where a suit has been brought by husband and wife as to her separate property, the court have on demurrer, ordered the name of the husband to be struck out as plaintiff and to be inserted as a defendant. The objection, however, is waived by answer. Wake v. Parker. 1 Keen 59. England v. Downs, 1 Beavan, 96. Owden v. Campbell, 8 Sim. 551. Segel v. Phelps, 7 Sim. 239. Thorp v. Yeates, 1 Y. and C. Ch. C. 438. Davis v. Prout, 7 Beav. 288. Bowers v. Smith, 10 Paige, 201. Dyett v. N. A. Coal Co. 20 Wend. 570. S. C. 7 Paige, 9.

By the revised statutes, a bill for a divorce dissolving the marriage contract may be exhibited by a wife in her own name. A suit to annul a marriage on the ground that one of the parties was under the age of legal consent, may be brought by the parent or guardian entitled to the custody of such minor, or by the next friend of such minor. If on the ground of idiotcy or lunacy, any relative of such idiot, interested to avoid the marriage, may bring suit, or by the next friend of such idiot or lunatic. If on the ground of force or fraud, the suit may be by the wronged party, or the parent or guardian of such party. If on the ground of physical incapacity, by the injured party.

A bill cannot be filed on behalf of a married woman of full age by her next friend, without her consent. Fulton v. Rosevelt, 1 Paige, Ch. R. 178.

§ 115. [95.] Infant to appear by guardian.-When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.

The taking judgment against an infant as for want of answer without appointing a guardian ad litem is an irregularity. Kellog v Klock. 2 Code Rep. 28. and The judgment so taken will be set aside on motion and without imposing terms. Ib. Where a husband of full age, and his wife, an infant, brought a joint action, it was held that no guardian was necessary. Hulbert v. Newell, 4 Pr. R. 93. Although this case was decided since the code went into effect, it may well be doubted if it is any authority as an exponent of this section. The question arose on a motion for costs against an attorney, made under the revised statutes, (2 R. S. 446, s. 2, and 620, s. 1-7.) which use the words "sole plaintiff." And in deciding that case no reference is made to this section of the code. See section 116 of this code and note.

For the practice respecting the persons who may be guardian, and the manner in which they shall be appointed. See section 116 of this code, and rules of the supreme court, rules 55 to 64 both inclusive, in appendix.

Under the former practice in chancery, it was customary for the guardian to put in a mere general answer submitting the rights of the infant to the court. But where the circumstances rendered a special answer necessary the guardian was bound to make it. Knickerbacker v. De Freest, 2 Paige 304, and the court would take care

that the rights of the infant, were not prejudiced by the answer put in. Barrett v. Oliver, 7 Gill and John. 191. The answer was termed the answer of the guardian and not of the infant. Rogers v. Cruger, 7 John. 581, for which reason the infant was not bound by the answer, and might where his interests required it put in a farther answer on coming of age. See, 1 Barb. Ch. Pr. 149, and cases there referred to. An infant may sue by guardian for a legacy. 2 R. S. 52 s. 12, he cannot sue in a justice's court except by guardian, 2 R. S. 164, s. 40. A suit may be commenced on behalf of an infant by his guardian, without the consent of the infant being first obtained, but the court on a suggestion that the suit is not for the benefit of the infant, will order a reference to inquire whether or not the suit is for the benefit of the infant; and if the referee report that the suit is not for the benefit of the infant, the court will order the proceedings to be stayed. Garr v. Drake, 2 Johns. Ch. R. 542; but such inquiry will not be directed on the application of the guardian himself. Jones v. Powell, 2 Meriv. 141. And if two suits are instituted for the same purpose in the name of an infant by different persons as guardians, the court will order an inquiry as to which suit is most for the benefit of the infant, and when that is ascertained will order the proceedings in the other suit to be stayed. Stevens v. Stevens, 6 Madd. 97, the application should be made before judgment. Taylor v. Oldham, 1 Jac. R. 528.

