SMITH, J., it was decided, that a guardian for an infant plaintiff is not bound, under the Code, to give security for costs. The provision of the Revised Statutes requiring the "next friend" of an infant plaintiff to give security for costs, does not apply to a guardian. (J. C. SMITH, J., dissenting.)

In Rutter agt. Puckhofer, 9 Bosi. 638, General Term, November, 1862, MONELL, J., it was decided, that in an action in which the court have jurisdiction of the parties and the subject matter, the omission of an infant plaintiff to procure the appointment of a guardian ad litem, is an irregularity which may be cured or waived. It does not deprive the court of jurisdiction. The defect is cured if the plaintiff attains majority before the defendants raise any objection.s

4. Q. When and how should a guardian be appointed for an infant defendant?

A. In Grant agt. Van Schoonhoven, 9 Paige, 256, August, 1841, it was decided, by the CHANCELLOR, that in the appointment of a guardian ad litem for an infant defendant, a person should be selected who will be most likely to protect the rights of the infant. And where the father or other natural guardian of the infant defendant is complainant in the suit, the next nearest relative of the infant is entitled to be heard on the selection of a proper guardian ad litem, to defend the suit.

In Litchfield agt. Burwell, 5 How., 345, Special Term, December, 1850, SILL, J.. it was decided, that where the court clearly discover that the interests of infants are committed to a guardian who is not likely to protect them, he should be removed, and a proper one appointed. The facts upon which a plaintiff relies for judgment against infant defendants must be established by legal proofs, notwithstanding the attorney for the guardian of the infant defendants may have consented in writing that such judginent be taken upon the report of a referee.

In McConnell agt. Adams, 3 Sandf., 728, General Term, April, 1851, SANDFORD, J., it was decided, that the provisions in this section was intended for the benefit and protection of the infant, to secure him the opportunity of having a guardian of his own selection; and an infant defendant over fourteen, served with a summons, may apply after, as well as before the expiration of twenty days, for the appointment of a guardian ad litem, if none have been appointed for him.

In Disbrow agt. Folger, 5 Abb., 53, Special Term, June, 1857, MITCHELL, J., it was decided, (which was before the amendment to this section in 1862,) that except in the first judicial district, an order for the appointment of a guardian ad litem of an infant defendant in a partition suit, who was a non-resident of the state, could only be made by the court. But in the first judicial district such order may be made by a judge at chambers; and it operates as an order of the court. The amendment of 1862, requires in such case, that the application be made to the court, at any special term thereof.

In E. B. agt. E. C. B., 28 Barb., 299, General Term, November, 1858, INGRAHAM, J., it was decided, that a guardian ad litem for an infant defendant over fourteen years of age should be appointed on the application of the infant by petition; and the court must be satisfied that the infant has made a voluntary nomination. No person can be appointed guardian, on his or her application, and without the infant's consent.

In Knickerbacker agt. De Freest, 2 Paige, 303, August, 1830, it was decided by the CHANCELLOR, that the court will not appoint a guardian ad litem for an infant defendant, upon the nomination of the plaintiff, except in case of partition, or the foreclosure of a mortgage, and the infant is a non-resident of the state. It is the duty of a guardian ad litem to submit to the court for its consideration and decision, every question involving the rights of the infant affected by the suit.

In Leopold agt. Meyer, 10 Abb., 40, N. Y. Common Pleas, Special Term, January, 1860, HILTON, J., it was decided, that the appointment of a guardian ad litem for an infant, cannot be forced upon any person against his consent; nor can he after his appointment for an infant plaintiff, be compelled to incur, in the prosecution of the suit, any liability other than for the costs of the adversary, if the infant fails in the action; and for which he has his remedy against the infant's estate by a proper proceeding. Though he is entitled to have any expenses, necessarily incurred by him in the action, re-imbursed out of the proceeds recovered, yet his application to the court for that purpose, must be made before the fund has been paid over by the attorney to the plaintiff.

In Robertson agt. Robertson, 2 Paige, 387, July, 1832, it was decided by the CHANCEL LOR, that a responsible person is one worth at least $250 above all debts.

In 1 Barb., Ch. Pr., 85, the rule is that 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, if he be competent in other respects.

