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

い

the

one, if he has none, then to the infant himself if over fourteen years of age, or if underthat 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 delicto-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

the mortgagors. Conde v. Shepherd, 4 Pra. R., 75. S. C. Conde v. Nelson, 2 Code Rep. 58.

It is not necessary to join all the parties to a tort as defendants, one or more or all may be sued jointly or each separately. 6 Johns. R. 26, 31. Where the tort, however, consists of verbal slander by two or more, a separate action must be brought against each, they cannot be sued jointly. Ib.

An action to recover real property should be brought against the person in the actual occupation or possession of the premises, and it is now proper to add as defendants, all persons who have or claim an interest in the controversy adverse to the plaintiff. Waldorph v. Bortel, 4 Pr. R. 358.

Under the former practice when the premises were actually occupied, the action of ejectment could only be brought against the person in possession. It was only where the premises were not so occupied that the action might be brought against some person exercising acts of ownership over the premises claimed, or claiming title thereto, or some interest therein. (2 R. S. 400.) Shaver v. McGraw, 12 Wend. 558. This rule, however, as to parties in action to recover possession of real property is now changed, and section 118 is applicable to every civil action, including as well, 'cases in which the remedy would formerly have been at law, as those in equity. The practice in all actions now, is the same as in our late court of chancery, and in an action to recover possession of land, all persons claiming title to, or an interest in the property, may be made defendants as well as the persons in actual possession. The plaintiff now makes parties defendants at the peril of paying the costs of those who have judgment in their favor. Ib. And see note to section 111.

§ 119. [99.] Parties to be joined, &c.-Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint, and when the question is one of a common or general interest of many persons; or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

§ 120. [100.] Parties to bills and notes, &c.-Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff.

See section 304 of this code as the effect of bringing several actions on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action against several parties who might have been joined as defendants in the same action.

As a joint judgment against all the parties is as effectual as a separate judgment against each would be, it is generally advisable to include all in one action, especially as no costs other than disbursements are allowed to the plaintiff in more than one action, if he bring several actions against parties who may be joined in one. See section 304 of this code.

§ 121. [101.] Action when not to abate.-No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive

or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party; or the court may allow the person to whom the transfer is made to be substituted in the action.

This section is identical with section 101 in the code of 1848, and under that code it was held that a bill of revivor and supplement was necessary to revive a suit commenced before July, 1848, except in cases where the party sought to be made a defendant would voluntarily come in as a party to the suit. Phillips v. Drake, 1 Code Rep. 63.

Thus in a suit pending on the 1st of July, 1848, one of the defendants died after July 1, 1848, and motion was made for an order under this section, to allow the suit to be continued against the successor in interest of such deceased defendant. The successor in interest had notice of the motion, and opposed its being allowed, and per Edmonds, J. "I do not see that granting this motion would serve the party making it. It is true, that under section 101 (now 121) I may grant this motion, and if this was an action commenced since the code took effect, section 102 (now 122) would enable me to make such an order as would be of some utility; but this was a suit pending when the code went into operation, and section 101 (now 121) applies, but that section only gives me power to allow the successor in interest to be substituted; and section 102 (now 122) is not made applicable to this case; unless, therefore, the successor in interest will come in voluntarily and be made a party to the suit, I have no power in the matter. In this case the successor in interest, the trustee of the deceased defendant, refuses to consent to be made a party, and any order I may make will be inoperative. The code does not provide any means either of compelling the successor in interest to be made a party or of taking judgment against him by default. The only remedy open to the plaintiff is that provided by the former practice, a bill of revivor and supplement."` Phillips v. Drake, 1 Code Rep, 63.

It has since, however, been adjudged that this section, so far as it is made appli-cable to suits pending before July, 1848, and to transfer of interest made before that time, is unconstitutional. Vrooman v. Jones, 5 Pr. R. 369. This was held in an action of ejectment which was commenced, tried, and a new trial ordered, prior to July, 1848. Such a case must be governed by the revised statutes, (2 R. S. 387, s. 4.) which enact in substance that the death of either party after verdict or plea of confession, and before judgment, shall not abate the action, but the court may within two terms after such verdict or confession, enter final judgment in the names of the original parties. An administrator of a deceased plaintiff may have leave to continue the action if the pleadings show a cause of action which survives without regard to the merits of the action. Wing v. Ketcham, 3 Pr. R. 385, 2 Code Rep, 7.

