Wife may

defend,
when.

Infant to
appear by

guardian.

9. PARTNERSHIP

OBLIGATION CONTRACTED BY WIFE AND THIRD PARTIES PREVIOUS TO MARRIAGE. The husband of a married woman is properly joined with her as defendant in an action upon a partnership obligation contracted by the wife and third person as partners previous to the marriage and while she was a feme sole.-Keller vs. Hicks, 22 Cal., p. 457.

10. WHEN THE WIFE LIVES APART FROM HUSBAND.--The third subdivision is taken from the Statutes of 1870, p. 226.

11. SOLE TRADER. In a suit against a married woman, who is a sole trader, on a contract made by her, she must be sued alone.--McKune vs. McGarvey, 6 Cal., p. 497. And an action may be maintained by a married woman, who is a sole trader, in her own name, without joining her husband.-Guttman vs. Scannell, 7 Cal., p. 455; see, also, Camden vs. Mullen, 29 Cal., p. 564.

12. DAMAGES TO COMMUNITY PROPERTY.-In an action for damages to the community property the husband must sue alone-the wife cannot be made a party.-Sheldon vs. Steamship U. S., 18 Cal., p. 526; Barrett vs. Tewksbury, 18 Cal., p. 334.

371. (§ 8.) If a husband and wife be sued together, the wife may defend for her own right, and if the husband neglect to defend, she may defend for his right also.

NOTE.-The words, "and if the husband neglect," etc., are added to the original provisions of Section 8 of the Practice Act.

1. The wife can appear in and defend an action separately from her husband. To enable her to do so she must possess, as defendant, all the rights of a feme sole, and be able to make as binding admissions in writing in the action as other parties.-Alderson vs. Bell, 9 Cal., p. 315.

.2. The wife may defend for her own right as well when sued jointly with her husband as if the trial were separate; her defense, if a separate one, could come in in either case.-See Duprez vs. Duprez, 5 Cal., p. 388.

372. (§ 9.) When an infant is a party he must appear by his general guardian, if he has one; and if not, by a guardian who may be appointed by the Court in which the action is prosecuted, or by a Judge thereof, or a County Judge.

Amcuded 1898-14.

NOTE. 1. APPEAR BY GENERAL, NOT SPECIAL,

GUARDIAN his general guardian, if he has one."-Spear vs. Ward, 20 Cal., p. 660. But it has been held that, although the infant may have a general guardian, yet the Court will appoint a guardian ad litem if the interests of the infant require it.-Groufier vs. Puymisol, 19 Cal., p. 629. The words "his general guardian, if he has one; and if not, then by," etc., were not in the section when the above decision was rendered.

2. GUARDIAN APPOINTED BY WILL MAY ACT BEFORE LETTERS ISSUE.-If a guardian is appointed by the will it is not necessary that any letters of guardianship should issue to authorize the guardian to act. The order of appointment, when made by the Probate Court, constitutes the authority of the guardian and the will in cases of testamentary appointment; that of guardian in other cases. ses.-Morris vs. Harris, 15 Cal., p. 256.

3. WHEN MARRIED WOMEN REGARDED AS INFANTS WHEN UNDER AGE.-It has been held that in some instances the disability of infancy attaches as well to married women under age as it does to other infants.-See Magee vs. Welsh, 18 Cal., p. 159.

4. ACTION IN NAME OF INFANT FOR MONEY DUE HIM. In an action to recover money due to an infant, the action must be brought by the guardian in the name of the infant, and not in the name of the guardian.Fox vs. Minor, 32 Cal., p. 111.

5. GUARDIAN AD LITEM NOT

APPOINTED UNTIL

INFANT IS BROUGHT IN COURT.-The Court has no right to appoint a guardian ad litem, until the infant is properly brought into Court.-Gray vs. Palmer, 9 Cal., p. 638.

6. GUARDIAN AD LITEM LIMITED IN AUTHORITY. A guardian ad litem has only a special and limited authority, and cannot go beyond it. Where guardians ad litem are appointed to represent an infant in a suit for the partition of real property, they had no authority to give and gave no assent to a decree, nor for partition or division of a common estate, but for a foreclosure of all claim of the infants, and the quieting against them of the plaintiff's title to the particular piece of land mentioned in the decree. The Court might as well have entered a decree affecting their title or declaring void their claim to any other property. The infants were not before the Court for any such purpose, and the appointment of the guardian being a special power exercised by the Court, and giving only special and limited authority to the guardians, it would seem that

Guardian, how

their acts, so far transcending this authority, would be void Waterman vs: Lawrence, 19 Cal., p. 217.

