to him; may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.

§ 455. Defendant so sued may apply for any relief. The joinder of a person, as defendant in an action, with another person, as prescribed in the last section, does not affect his right to any order or other relief, to which he would have been entitled, if he had been separately sued in the action.

§ 456. Proceedings in action against defendants severally liable. Where a summons issued against two or more defendants, alleged to be severally liable, is served upon some, but not upon all of them, the plaintiff may proceed against those upon whom it is served, as if they were the only defendants named therein. Where it is served upon all of them, the plaintiff may take judgment against one or more of them, where he would be entited to judgment, if the action was against him or them alone. Where judgment is so taken, the clerk must, upon the plaintiff's application, enter an order, directing that the action be severed, and that the plaintiff may proceed against the other defendants. In any subsequent proceeding, the plaintiff may use, together with a certified copy of such an order, a copy of a paper constituting a part of the judgment-roll, with like effect as if it was the original.

§ 457. Application of this article to defendants jointly liable. The last three sections do not affect a defence or other objection of a defendant, growing out of the failure to join in the action two or more persons jointly liable; and, as regards the other parties to the action, persons jointly liable are regarded as one party, for every purpose contemplated by those sections.

ARTICLE THIRD.

PARTIES PROSECUTING AND DEFENDING AS POOR PERSONS.

SECTION 458. Who may petition for leave to prosecute as a poor person.

459. Contents of petition.

460. When and how leave granted.

431. Not liable for costs and fees.

462. When leave may be annulled.

463. When defendant may petition to defend as a poor person.
464. Contents of petition.

465. Proceedings thereon.

466. Appeal, when party prosecutes or defends as a poor person.

467. Costs in favor of petitioner.

§ 458. Who may petition for leave to prosecute as a poor person. A poor person, whether an adult or infant, not being of ability to sue, who alleges that he has a cause of action against another person, may apply by petition to the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute as a poor person, and to have an attorney and counsel, assigned to conduct his action. [AM'D CH. 170 OF 1891; in effect Sept. 1, 1891.]

$459. Contents of petition. The petition must state:

1. The nature of the action brought or intended to be brought.

2. That the applicant is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family, and the subject matter of the action.

It must be verified by the applicant's affidavit, unless the applicant is an infant under the age of fourteen years, and in that case by the affidavit of his guardian appointed in said action, and supported by a certificate of a counselor at law to the effect that he has examined the case and is of the opinion that the applicant has a good cause of action. AM'D CH. 170 OF 1891 in effect Sept. 1, 1891.]

§ 460. When and how leave granted. The court to which the petition is presented, if satisfied of the truth of the facts alleged, and that the applicant has a good cause of action, may, by order, admit him to prosecute as a poor person, and assign to him an attorney and counsel to prosecute his action, who must act therein without compensation.

§ 461. Not liable for costs and fees. A person so admitted, may prosecute his action, without paying fees to any officer; and he shall not be prevented from prosecuting the same, by reason of his being liable for the costs of a former action, brought by him against the same defendant,* if judgment is rendered against him, or his complaint is dismissed, costs shall not be awarded against him.

§ 462. When leave may be annulled. If the person so admitted is guilty of improper conduct in the prosecution of his action, or of wilful or unnecessary delay, the court may, in its discretion, annul the order admitting him to prosecute as a poor person; and he shall thereafter be deprived of all the privileges conferred thereby.

§ 463. When defendant may petition to defend as a poor person. A defendant in an action involving his right, title, or interest, in or to real or personal property, may petition the court, in which the action is pending, for leave to defend the action as a poor person, and to have an attorney and counsel assigned to conduct his defence.

§ 464. Contents of petition. The petition must contain the same matters, respecting the ability of the petitioner, required to be contained in a petition for leave to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence.

§ 465. Proceedings thereon. The provisions of this article, relating to the order, to be made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply to the order and subsequent proceedings, upon an application for leave to defend as a poor

person.

§ 466. Appeal, when party prosecutes or defends as a poor person. An order, made as prescribed in this article, does not authorize the petitioner to take or maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal.

