v. Palmer, 9 Cal. 616. But where his interests require it, the court will appoint, even though the minor may have a general guardian: Gronfier v. Puymirol, 19 Cal. 629. The provisions of secs. 9 and 10 of the Cal. Civil Pr. Act (Code, 372–3), relative to the appointment of guardians ad litem, where infants are parties, only apply where there is no general guardian, or where he does not act: Id.; approved in Fox v. Minor, 32 Cal. 119; Spear v. Ward, 20 Id. 676.

3. Appointment must be Alleged.-Where the plaintiff is an infant suing by guardian, the complaint shall contain an allegation of the appointment of the guardian, and it should be stated in a traversable form: Hulbert V. Young, 13 How. Pr. 414; Grantman v. Thrall, 44 Barb. 173; see, also, 8 Cow. 235. Where a complaint was entitled "J. G., by J. G. his Guardian, v. G. T.," and commenced thus: "The plaintiff, complaining, states," etc., but contained no allegation that the plaintiff was an infant, under the age of twenty-one years, or that the guardian was appointed by any court: Held, bad on demurrer, for the reason that while it showed that the plaintiff appeared by guardian, it did not show that the guardian was duly appointed, so as to authorize such appearance: 8 Cow. 235; 13 How. Pr. 413; Grantman v. Thrall, 44 Barb. 173.

4. Appointment, how Alleged.-Appointment must be alleged with certainty as to time, place, and power of the appointment: Stanley v. Chappel, 8 Cow. 235; Hulbert v. Young, 13 How. Pr. 413.

5. Disaffirmance of Deed. Where an infant conveys his land, and afterwards, on coming of age, would avoid the deed and recover possession, he must before suit make an entry upon the lands, and execute a second deed to a third person, or do some other act of equal notoriety in disaffirmance of the first deed, or an action cannot be maintained: Bool v. Mix, 17 Wend. 119; Dominick v. Michael, 4 Sandf. 420. His act of disaffirmance must be averred in the pleading, and is necessary to be proved. The want of this allegation makes the complaint fatally defective: Voorhis v. Voorhis, 24 Barb. 150. See, also, Civil Code, secs. 35, 36, and 37. As to what acts will amount to affirmance, see Henry v. Root, 33 N. Y. 526.

6. Duly Appointed. That the appointment was made on the plaintiff's application, is implied by the averment that the guardian was duly appointed:" Polly v. Saratoga and Washington R. R. Co., 9 Barb. 449; People ex rel. Haws v. Walker, 2 Abb. Pr. 421: People ex rel. Crane v. Ryder, 12 N. Y. 433.

7. Employment.—In an action by a guardian, to recover from his ward's estate for services rendered in a suit at law, it must be alleged that the employment of the plaintiff was a reasonable and proper expense incurred by the guardian: Caldwell v. Young, 21 Tex. 800.

8. General Averment.-If the allegation be deemed too general, the objection cannot be taken by demurrer. The remedy is by motion to make it more definite: Séré v. Coit, 5 Abb. Pr. 481.

9. General Guardian.-A general guardian cannot sue in his own name to recover money due the infant. Such actions must be brought in the name of the infant, by his guardian: Spear v. Ward, 20 Cal. 676; Fox v. Minor, 32 Cal. 119. In an action by an infant, a general guardian, designated in the complaint as a guardian ad litem, is of no importance, if the body of the complaint shows him to be a general guardian: Spear v. Ward, 20 Cal. 676.

10. Infant Feme Covert.-Under the California Statutes, the disability of infancy attaches as well to a feme covert under age, as to a feme sole, subject to the Act of 1858, p. 108, which makes married women under eighteen, and married with the consent of their parent or guardian, of full and lawful age: Magee v. Welsh, 18 Cal. 155. This statute is not now in force. As to disaffirmance of deed by, see 5 Ohio, 251.

11. Illinois.—In Illinois minors may bring suits in all cases whatever, by persons they may select as their next friend, who must file a bond for costs that may accrue: Scates, Treat. and Stat. 552.