It is moreover a rule that nothing can be taken against an infant by default, nor can his guardian make any admissions which will affect his rights injuriously. 4 Paige 115. These rules all have their foundation in the want of legal capacity in the infant to perform any valid act in the conduct of his defence, upon the grounds of a presumed want of understanding, and therefore a judgment taken against an infant for want of an answer without any appointment of a guardian, is irregular and void, and will be set aside on motion. Kellog v. Klock, 2 Code Rep. 28, and without imposing terms on the defendant. Ib. And the plaintiffs want of knowledge that the defendant is a minor, will not serve to make the judgment regular.

On motion to set aside a judgment for want of an answer taken against an infant without the appointment of a guardian, the motion papers were signed. Capron and Luik, defendant's attorneys, and it was objected that they should have been signed by the infant or guardian or both, and not by attorney, if by attorney, as attorney for the guardian; the infant not being capable to appoint. The objection was overruled on the authority of 11 Wend. 164, 3 Pr. R. 407. Kellog v. Klock, 2 Code Rep. 28.

§ 116. [96.] (Amended.)--Appointment of Guardian.—The guardian shall be appointed as follows:

1. When the infant is plaintiff upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian if he has one, if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant after notice of such application being first given to the general or testamentary guardian of such infant, if he has

one, if he has none, then to the infant himself if over fourteen years of age, or if unde that age, to the person with whom such infant resides.

The amendments are the parts in italic, the word "application" being substituted for petition. The part in italic at the end of subdivision 1, is substituted for these words, "when the petition of some other party to the suit, or of a relative or friend of the infant." The part in italic in subdivision 2 is new. Under this section as under the former practice, it is necessary that the guardian of an infant plaintiff be appointed before the commencement of the action. Hill v. Thacter, 2 Code Rep. 3, 3 Pr. R. 407.

Where such guardian was not appointed until the day of service of the summons and complaint, which were dated and the complaint verified one day previous, held, that the summons was irregular. Ib.

It seems, where a guardian of an infant plaintiff is properly appointed, he may verify the complaint, or it may be done by the attorney. Ib.

Semble, that the provisions of the revised statutes (2 R. S. 446, S. 2,) requiring a responsible person to be appointed next friend of an infant plaintiff, are applicapable to a guardian appointed under the code lb. Where an infant defendant is a married woman it is customary to appoint her husband her guardian, unless he has an interest adverse to her, and he is competent in other respects. Barb. Ch. Pr. 85. See, note to section 115 of this code, and court of appeals rules in appendix; Rule 4.

§ 117. [97.] Who to be plaintiffs.-All persons having an interest in the subject of the action and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

The word "may" in this section will be construed must. Monell's Prac. P. 13 We do not however subscribe to the correctness of this interpretation.

There is a class of cases where it is not proper to join persons as plaintiffs who have a common interest in the subject-matter of the suit. In actions that were formerly denominated ex delicts-several persons cannot sue jointly, each must bring a separate action, except in cases of slander, of title, or of partners in respect of their joint trade. 1 Chitty, Pl. 74.

§ 118. [98.] Who to be defendant.-Any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

When the plaintiff in a suit in partition makes persons defendants who have no interest in the subject-matter of the suit, the costs of such defendants will not be charged upon the fund or against their co-defendants, but must be paid by the plaintiff personally. Hammersley v. Hammersly, 7 Leg. Obs. 127.

Unless such unnecessary parties are brought in at the request of the other defendants. Ib.

The assignee of a mortgage may be made a defendant in an action to set aside the mortgage as usurious. Niles v. Randell, 2 Code Rep. 31.

In an action against a husband and wife to foreclose a mortgage, and enforce payment of a bond executed by them to secure the purchase money of premises conveyed to the wife subsequent to April, 1848, (Laws of 1848, p. 307,) held, that there was no misjoinder of parties nor uniting of incompatible causes of action, although the wife was not liable on the bond in case of a deficiency on sale. The bond was void as to the wife, but good as to the husband. The wife was a necessary party because the legal estate was in her, and the husband was a proper party because of his liability on the bond in case of a deficiency on sale-and both were

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