In Glover agt. Haws, 19 Abb., 161, General Term, November, 1862, BARNARD, J., it was decided, that the appointment of a guardian ad litem for an infant defendant who had not been served with a summons, is void.

In Parks agt. Parks, 19 Abb., 161, General Term, March, 1865, it was decided by the COURT, that after an answer is served, a defendant is too late to move to set aside the plain tiff's proceedings, on the ground that the action is prosecuted without the appointment of a guardian.

5. Q. When does a surrogate acquire jurisdiction to appoint a general or testamentary guardian for an infant?

A. In The Matter of Hannah M. Pierce, 12 How., 532, Special Term, May, 1856, E. DARWIN SMITH, J., it was decided, that the mother of an infant child has no authority, by law, to dispose of the custody and tuition of such child during its minority; consequently she has no power to appoint a testamentary guardian for such child. A surrogate acquires jurisdiction to appoint a general guardian of an infant, where the actual residence of the latter, for the time being, is in the county of the surrogate, although the legal residence or domicil of the infant is in another county. And where such appointment of a general guardian is made by the surrogate, the question of residence can be reviewed only on appeal.

6. Q. How is the appointment of a guardian ad litem, for an infant in actions for partition to be regulated and made?

A. The answer to this question will be found under section 448.

7. Q. When and how is the appointment of guardians ad litem, for infant parties, to be made in the district (justices) courts of the city of New York?

A. The answer to this question will be found under section 66, Q. 24.

8. Q. What power has a guardian ad litem, in reference to the settlement of actions? A. In Edsall agt. Vandemark, 39 Barb., 589, General Term, May, 1863, CAMPBELL, J., it was decided, that the only source of power for the guardian ad litem, is the court. The appointment is made not by the infant, but by the court or a judge thereof. He is appointed to prosecute the action, and he may employ the ordinary and customary means to bring it if possible, to a successful termination. The authority conferred upon him is to prosecute, not to settle; to obtain for the infant an adjudication as to his rights-not to barter away those rights in such manner as the guardian may choose. Therefore, a guardian ad litem cannot, of his own mere motion, and without the order of the court, make an absolute settlement of the whole matter in controversy, so as to bind the infant.

What is the result of the decisions under this section?

1. (3 Q.) The Code has not abrogated the former practice, requiring the appointment of a guardian for an infant plaintiff, before the issuing of the summons and complaint. 2. Where a guardian for an infant plaintiff was not appointed until the day of the service of the summons and complaint, which were dated and sworn to one day previous, it was held that the summons was irregular.

3. In actions brought by infants, a guardian is not necessary, nor is he liable for costs, only in cases where the infant is sole plaintiff.

4. A suit must be commenced in the name of an infant-sole plaintiff, to entitle the defendant to security for costs.

5. If a feme covert plaintiff is not an infant, or lunatic, &c., ne order for leave to sue by guardian, or for appointment of guardian is necessary.

6. Before the Code, an infant plaintiff sued by a next friend, and an infant defendant appeared by guardian; but the Code now requires a guardian in both cases.

7. Under the Code, although the change may be in name merely, it is irregular for an infant plaintiff to sue by a next friend instead of a guardian.

8. A guardian of an infant plaintiff should be a responsible person, for he is liable for

costs.

9. A guardian for an infant wife, who joins with her husband as plaintiff is not neces

sary.

10. It seems, that the part of rule 60 of the supreme court, which requires the guard. iau ad litem to be the general guardian, or an attorney, &c., does not apply to a guardian for the plaintiff.

11. A guardian for an infant plaintiff is not bound, under the Code, to give security for costs.

12. The provision of the Revised Statutes, requiring the "next friend" of an infant plaintiff to give security for costs, does not apply to a guardian.

13. The omission of an infant plaintiff to procure the appointment of a guardian ad litem, is an irregularity, which may be cured or waived. It does not deprive the court of jurisdiction.

14. The defect of omitting to appoint a guardian ad litem for an infant plaintiff, is cured if the plaintiff attains majority before the defendant raises the objection.

15. (4 Q.) In the appointment of a guardian ad litem for an infant defendant, a person should be selected who will be most likely to protect the rights of the infant.

16. Where the father or other natural guardian of the infant defendant is complainant in the suit, the next nearest relative of the infant is entitled to be heard on the selection of a proper guardian ad litem to defend the suit.

