Alger v. Scoville. remains in the clause no other interpretation is admissible. Moreover, for the court to attempt to correct and reconcile the statutes would be an endless as well as dangerous task. This construction, however, does not lead to, but, as we suppose, avoids absurdity. If there is any absurdity, it consists in the idea of settling all the controversies that may exist, however numerous, between the same parties in an ordinary trial by jury. This we admit is excessively preposterous. It was well remarked by HAND, J., in the recent case of Boyce v. Brown (7 Barb. S. C. R. 80), that "all experience has shown that trial by jury is best adapted to direct issues." He might have added, that the issues must be not only reasonably simple but reasonably few in number. In this respect those who advocate the union of many causes of action in one suit, manifest their ignorance of the true nature of trial by jury. For, when it is remembered that the theory of jury trial requires twelve men to be unanimous upon a disputed point, and that they must attain that unanimity in regard to every issue submitted to them; that they usually take no notes of the evidence, and consequently cannot always bring it to mind after they retire; that a disagreement as to one essential issue renders a new trial as to all necessary; it requires but little experience to discover that the fewer and simpler the questions, the better they are likely to be decided; that a multiplicity of issues increases the chance of a disagreement; that in long and complicated trials the jury too often either look to the judge as a guide, or resort to those compromise verdicts which show that the real merits have been lost sight of. It may be safely said that singleness and simplicity in this respect are indispensable to the full enjoyment of the benefit of trial by jury. But there are other sections of the code inconsistent with the practice of uniting such claims as are attempted to be joined in this case. Sections 253 and 254 provide that issues of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless waived; and that all other issues are triable by the court. Although there is no express prohibition against uniting a cause of action triable by the court with one triable by a jury, it is obvious from the various provisions in relation to trials, verdicts, and judgments, that such union Alger v. Scoville. is not contemplated; nor is it practicable, in our judgment. In the case before us, the plaintiff claims judgment for $4000 against one of the defendants upon a contract of indemnity to which the others are not parties. If issue of fact be joined on this it must be tried by a jury, if either party wishes. In regard to another defendant the plaintiff charges that he is unfit to serve as a trustee, and prays that he may be removed and a receiver appointed of the estate. This is a matter triable by the court according to the code; and, according to common sense and the nature of things, it cannot be tried by a jury. Now there is no provision found either in the code or in the practice of the courts, for trying part of a cause in one forum and part in another; or part at one time, and part at another, where issues of fact only are joined. The clause in section 254 authorizing the court "to order the whole issue, or any specific question of fact involved therein, to be tried by a jury," applies only to actions triable by the court, and is analogous to the former practice in chancery. It has no application to actions which must be tried by a jury. In such actions all the issues of fact must be submitted to the jury at the same time. If, therefore, there was nothing else in the code to forbid the joinder of such causes of action, the fact that some of the issues of fact which may be formed, are to be tried by a jury, and others by the court, would seem to present a difficulty almost, if not quite, insurmountable. But it is said that we must construe the code liberally. This is a very common argument, and is not unfrequently urged by both parties; meaning thereby a construction in their favor, respectively. Section 159, however, defines the liberality which courts are to exercise as that which promotes substantial justice. To permit the joinder of causes of action separate and dissimilar in their nature, requiring different trials, is not the liberality contemplated by the law; for, instead of promoting justice, it would tend to confusion and uncertainty. Nor is it by any means certain that such a mode of pleading, if allowed, and if all the issues could be tried at once, would save expense to the parties, as is sometimes supposed. If the four causes of action first above named should be joined in one suit, and issues of fact formed thereon, it might very well happen that four different sets of witnesses would be required, coming Alger v. Scoville. from distant parts of the state. This, of itself, renders it difficult for the parties to be fully prepared for trial, and hence causes are put off from term to term. Add to this, the increased length of the trial, the probability of a disagreement of the jury, or of errors of the court, requiring another trial, and it will be seen, by those who are capable of judging, that the advantage of trying numerous issues at once, in point of economy, is very questionable. However this may be, there can be no doubt that the code has hitherto utterly failed to fulfil the predictions of those who claimed that it would diminish the quantity or aggregate expense of litigation. On the