§ 467. Costs in favor of petitioner. Where costs are awarded in favor of a person, who has been admitted to prosecute or defend as a poor person, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and distributed among the attorney and counsel assigned to the poor person, as the court directs,

ARTICLE FOURTH.

INFANT PLAINTIFFS AND DEFENDANTS.

SECTION 468. Right of infant to bring action.

469. Guardian for infant plaintiff must be appointed.

470. Application therefor.

471. Application for appointment of guardian for infant defendant.
472. Guardian, how appointed. Clerk, when to act.

So in the original.

SECTION 473. Cuardian for absent infant defendant.

474. Guardian not to receive property until security given.
475. Security.

476. Last two sections not to apply to general guardian.

477. Liability of defendant's guardian for costs.

468. Right of infant to bring action. Where an infant has a right of action, he is entitled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy.

8469. Guardian for infant plaintiff must be appointed. Before a summons is issued in the name of an infant plaintiff, a competent and responsible person must be appointed to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof, except where such infant prosecutes as a poor person as provided for under section four hundred and fifty-nine of this act, in which case security for costs shall not be required. [AM'D CH. 170 OF 1891; in affect Sept. 1, 1891.

§ 470. Application therefor. The guardian must be appointed upon the application of the infant, if he is of the age of fourteen years, or upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative or friend, notice thereof must be given to his general or testamentary guardian, if he has one; or, if he has none, to the person with whom the infant resides.

§ 471. Application for appointment of guardian for infant defendant. [AMENDED BY CH. 542 OF 1879.] An infant defendant must also appear by guardian, who must be a competent and responsible person, appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section four hundred and fortyone of this act; or, if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person, other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State, or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State; or, if he is under that age, and within the State, to the person with whom he resides.

§ 472. Guardian, how appointed. Clerk, when to act. [AMENDED BY CH. 542 OF 1879.] The court in which the action is brought, or a judge thereof, or, if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. The clerk must act in that capacity for an infant defendant where the court or the judge appoints him. No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment.

$ 473. Guardian for absent infant defendant. Where an infant defendant resides out of the state or resides within the state and is temporarily absent therefrom, the court may, in its discretion, make an order designat ing a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the state upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred

and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. [AM'D CHS. 416 OF 1877 AND 494 of 1889.]

§ 474. Guardian not to receive property until security given. Except in a case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court.

§ 475. Security. The security must be a bond to th infant in such penalty as the judge directs, not less than twice the sun., r the value of the property, to be received, executed by the guardian and a last two sureties approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards apply for ander, directing a new bond to be given, with an increased penalty; or the court may so direct of its own motion.

§ 476. Last two sections not to apply to general guardian. The last two sections do not apply to the general guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article; but the court may, at any time, require the general guardian to give additional security for the faithful discharge of his trust, before receiving money or property of the infant, under a judgment or order in the action.

§ 477. Liability of defendant's guardian for costs. A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not liable for the costs of the action, unless specially charged therewith by the order of the court, for personal misconduct.

95

CHAPTER VI.

PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTERCLAIMS.

TITLE I. THE CONSECUTIVE PLEADINGS IN AN ACTION,

II.-PROVISIONS GENERALLY APPLICABLE TO PLEADINGS.

SECTION 478. First pleading to be complaint.

479. Copy complaint, when to be served.
480. Consequence of failure.

481. Complaint what to contain.

482. When interlocutory and final judgmen, may be demanded.

483. Causes of action to be separately stated.

484. What causes of action may be joined in the same complaint.

*485. When cause of action deemed single.

*486. When alternative legal or equitable judgment may be demanded.

§ 478. First pleading to be complaint. The first pleading, on the part of the plaintiff, is the complaint.

§ 479. Copy complaint, when to be served. [AMENDED BY CH. 416 of 1877.] If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint, within twenty days after he appears in the action.'

§ 480. Consequence of failure. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint.

Stricken out by Ch. 416 of 1877.