7. INFANT'S DAY IN COURT AFTER HE ATTAINS HIS MAJORITY, ETC.-At common law, when the heir was sued at law, upon a speciality obligation of the ancestor chargeable upon the inheritance, he might pray that "the parol demur"-that is to say, that the pleadings or proceedings be stayed till he should attain his majority. This privilege was based on feudal reasons, and was confined to heirs. It did not even extend to devisees. "Courts of equity did not, however, confine this species of protection to cases precisely similar to those in which the parol could demur at law, but by a kind of analogy they adopted a second rule by which in cases of foreclosure and partition, and in all such cases in which the real estate of an infant was to be sold or conveyed under a decree of the Court, and, consequently, the execution of the conveyance was necessarily deferred, the infant had an opportunity, after attaining twenty-one, to show cause against the decree. For this purpose a provision was inserted in the decree."-Joyce vs. McAvoy, 31 Cal., p. 279, and cases there cited.

373. When a guardian is appointed by the Court, appointed. he must 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 a relative or friend of the infant;

2. When the infant is defendant: upon the application of the infant, if he be of the age of fourteen years and apply within ten 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.

NOTE. This section relates to the appointment of a guardian ad litem where there is no general guardian. Spear vs. Wand, 20 Cal., p. 659; Norris vs. Harris, 15 Cal., p. 255; Groufier vs. Puymisol, 19 Cal., p. 629. See the cases referred to in note to the preceding section.

Amended 1873-40

female may
sue for

or own

374. An unmarried female may prosecute, as Unmarried plaintiff, an action for her own seduction, and may recover therein such damages, pecuniary or exemplary, as are assessed in her favor.

NOTE.-This, and the succeeding section, are new. Heretofore the action could only be in the name of the parent, or one who stands in that relation, and is supported by the fiction that he has suffered pecuniary injury by loss of service, etc. The object of these sections is to provide a remedy in favor of the party injured, and to make the law, in this respect, harmonious with the declaration of the Code, "that all actions must be prosecuted in the name of the real party," etc.

seduction.

etc., may
sue for
seduction of
daughter,

etc.

375. A father, or, in case of his death or desertion Father, of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not liɣing with or in the service of the plaintiff at the time of the seduction or afterwards, and there be no loss of service.

376. (§ 11.) A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward.

NOTE. It was held that the eleventh section of the Practice Act (which was in the same terms as this section), which provides that the father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward, does not create a right of action where none existed before, but merely designates the persons by whom an action, for the causes therein mentioned, which then existed, or might thereafter be created by statute, should be brought; and at the time the Practice Act was passed, the death of a person constituted no cause of action; and the eleventh section of that Act, so far as it designates the parties by whom an action for the death of a person may be brought, is repealed by the Act of 1862 (see next section), which provides that "every such action shall be brought by and in the

names of the personal representatives of such deceased person."-Kramer vs. Market St. R. R. Co., 25 Cal., p.

435.

377. When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or when the death of a person is caused by an injury received in falling through any opening or defective place in any sidewalk, street, alley, square, or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was, at the time of the injury, to have kept in repair such sidewalk or other place. In every such action the jury may give such damages, pecuniary or exemplary, as, under all the circumstances of the case, may to them seem just.

NOTE.

This section is intended as a substitute for 'An Act requiring compensation for causing death by wrongful act, neglect, or default."-Stats. 1862, p. 447. The portion of that Act relating to the time in which the action must be commenced is inserted in Chapter 3 of the Title relating to the time in which civil actions must be commenced.-See Kramer vs. Market St. R. R. Co., 25 Cal., p. 435.

378. (§ 12.) All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this Title.

NOTE.-1. "HAVING AN INTEREST IN THE SUBJECT OF THE ACTION."-See Sec. 367, ante, and notes. In an action of trover all parties in interest should be joined.-Whitney vs. Stark, 8 Cal., p. 514.

2. "EXCEPT WHEN OTHERWISE PROVIDED IN THIS TITLE."-See the following notes.

3. "ASSIGNEES OF THINGS IN ACTION."-See Sec. 368, ante, and notes.

4. EXECUTORS, ADMINISTRATORS, AND TRUSTEES. See Sec. 369, ante, and notes.

5. MARRIED WOMEN.-See Secs. 370 and 371, ante, and notes.