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 one within this state; if he has none, then to the infant himself, if over fourteen years of age and within the state, or, if under that age and within the state, to the person with whom such infant resides.

The latter of these sections is considerably modified by the two last amendments. In the act of 1849, the application for the appointment of the guardian of an infant plaintiff, might, if under fourteen, be made by any other party to the suit. These words are now stricken out, and the power of application given instead to the general or testamentary guardian, if any; and the provisions as to the notice to be given, if the application be made by a relative or friend, in any case, or by a party to the action, in the case of an infant defendant, are likewise new.

In the measures of 1848 and 1849, the applications for this purpose were expressly directed to be made by petition, which word is now struck out, and the general term application substituted. It seems to follow, as a necessary consequence, that this proceeding may now be taken by motion in all cases; and such might very probably be the construction adopted with regard to the appointment, on behalf of an infant defendant, where the substantive facts in relation to the infant's interest in the subject matter in controversy, appear already on the pleadings, and the facts iu relation to the actual appointment, and its preliminaries, are merely collateral, and may, therefore, with propriety, be shown by affidavit. The form of application by petition may, however, be adopted under any circumstances; and it seems by far the most expedient, in all, especially

The form of a petition for this purpose will be found in the Appendix, being substantially the same as that under the former practice.

Similar provisions to those above cited are contained in title II. chap. VIII. part III. of the Revised Statutes, 2 R. S. 446 and 447; they may, however, be looked upon as mainly superseded by those of the Code now under consideration.

Stringent restrictions are laid by the supreme court upon appointments of this description, under the recent rules. By rule 56, it is provided that

"No person shall be appointed guardian ad litem, either on the application of the infant or otherwise, unless he be the general guardian of such infant, or an attorney or other officer of this court, who is fully competent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian, who is not of sufficient ability to answer to the infant, for any damage which may be sustained by his negligence or misconduct in the defence of the suit."

In Cook v. Rawdon, however, 6 How. 233, it was held that the restrictions imposed by this rule, in relation to the guardian being of necessity the general guardian, or an attorney or officer of the court, are not applicable to a guardian for an infant plaintiff, but only as regards defendants.

The guardian for an infant plaintiff must, however, be a responsible person, for he is liable for costs, and this should be shown before his appointment.

An attorney or officer of the court, when so appointed on behalf of an infant defendant, is bound to act; and must examine into the circumstances, with a view to making a proper defence, when necessary; for which services he is to receive such compensation as the court may deem reasonable. Rule 55.

The mode of entering an order of this description, and the course of practice thereon, is thus laid down by Rule 57.

"An order for the appointment of a guardian ad litem, except in a partition suit, may be entered on filing the petition of the infant, if over fourteen years of age, or of some person on behalf of the infant, if under fourteen, together with the consent of the guardian, and the usual affidavit, and a certificate of a justice of this court, or county judge endorsed thereon, that he has examined into the circumstances, and that the guardian proposed is a suitable and proper person for such guardian, and has no interest in the suit in opposition to the interest of the infant."

The appointment of a guardian ad litem, in partition cases, takes place under the special directions for that purpose, in sec. II. title III. chap. V. part III. of the Revised Statutes, 2 R. S. 317, under which it is competent for any party interested to apply and obtain such an order on ten days' notice served upon the minor, or upon his general guardian, if resident within the state, but otherwise without notice; such guardian to represent, and his acts to bind the minor (sec. 3), and to give security as the court shall direct (sec. 4). In case no proper parties shall be willing to become security, the court of chancery might, in a suit, appoint its own officer without security, on notice to the minor or his guardian in all cases; Laws of 1833, chap. 277: and such power is doubtless now exercisable by the supreme court.

The course pointed out by the Code is so simple and easy that it evidently appears to be the most advisable in all cases, and that notwithstanding the alteration in sec. 116, above alluded to. The petition must, in the first instance, be duly signed and verified, and the written consent of the proposed guardian to serve must be subjoined. What is called the usual affidavit must accompany it, speaking to the particulars required by rule 56, and likewise as to the solvency of the guardian proposed.See Cook v. Rawdon, 6 How. 233, above cited. Where the infant is plaintiff, and money is sought to be recovered, a bond in double the amount, according to the form prescribed by rule 59, should be prepared, and should accompany the other papers. The certificate of a justice of the supreme court, or county judge,

Page 116, line 26.