12. Ohio.-In Ohio, the action must be brought by the guardian or next friend of the infant: Ohio Code, sec. 30, who is liable for all costs: Id. sec. 31. In Hulbert v. Newell, 4 How. Pr. 93, it was held that in a joint suit by husband of age, and wife a minor, no guardian for the wife was necessary: Cook v. Rawdon, 6 How. Pr. 233.

13. Partition.-Guardians ad litem appointed to represent an infant in suits in partition, have no power to admit away by their answer the rights of the infants, as it is not a matter within the scope of their appointment: Waterman v. Lawrence, 19 Cal. 210. They have power to defend for the infant solely against the claim set up for partition of the common estate: Id.

14. Promissory Notes.-The promissory note of an infant is voidable, not void: Young v. Bell, 1 Cranch C. Ct. 342: Tucker v. Moreland, 10 Pet. U. S. 58.

15. Special Obligation of Ancestor.-Where the infant was sued upon a special obligation of the ancestor, chargeable upon the inheritance, he might pray that the proceedings be stayed until he should attain his majority. This privilege is confined to the heir alone: Joyce v. McAvoy, 31 Cal. 273. In Ohio it is held that in an action against an infant for the specific performance of an alleged contract with his ancestor, he is entitled to a day in court after coming of age, to show cause against the decree, and if an absolute decree be taken against him, it will be error: Long v. Mulford, 17 Ohio St. 485. In the same case, it was held that the right of parol demurrer, or staying proceedings until the infant attained his majority, was abolished by statute; but that the right of the infant to a day in court after coming of age, does not depend upon the existence or non-existence of the right of parol de

murrer.

16. Trover.-Infancy is no bar to an action of trover for conversion of goods: Vasse v. Smith, 6 Cranch, 226; Fish v. Ferris, 5 Duer, 49; Schunernan v. Paradise, 46 How. Pr. 426.

17. Wages.-An infant, after the death of his father, cannot recover his wages for services performed in the lifetime of his father, under a contract made with the father: Roby v. Lyndall, 4 Cranch C. Ct. 351.

18. Wrongs. Infancy is no defense to an action founded on fraud and falsehood of the party pleading it. Catts v. Phalen, 2 How. Pr. 376; see Cal. Civil Code, sec. 41.

CHAPTER VII.

INSANE PERSONS.

No. 66.

i. By Guardian of an Insane Person, or Person of Unsound Mind.

187., at the

II. That on the ..... day of .... county of .... the probate judge of said county [or city and county], State of California, upon the petition of and after due notice and hearing, adjudged the said C. D. to be an insane person [or incapable of taking care of himself and managing his property].

III. That afterward on the same day [or on the day of ...................., 187.], at said county [or city and county], said probate judge [or court], appointed the plaintiff guardian of the person and estate of the said C. D.; that he, this plaintiff, has given bond as required by law, and still and now is such guardian of the said C. D., as aforesaid.

[Demand of Judgment.]

1. Appointment of Guardian.-Upon petition under oath, by any relative or friend of any insane person, or any person who by old age or other cause is mentally incompetent, the probate judge shall, after hearing and examination, appoint a guardian of his person and estate: Code C. P. sec. 1764. And every such guardian shall appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guardian or next friend: Code C. P. sec. 1769.

2. "Duly Appointed."-The word "duly," as used in the New York forms, may be omitted, as jurisdiction of the probate court will be presumed: See Bloom v. Burdick, 1 Hill, 130. As to presumption of jurisdiction, see "Jurisdiction," chap. 2.

3. Limitations.-The probate of a will shall be conclusive, if not contested within one year, but in the case of infants, married women, and persons of unsound mind alike, a period of one year after their respective disabilities are removed is granted, by the Probate Act; Code C. P. sec.

4. Powers of Guardians.-As to powers of guardians to represent the

interests of their wards in partition, see Cal. Code C. P., secs. 794, 795; Thomas v. Hatch, 3 Sumn. 170.

5. Letters of Guardianship.-Letters of guardianship of an insane person 'cannot be questioned in a collateral proceeding, and are admissible in evidence: Warner v. Wilson, 4 Cal. 310.