An action brought against a sole defendant to recover the possession of land, may be continued after the death of the defendant intestate against his heirs at law, claiming to have succeeded to his legal rights and to own the land. Waldorph v. Bortel, 4 Pr. R. 358.

After the death of one of several plaintiffs, in an ejectment suit commenced before the code took effect, a motion was made by the surviving plaintiffs at special term, to substitute the names of two individuals and the people of the State, to prosecute the suit, as representatives or successors in interest of the deceased plaintiff. It being a matter of doubt which of the three parties proposed was entitled to the right, the first being sole trustee under the will, it being doubtful whether he would take the title or only a power in trust, the second being an heir, but doubtful whether a citizen of the United States-and if neither of the two had the right, it was doubtful whether it did not pass by escheat to the people of the State. The motion was denied. St. John v. West, 4 Pr. R. 329, 3 Code Rep. 85.

And per Selden, J., on dismissing an appeal from the order denying the motion. In this case the motion was threefold: to substitute the names of the heir of the deceased, the trustee under the will, and of the people of the State.

The defendant insists that, conceding that the statutory provision referred to would authorize the substitution of the names of the heir and trustee, it does not extend to the people, and consequently, so far as that branch of the motion is concerned, it must be regarded as an application to amend the declaration by adding a new party; and as addressed to the discretion of the court.

To this it is answered, that in case of an escheat, the people in respect to the ownership of the property, succeed directly to the deceased proprietor; that they and the last owner bear to each other the relation strictly of predecessor and successor, and consequently by the express terms of the section, the people have the same right to be substituted as the heir. Is this a sound interpretation of the statute? The object of the provision is to prevent the abatement of a suit, where the same rights which the suit is brought to enforce, continue; and where nothing is changed but the person in whom the right is vested. But do the people of the State in case of an escheat succeed to the rights of the last proprietor? Is their title the same, to be deduced through the same channels, and supported by the same evidence? Manifestly not. Theirs is a prior right, which has become paramount by reason of the extinction of that upon which the action was founded. It cannot be said in any sense that they derive their title from the last owner. His was secondary and derivative; theirs original and primary. My conclusion therefore, is, that the term successor as used in the statute, does not include the people when they claim by escheat; and that even if it would be proper in any case to allow them to be joined as plaintiffs in the same suit with private persons, for the benefit of the latter, the application for such a privilege must be considered as asking a favor of the court, and not as a matter of strict right.

The statute gives the right of continuing the suit in the name of the representative or successor in interest. In order to avail himself of this right, the party must show who is the successor. He must make out a prima facie case before the right attaches. This certainly he cannot do in the case of two persons not claiming in the same character.

He may, as is assumed to have been done here, make a case of doubt which of the two is entitled to the right. But this does not give to either the right, under the statute, of being substituted in the suit. The person to whom the title has passed, being ascertained, the statute gives to him the right of prosecuting the suit, and to no other. It gives no right of experimenting as to the proper party. It was decided in the case of Boynton v. Hoyt (1 Denio, 50), that a party claiming to be substituted under the corresponding provisions of the revised statutes, must show himself prima facie to have succeeded to the title. The applicants here have not asked that the court should determine upon the facts presented, which of the three parties has succeeded, and to substitute such party. This perhaps they might have done: but they ask to be permitted to include two persons who are conceded to be without title. It may be proper in many cases to avoid a multiplicity of suits, or to save a right from the operation of the statute of limitations, that the court should permit, in a case of doubt, a number of names to be used; but this is clearly not a matter of strict right, but a question of discretion. Ib.

And see amendment to section 122.

Where in an action against a non-resident defendant, the summons is served by publication under an order of the judge, the suit is not commenced until the expiration of the time prescribed for publication, so that if the defendant die before the expiration of such time, no action is pending that can be revived against his representatives. McEwens Ex'r. v. Public Administrator. 3 Code Rep. 139.

The motion to continue the action must in the case of a sole plaintiff be made by his executor or administrator. In the case of several plaintiffs it may be made by a surviving plaintiff or by the executor or administrator of the deceased plaintiff, and it is said that the motion to continue the suit may be made by the defendant in case no motion for that purpose be made by a surviving plaintiff or the representative of a deceased plaintiff, within a reasonable time. The motion should be noticed for a special term, and be supported by an affidavit of the facts on which the motion is founded. It will be observed, that the motion is to be made within one year from the happening of the death, marriage, or other disability, and if the party entitled to