citor or counsellor, shall be admitted in proof, on any criminal prosecution against him for violating any of the provisions of this article. See further in note below, and supplemental note to § 142, post.

§ 113, p. 85-87.

The case of Person, Committee, &c., v. Warren, 14 Barb. S. C. R., 488, was an action by the committee of a lunatic, to set aside a bond and warrant of attorney executed by the lunatic, together with the judgment entered on such warrant: the defendants objected that the action should have been in the name of the lunatic, and not in the name of his committee. Taggart, J., after examining the cases prior to the statute of 1845 (Laws of 1845, cap. 112, p. 90), and the subsequent case of McKillip v. McKillip, 8 Barb. S. C. R., 552, says, "Aside from the provision of section 111 of the code, I can perceive no difficulty in determining that this action is properly brought in the name of the committee of the lunatic. It is an action brought for the purpose of setting aside an act or deed of the lunatic, and is, therefore, within the exception to the general rule respecting actions relating to the real or personal estate of the lunatic." Section 113 "preserves the right of the committee to sue in cases authorized by the act of 1845, but does not extend such right unless the committee shall be deemed to be'a trustee of an express trust." """I am inclined to think that section 111 of the code has changed the rule. The action is brought for the benefit of the estate of the lunatic. By the appointment of a committee, the lunatic 'loses none of his estate, rights of property, or rights of action.' The committee have no estate in their hands. They are regarded as mere bailiffs, acting under the direction of the court of chancery. The committee is not, then, the real party in interest, and cannot, under the provisions of section 111, prosecute this action. It remains to be considered whether the plaintiff is within the exception allowed by section 113. He is not an executor or administrator, or person expressly authorized by statute. This action was an exception to the general rule previous to the act of 1845, and was not included within the provisions of that act. That is the only statute authorizing the committee of a lunatic to maintain an action in his own name, as such committee, for the benefit of the lunatic or his estate; and as that confers no authority to bring this action, the plaintiff cannot avail himself of the provisions of section 113, which excepts from the operation of section 111 persons expressly authorized by statute. The committee cannot maintain this action in his own name,

unless he is to be deemed a trustee of an express trust." His Honor concluded that the plaintiff was a trustee, and says, "If a trustee, he is, of course, trustee of an express trust," and the action was properly brought in his name.

§ 114, p. 87.

Henderson v. Easton, 8 Pr. R., 201, was an action for money paid : the defendant, by answer in proper person, alleged that she "was at the time of the commencement of the suit, and still is, married to Frederic Easton, who is still living." The answer was signed by the defendant in person, and verified in the usual form. The plaintiff moved, on an affidavit of the facts, and on the pleadings, to take the defendant's answer from the files of the court, on the ground that the defendant had not appeared by her next friend or guardian. Mullett, J.-The only question involved in this motion is, whether the defendant, being a married woman, has a right to appear and defend this action in person. Whatever may have been the former practice on this subject, either in courts of law or equity, it is now governed by the code. His honor then refers to the 94th section of the code of 1848, and to 2 R. S., 3d ed., 204, § 38, to the several decisions on section 114, prior to its amendment in 1851; and, referring to the section as amended, he says, "The plain and simple reading of the section as amended in 1851, is that in all cases where a married woman is a party to an action, her husband must be joined with her, unless the action concerns her separate property, or is between herself and her husband; and that, in such cases, she shall prosecute or defend by her next friend." The decision, after referring to the cases of Heller v. Heller, 6 Pr. R., 194, and Meldora v. Meldora, 4 Sand. S. C. R., 42, and recapitulating the facts of the case then before the court, continues, "The answer is a felo de se, by her own showing; her husband ought to have been joined with her, or she ought to have answered by her next friend; she could not defend in her own name. The answer as it is, is a nullity, and might have been disregarded, and may, for the same reason, be taken from the files of the court."

This was certainly a most extraordinary decision:

1st. The judge assumed what was the only issue in the case; the coverture of the defendant.

2d. If the defendant was really a married woman, then the husband ought to have been joined as defendant, because the action was neither

one that concerned the wife's separate property, or one between herself and husband, which are the only two cases where the husband cannot be joined.

3d. A case not one of those in which the husband cannot be joined, is not within the amendment of the section; and if it is not a case where the husband cannot be joined, it must be a case where the husband can be joined; and if he can be joined, he should be joined. If the husband should be joined, and is not, there is a defect of parties; and that not appearing by the complaint, the proper mode of taking advantage of it is by answer. The assumption that the answer was true, should have been followed by a conclusion that the defect was in the complaint, and not the answer.

It is no answer to this to say, it does not follow that because the defendant was a married woman, therefore her husband should be joined with her, because it may be that the action would properly be against the husband alone. That is true; but the law does not presume in favor of a plaintiff that the party he has elected to sue is not a necessary party; on the contrary, it must presume as against the plaintiff that the party sued is a necessary party; and the party sued being a female, and alleging she has a husband living, the law requires that he be joined except in the two excepted cases.