17. Where the court clearly discover that the interests of infants are committed to a guardian, who is not likely to protect them, he should be removed and a proper one appointed.

18. The facts upon which a plaintiff relies for judgment against infant defendants, must be established by legal proofs, notwithstanding the attorney for the guardian of the infant defendant may have consented in writing, that such judgment be taken upon the report of a referee.

19. The provisions of this section (116) was intended for the benefit and protection of the infant, to secure him the opportunity of having a guardian of his own selection.

20. An infant defendant over fourteen, served with a summons, may apply after as well as before the expiration of twenty days, for the appointment of a guardian ad litem.

21. In the first judicial district, an order for the appointment of a guardian ad litem of an infant defendant, may be made by a judge at chambers, and it operates as an order of the court.

22. A guardian ad litem for an infant defendant over fourteen years of age, should be appointed on the application of the infant by petition.

23. Where an application is made for the appointment of a guardian ad litem, for an infant defendant over fourteen years of age, the court must be satisfied that the infant has made a voluntary nomination.

24. No person can be appointed guardian, on his or her application, and without the infant's consent.

25. The court will not appoint a guardian ad litem for an infant defendant upon the nomination of the plaintiff, except in case of partition, or the foreclosure of a mortgage, and the infant is a non-resident of the state.

26. It is the duty of a guardian ad litem to submit to the conrt for its consideration and decision, every question involving the rights of the infant affected by the suit.

27. The appointment of a guardian ad litem for an infant, cannot be forced upon any person againt his consent.

28. A guardian ad litem for an infant plaintiff cannot be compelled to incur, in the prosecution of the action, any liability other than for the costs of 'the adversary, if the infant fails in the action.

29. A guardian ad litem for an infant is entitled to have any expenses, necessarily incurred by him in the action, re-imbursed out of the proceeds recovered.

30. A guardian ad litem for an infant, must make application to the court for his necessary expenses incurred in the action, before the fund has been paid over by the attorney.

31. A responsible person for a guardian ad litem, is one worth at least $250, above all debts.

32. Where an infant defendant is a married woman, it is customary to appoint her hus band her guardian, unless he has an interest adverse to her.

33. The appointment of a guardian ad litem for an infant defendant, who had not been served with summons, is void.

31. The defendant is too late in moving to set aside the plaintiff's proceedings, on the

ground that the action is prosecuted without the appointment of a guardian, after the answer is served.

35. (5 Q.) The mother of an infant child has no power to appoint a testamentary guard

ian for such child.

36. A surrogate acquires jurisdiction to appoint a general guardian of an infant, where his actual residence for the time being, is in the county of the surrogate, although his legal residence is in another county.

37. Where a surrogate makes an appointment of a general guardian for an infant, the question of residence may be reviewed on appeal.

38. (8 Q.) The only source of power for a guardian ad litem, is the court. The authority conferred upon him is to prosecute, not to settle.

39. A guardian ad litem cannot of his own mere motion, and without the order of the court, make an absolute settlement of the whole matter in controversy, so as to bind the intant.

$117. Who may be joined as plaintiffs. (Same as § 97 in 1848.)

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.

1. Question. Has this section been amended since its passage in 1848 ? Answer. It has not.

Questions.

2. Q. Is it proper to join as plaintiffs, in an action for damages on an injunction boud, all the obligees in the bond, though their interests be different in character and amount? 3. Q. Can different persons, owning separate tenements, unite in a suit to restrain a nuisance, &c.?

4. Q. Can commissioners of highways of two towns unite in bringing an action to recover a penalty or forfeiture, for an encroachment upon a highway running on a line between the two towns?

5. Q. Can different creditors, having a common interest in the relief sought, unite in one action against the debtor?

6. Q. When are the members of a company or association unorganized not entitled to maintain an action jointly for damages; and must all the defendants in a judgment be made parties in an action by one of them, to stay proceedings on the judgment?

7. Q. Can persons who are entitled to the principal of a trust fund, under a trust deed, the interest being payable to the grantor during his life, maintain an action against the trustee for accumulated interest after the death of the grantor?

8. Q. In whose name must a republic, or an officer of a foreign government, sue in our

courts?