contrary, our courts are, in some sections of the state, flooded with questions arising upon its new provisions or its unusual phraseology. Hundreds and thousands of cases are carried from court to court to settle the meaning of ambiguous or unintelligible language; and it is believed, notwithstanding the great increase of the judicial force of the first district, and its acknowledged ability and industry, that there are more causes now pending in that district alone, than there were in the whole state, at any time prior to the new system. It is in truth greatly to be regretted, that those who assumed the responsibility of devising a remedy for the insufficiencies of the former system, did not more fully understand and appreciate the true cause and nature of the evils to be remedied; which arose mainly from a want of sufficient judicial force to dispose of the rapidly increasing business of a growing state and a commercial people. But in this age of progress, it not unfrequently happens, that alteration is mistaken for reformation, and the public, feeling the necessity of some improvement, is too often contented with a mere change; not distinguishing, at first, between the benefits of a solid reform and the crude innovations of conceited pretension. Judgment for the defendants. Heller v. Heller. SUPREME COURT. Special Term.-November, 1851. HELLER V. HELLER. Section 409 of the code does not apply to the service of a summons. Service of a summons on an insane person must be by a personal service on such person, and on his committee, if any. The committee of a lunatic defendant having no adverse interest will be appointed guardian ad litem of such lunatic, ex parte and of course. Appointment of guardian where there is no committee. Semble, That since the amendment of 1851 to the 114th section of the code a married woman must prosecute or defend a suit for an absolute divorce by her next friend. This was an action by a husband against his wife for a divorce by reason of adultery committed by the wife. It appeared that the wife had for many years been living apart from her husband; that she was insane and totally incapable of conducting any business; that she had no committee, and her only male relatives were her father and brother, on whom the summons had been served, and who now petitioned and moved, ex parte, for the appointment of a guardian ad litem. HAND, J.--If the summons was served on the brother of the defendant only, the service is not sufficient, and I think the court should not act upon such service, unless the irregularity is in some way waived. If she be insane, the service must be personal; and if there be a committee, also on the committee (Code, § 134). The section (409) relative to service at the residence, does not apply to the service of a summons. Before the code, the committee of a lunatic defendant, not having interests adverse to the lunatic, could have an order appointing the committee guardian of course. And no notice to the opposite party was necessary when the committee applied (New v. New, 6 Paige 237; 1 Barb. Ch. Pr. 86; Shelf. on Lun. 424). Indeed in such cases, in England, no guardian, it would seem, Heller v. Heller. is now necessary (Lady Hartland v. Atcherly, 7 Beavan 53; 2 Dan. Pr. 870). By the code, where the husband is not a coplaintiff or a co-defendant, it seems the wife must now always prosecute or defend by prochein ami. The alteration of section 114 by the amended code of 1851, seems to have settled the practice which was mooted in Shore v. Shore, 2 Sandf. 715; Tippel v. Tippel, 3 Code Rep. 40; Coit v. Coit, 2 Code Rep. 94; 3 ib. 23; Anon., ib. 18. Where no committee had been appointed, a person of unsound mind, before the code, defended by a guardian ad litem (Shelf. on Lun. 425; Wilson v. Grace, 14 Ves. 172; Mitf. 104; Stor. Eq. Pl. § 70; 1 Dan. Pr. 203; 1 Barb. Pr. 86). But whether notice of the application should be given to the opposite party in such cases does not seem to be well settled. No notice is taken of the appearance of counsel for the plaintiff in the reports of the cases of Wilson v. Grace, supra; Markle v. Markle (4 J. C. R. 168); Att'y Gen. v. Waddington (1 Mad. R. 321); nor in Howlett v. Wilbraham (5 id. 423). It is said in this last cas, that the plaintiff moved; but it appears by Daniel's Practice that the motion was on the part of the defendant (1 Dan. Pr. 203). But it does not appear that notice was not given in the above cases; and in Pryce v. Page, there was an appearance for the plaintiff (1 Mad. R. 321). Where the complaint does not state that the defendant is a lunatic, I am inclined to think, notice of the application to appoint a guardian should be given, particularly in a matter so important to the partics as a suit for a divorce a vinculo. The plaintiff should have an opportunity to know why the suit is defended by a guardian instead of the party. In this case, the defendant being a feme covert, must, as we have seen, appear by a next friend. The next friend for a feme covert plaintiff, in ordinary cases, acts by her consent (Fulton v. Rosevelt, 1 Paige 180). But a lunatic cannot consent. However, a plaintiff may apply for the appointment of a guardian ad litem for a lunatic defendant (Shelf. on Lun. 426); and a relative did so, in Markle v. Markle, supra. The next friend, required by the code, stands in the place of the former guardian ad litem, and should be appointed in the same way. But notice of the motion should have been given, unless the complaint alleges that the defendant is insane, in which case, |