This form of proceeding seems to be abrogated by the striking out of Rule 57, on the recent revision. The course will now be, to apply to the judge on the foregoing papers for an order, instead of a certificate; and to enter such order with the clerk in the usual manner.

for, and entered as an order of the court in the usual manner, and not as of course, in the mode above specified. Where there is any contest or doubt on the subject of the appointment, or where the court or judge applied to, thinks fit to prescribe that notice should be given, the same course of proceeding must be

adopted, and the application be made, in all cases, in the usual form, in the same manner as other motions in the cause.

The guardian, when appointed on behalf of a sole infant plaintiff, is responsible to the defendant for the costs of the suit, if the latter prevails. The contrary is the case as regards the guardian of an infant defendant, unless he be specially charged, by order of the court, for some personal misconduct in the cause.-V. 2 R. S. 446 and 447, sections 2 and 12. He may, however, receive costs and expenses allowed by the court to him out of the fund, or recovered by the infant in the suit-rule 58-but, beyond this, he cannot receive any money or property belonging to the infant, or awarded to him in the suit, without having first given security as above referred to.

It is not necessary to serve a copy of the order appointing a guardian on the opposite party, though it is competent so to do. The fact will of course appear on the pleadings by substantive allegation, either in the title or otherwise.

The guardian for an infant plaintiff must be appointed before summons issued. Where, accordingly, such appointment had been made, after issuing, but before service of summons and complaint, the latter were set aside as irregular.—Hill v. Thacter, 3 How. 407; 2 C. R. 3.

A judgment against an infant defendant by default, without the previous appointment of a guardian ad litem, was set aside on motion, without imposing terms, and with costs, in Kellogg v. Klock, 2 C. R. 28.

No consent of a guardian, on behalf of infants, will render valid a judgment against them, in the absence of legal proof, or any other irregular proceeding in the cause.-Litchfield v. Burwell, 5 How. 341. Nor is the responsibility of the guardian to the infant any answer to the objection.

Where a husband and an infant wife sue in respect of joint property, no appointment of guardian ad litem in respect of the latter is necessary, the husband appointing an attorney for both, and being responsible for the costs.-Cook v. Rawdon, 6 How. 233. See also Hulbert v. Newell, 4 How. 93.

Where, however, the suit is in respect of the wife's separate property, it would seem that the reverse is the case.--Cook v. Panages and Coit v. Coit, 6 How. 53, as before referred to. (See this subject heretofore examined under the head of Parties.)

BOOK IV.

OF THE FORMAL MACHINERY OF AN ACTION.

PROCEEDINGS in a regular action may be classified under two general divisions, viz.-First, the ordinary, and Second, the extraordinary; the former incident to all proceedings without distinction, the latter collateral, and adoptable or not, at the discretion of the parties.

The ordinary proceedings in a suit will not be entered upon here, but will be considered in the following portions of the work, in due order; and, with them, the essential characteristics of any interlocutory or extraordinary applications that may be necessary from time to time, will also be noticed. The present chapter will be exclusively confined to the mere formal proceedings incident to all such applications, and also to the progress of the cause, in a general point of view only, without regard to the merits, or the particular proceedings involved.

In most, if not all, of the practical works of a similar nature to the present, this dissociation of matters of pure form from matters of substance, has been more or less attempted, but with various differences in the mode of arrangement. In some, the consideration of interlocutory applications, in particular, is deferred to a supplemental chapter: in others, the same matter is introduced in an introductory form. Each method presents certain relative advantages. By the one, the student is enabled to enter upon the regular march of a suit, at once, without being detained by preliminary considerations; the other places him at once in preliminary possession of the required information on various points, for which he must otherwise be continually looking forward.

Allusions to different species of interlocutory remedies or formal proceedings occur, of necessity, in almost every page, in treating of the general progress of a suit; and it seems,