9. Q. When a judgment of interpleader directs a suit between A. and B. by name, what other parties may be brought in?

10. Q. Must tenants in common join in an action for the conversion of their personal property, or for an injury to their real estate? And can one tenant in common, release an entire cause of action without the consent of the other?

11. Q. Who are proper parties to an action against a trustee, to recover a trust fund, which he is bound to distribute to different persons in unequal proportions!

12. Q. Can one heir at law, of an owner in fee of demised premises for a term of years,

sue alone to recover his aliquot part of subsequently accruing rent, where, the owner dies intestate before the expiration of the lease? And when can devisees in remainder bring a joint action for rent?

13. Q. Where a breach of covenant in relation to real estate converts the claim into a chose in action, in which several parties are interested, does a subsequent assignment of the prem ises to one of the several parties, authorize him to bring an action for such breach?

14. Q. Is the remedy, which was formerly obtained by a creditor's bill, retained under the Code? And can separate creditors unite in one action against a common judgment debtor? 15. Q. Can several plaintiffs, claiming under distinct titles for distinct interests, unite in an action to recover the possession of lands or the rents and profits thereof?

16. Q. Have the people of the state any interest in the public highways of a city, which will authorize them to unite with owners of rights of property on such streets, for the purpose of restraining the building of a railroad thereon!

17. Q. If all of several partners do not join as plaintiffs, where it is proper they should, is it an objection to a recovery by those who do sue, where the defect appears on the face of the complaint, and the defendant fails to demur?

18. Q. Is an executor of a vendor of land, a proper party plaintiff, in an action by a devisee of the vendor, against the vendee, to recover purchase money due upon the contract for the sale of the land?

19. Q. Who must join as plaintiffs in the prosecution of a bond running to several obligees?

2. Q. Is it proper to join as plaintiffs, in an action for damages on an injunction bond, all the obligees in the bond, though their interests be different in character and amount?

A. In Loomis agt. Brown, 16 Barb., 330, General Term, July, 1853, GRIDLEY, J., it was decided, that this section of the Code is now the rule as to parties in all cases; whether such as were formerly the subjects of suits in equity or of actions at law. And where an action is brought upon an injunction bond, to recover damages sustained by several plaintiffs in consequence of the injunction, all the obligees may join as plaintiffs, notwithstanding the claim of one of them is different in its character and amount from that of the others.

In Cole agt. Reynolds, 18 N. Y. R., 74, September, 1858, HARRIS, J., it was decided, that two firms, in each of which A. was a partner, stated an account of their mutual dealings. The partners in the creditor firm, with the exception of A., who declined to be a plaintiff and was made a defendant, brought their action against the members of the debtor firm: Held, that upon proof of these facts the plaintiffs were entitled to judgment for the balance thus ascertained.

3. Q. Can different persons owning separate tenements, unite in a suit to restrain a nuis ance, &c.?

4. In Brady agt. Weeks, 3 Barb., 157, Special Term, May, 1848, PAIGE, J., it was decided, that where a nuisance is a common, although not a joint injury, to several persons residing in the neighborhood, they may unite as plaintiffs to restrain the nuisance. But if the complaint or bill filed for that purpose, in addition to the prayer to restrain the nuisance, contains a prayer that the defendants may be decreed to pay the plaintiff's, respectively, the damages which they have sustained by the nuisance, it will be multi

farious.

In Reid and others agt. Gifford and others, 1 Hopk., Ch. R., 416, May, 1825, it was decided, by the CHANCELLOR, that the complainants being several proprietors of distinct lands, and of separate parts of the water course, have still, such a community of interests, as that they may join in a suit to restrain the diversion of the same. Although the rights of the general complainants to their respective lands are distinct, the grievance in question, is a common injury to all the complainants.

In Peck agt. Elder, 3 Sandf., 129, September, 1849, it was decided, by the CHANCELLOR, that where different persons owning separate tenements are injuriously affected by á nuisance, they may all join in a suit to restrain its continuance by injunction.

"Per contra." In Hudson agt. Maddison, 35 Eng. Ch. R., 352, it was decided, by the CHANCELLOR, that where a bill filed by several occupiers of houses in a town, to restrain the erection of a steam engine which would be a nuisance to each of them: that each occupier had a distinct right of suit, and therefore they could not sue as co-plaintiff's.