The plaintiff complains, and alleges:

I. [State a cause of action against the insane person.] II. That afterwards [or on the .... day of 187.], the said E. F. was adjudged by the

to be a person of unsound mind.

Court

III. That the defendant was on the .... day of..... 18.., appointed by the said Court guardian of the person and estate of the said E. F., and that he, the defendant, accepted said appointment, and is now such guardian.

Wherefore the plaintiff demands judgment for ... dollars, with interest from ....

to be paid out of the estate of the said E. F., in the hands of the defendant.

6. Custody of Lunatics.-For a history of the judicial custody of lunatics, see Brown's Case, 1 Abb. Pr. 108; S. C., 4 Duer, 613.

7. Ejectment.-The guardian of a lunatic, etc., has no estate in his Jands; and an action of ejectment for the lunatic's land must be brought in the lunatic's name: Petrie v. Shoemaker, 24 Wend. 85.

8. Equity Suits.-If any person has a legal or equitable claim against the estate of an insane person, which is under the care of the guardian, who refuses to allow the same, he must apply to chancery by petition. He will not be permitted to sue at law except under the sanction of chancery: Matter of Heller, 3 Paige, 199; Brasher v. Van Cortlandt, 2 Johns. Ch. 242; Williams v. Est. of Cameron, 26 Barb. 172.

9. Habitual Drunkard.-In New York, where, pending a suit brought by a creditor to reach the assets of his debtor, the latter is, by proceedings previously commenced in another court, adjudged to be an habiutal drunkard, and a committee is appointed of his estate, the court in which the former suit is pending cannot properly proceed to final judgment: 3 Paige, 199; 4 Den. 262; 5 Paige, 489; 19 Wend. 649. The rules of comity always ob served toward each other by courts of concurrent jurisdiction, would prevent the granting of a decree as prayed for; Niblo v. Harrison, 9 Bosw. 668.

10. Lunatic.—A suit in equity for the benefit of a lunatic must be brought in his own name: McKillip v. McKillip, 8 Barb. 552; Lane v. Schermerhorn, 1 Hill. 97; Petrie v. Shoemaker, 24 Wend. 85; Davis v. Carpenter, 12 How. Pr. 287; Re McLaughlin, Clarke's Ch. R. 113.

11. Necessary Averment.-A complaint against the guardian of an habitual drunkard must state with particularity the court and authority by which the debtor was declared an habitual drunkard: Hall v. Taylor, 8 How. Pr. 428.

12. Personal Actions.-And there is no distinction between actions concerning his realty and those relating to his personal estate, since all actions must be brought in the name of the lunatic: Lane v. Schermerhorn, 1 Hill, 97; McKillip v. McKillip, 8 Barb. 552. In Alabama, a person may sue an adult lunatic for necessaries furnished him, and is entitled to proceed in the case upon the appointment of an attorney for the defendant, although there is no guardian ad litem: Ex parte Northington, 37 Ala. 496.

CHAPTER VIII.

PARTNERS.

No. 68.

i. Title and Commencement of Complaint by Partners.

A. B. and C. D., the plaintiffs in the above-entitled action, complain of E. F. and G. H., partners under the firm name of E. F. & Co., and allege:

1. [State cause of action.]

[Demand of Judgment.]

1. Actions between Partners.--As a general rule, no action at law can be maintained between partners pending the relation as such: Koningsburgh v. Launitz, 1 E. D. Smith, 215; although a stipulation by one, for the benefit of the others, may be enforced by them or their trustees, as against a limited partner: Robinson v. McIntosh, 3 E. D. Smith, 221. They cannot sue one another for any of the business or undertakings of the firm: Buckley v. Carlisle, 2 Cal. 420; Stone v. Fouse, 3 Cal. 292: Barnstead v. Empire Min. Co., 5 Id. 300; Koningburgh v. Launitz, 1 E. D. Smith, 215; but see Robinson v. McIntosh, 3 E. D. Smith, 221. They can only ask for a dissolution and an accounting: Id. One partner cannot sustain an action against his co-partner for the de