Notwithstanding the decision in the case of Henderson v. Easton, we would advise that a married woman sued under circumstances similar to those in that case may put in an answer, in person, without a next friend, as under the practice prior to the code. 3 Taunton, 261.

By the common law, a married woman could not appear and answer in person; we are by no means satisfied, however, but that that disability has been removed by the revised statutes-" Every person of full age and sound mind may appear by attorney or solicitor, as the case may require, in every action or plea by or against him in any court; or may at his election prosecute or defend such action or plea in person. But this provision shall not extend to proceedings in criminal cases; nor shall any person be permitted to appear on the record in any civil cause in person whilst he has an attorney or solicitor in such cause." 2 R. S., 4 ed., 465, s. 19 [11].

If a feme-covert plaintiff is not an infant, or lunatic, &c., no order for leave to sue by next friend, or for the appointment of a next friend, is necessary. Towner v. Towner, 7 Pr. R., 387.

In an action to recover real property, when the wife is the owner of the fee and the husband tenant by the curtesy initiate, the husband

and wife may join in the action. Ingraham v. Baldwin, 12 Barb. S. C. R., 9.

In an action of ejectment, a person not in possession of the premises, although claiming an interest therein, is not a necessary party. Van Buren v. Cockburn, 14 Barb. S. C. R., 118.

The next friend of a married woman should be a man of substance; and if he is insolvent, the proceedings may be stayed a reasonable time till security is filed; and the complaint may be dismissed, if that is not done. Lawrence v. Lawrence, 3 Paige, 267; Fulton v. Rosevelt, 1 ib., 178; Robertson v. Robertson, 3 ib., 387; Remington v. Alvin, 1 S. & S., 264; Barlee v. Barlee, ib., 150; Anon., 1 Atk., 570; 1 Dan. Ch. Pr., 144; 3 Wend., 424; 3 Bac. Ab., 360; Andrew v. Craddock, 1 Eq. Cas. Ab., 72; S. C. Prec. in Chan., 376.

The next friend is liable for the costs of the action. (Mitford, 28; Randolph v. Dickerson, 5 Paige, 577; Andrew v. Craddock, 1 Eq. Cas. Ab., 72.) And in a case in England, one who had been made next friend without his knowledge, and had never heard of the suit until applied to for the costs, was held liable nevertheless. gett, 8 Eng. Law and Eq. R., 79.

Bligh v. Tred

How is the liability of the next friend to be enforced?

As, notwithstanding the case of Towner v. Towner, supra, it will still be necessary in some cases to apply to the court for an order for leave to sue by next friend, and for the appointment of next friend; the forms actually used in a case which came under the writer's notice are here given:

1st. Petition and Consent.

To the Honorable WILLIAM MITCHELL, one of the Justices of the Supreme Court of the State of New York.

The petition of M. S., of &c., respectfully shows:

That your petitioner is the wife of

- of &c.

That your petitioner is desirous of commencing an action in the supreme court of the State of New York, against C. D., for the recovery of real estate which he withholds from her, and which she claims as her separate estate.

Your petitioner therefore prays that A. B., of &c. [address and occupation], may, by an order of this court, be appointed the next friend of your petitioner, to commence the said action for her and in her

name.

And your petitioner, &c.
[Signed.]

M. S.

I hereby consent to be appointed the next friend of the above petitioner, and to bring suit for her as such.

Dated, &c.

[Signed.]

A. B.

IN THE SUPREME Court.

2d. Affidavit by next friend.

In the matter of the petition of M. S. for the appointment of a next friend. City and County of New York, ss. A. B., of &c., makes oath and says:

That he is worth $250, over and above all his debts and all lawful claims against him or his estate.

That the signature, M. S, to the petition hereto annexed, is in the proper handwriting of the said M. S.

That the signature, A. B., to the consent subscribed to said petition, is in the proper handwriting of this deponent.

In the matter of the petition of M. S., for the appointment of a next friend. On reading and filing the petition of M. S. for the appointment of A. B. as her next friend, in an action to be brought in this court against C. D., the written consent and the affidavit of the said A. B., I order that the said A. B. be, and he is hereby appointed the next friend of the said M. S., to appear for her in the action referred to in said petition.

WILLIAM MITCHELL,

A Justice of the Supreme Court.

Where an action concerning her separate property is commenced by a married woman in her own name only, if no objection on that account is taken by answer or demurrer, such objection is waived. Hastings v. McKinley, Court of Appeals, October, 1853.

A married woman may transfer a note belonging to her as part of her separate property, pending an action in her own name for its collection, and the purchaser, on motion, may be substituted, by order of the court, in her place as plaintiff. Ib.

Such order, unappealed from, cures the defect, if any existed, as to the party plaintiff. Ib.

After such transfer for a full consideration paid, and change of parties. by order of the court, the husband of the original plaintiff is a competent witness for the substituted plaintiff. Ib.

By laws of 1853, cap. 576, p. 1057, it is enacted that:

SEC. 1. An action may be maintained against the husband and wife jointly, for any debt of the wife contracted before marriage; but the execution on any judgment in such action shall issue against, and such judgment shall bind, the separate estate and property of the wife only, and not that of the husband.