and interests, not subject to an execution at law, are sought to be reached, then the aid of a court of equity must be invoked.

178. A contract of a married woman guarantying the covenant of a third person, is not calid at law.

179. A promissory note made by a married woman, does not import a consideration, and is not per se negotiable.

180. The legislature have removed certain disabilities pertaining to a married woman, but it has not yet, in terms, permitted her to exchange notes as a matter of friendly accommodation.

181. The acts of 1860-2, have not permitted a married woman to give an accommodation note; and the person taking such a note, even bona fide, and for value, cannot recover upon it, against her.

182. The acts of 1860-2, do not relieve the husband from liability for the debts of the wife, contracted before marriage, or for her torts, whether committed before marriage or during coverture.

183. The acts of 1860-2, do not abrogate the common law rule or provision of the Code, which requires that the husband be joined with the wife in actions against her for her debts contracted before marriage, or for her torts.

184. In an action of libel against a married woman, her husband must be joined as a party defendant with her.

185. The power conferred upon married women to devise real and personal estate by the act of April, 1849, was not repealed by the act of 1860.

186. A married woman cannot be held to bail in an action of assault and battery. 187. The common law still controls the relations and rights of husband and wife, except where those rights have been modified or changed by statute.

188. There was no statute in this state giving a married woman the right to perform labor or services on her sole and separate account, until that of 1860.

189. The statute of 1860 does not operate to divest a husband of his right to the wife's earnings previously rendered.

190. The common law rule as to the disability of husband and wife to sue each other, at law, is not changed by the act of 1862.

191. A wife cannot maintain an action against her husband, to recover damages for slander.

192. A married woman cannot sue her husband in an action for assault and battery. 193. Under the statutes a married woman may acquire the title to personal property by grant or purchase.

194. A married woman may purchase personal property in any of the ordinary modes known to the law, or to the course of business.

195. A married woman may make purchases of personal property for cash, or she may buy on her own credit.

196. A married woman may make purchases of personal property by herself in person, or by her authorized agent; and her husband may be such agent.

197. The trade or business of a married woman, while it is carried on in her own name, or for her own benefit, may, like all other trades and business, be conducted by herself personally, or through the instrumentality of others. And she may make her husband her agent to conduct such business.

198. At common law, the mother could not maintain an action for the seduction of her daughter, while the father was living.

199. Under the statutes, where a husband has abandoned his wife and family and resides in another state, the wife, owning a house, and being engaged in the business of keeping boarders, on her sole and separate account, may sue alone, for the seduction of her daughter, over twenty-one years of age, who resides with and performs services for

her.

200. A married woman having a right under the statutes, to keep a boarding house on

her own account, a right of action accrues to her for an injury to her servant, equally as if she were unmarried. And she may sue in her own name without joining her husband with her.

201. The common law disability of a married woman to bind herself by a submission to arbitration, was removed by the acts of 1860 and 1862.

202. A married woman cannot sue her husband at law. Therefore, she, living apart from her husband, cannot maintain an action of ejectment to recover leasehold premises which are her separate property, and of which he holds possession. (DALY, J., dissented.)

203. (12 Q.) Under our statutes, an infant feme covert may execute a deed of trust of her real estate, (although it is probably now unnecessary in any case), and on arriving at majority, may execute a deed of revocation of the trust, and thereby convey by deed absolutely, such real estate, without joining her husband in either.

204. The disability of a married woman to convey her separate estate is now removed, it follows, necessarily, that she can disaffirm her voidable deed of trust, executed while an infant.

205. Under our statutes, the rights of husbands at common law, to the personal, and the use of the real property of the wife, are gone; and they have no estate or interest, or right whatever, absolute or contingent, except that upon the death of the wife after issue born, without exercising the jus disponendi, he has an estate for his life as tenant by the curtesy.

206. (13 Q.) By giving to the wife and next of kin, a right of action for compensation for the pecuniary injuries resulting to them from the death of the husband and relative, our statutes of 1847-9, in effect, declare a right in the life of a person to exist in his wife and next of kin, and make the wrongful act, neglect or default, by which his death shall be occasioned, tortious as to them.

207. An action brought under the statutes of 1847-9, cannot be maintained if the collision and death occurred in the open sea, beyond the territorial limits of this state, for there such statutes have no force or effect. Acts complained of as tortious, must be such at the place of commission.

208. (14 Q.) A married woman has capacity under the acts of 1848-9, and irrespective of the act of 1860, to purchase a stock in trade, business and good will, by executing a mortgage on her own separate real estate, and to recover for work, labor and services done and performed, and materials furnished by her in the course of such business.

209. (15 Q.) Where a husband, before the passage of the acts of 1848-9, was indebted to his wife for a loan of money-being her separate property, and continued so indebted after the passage of those acts, it was held, that equity would hold him to be her trustéo for the amount, and allow him to pay her the same, upon his becoming insolvent, in the same manner that he might pay any other creditor. (J. C. SMITH, J., dissenting.)

210. Whenever a husband has received or borrowed the property of his wife, under circumstances which, in a court of equity, would be regarded as creating a debt to her, from him, and as entitling her to be considered and treated as his creditor therefor, he will be allowed to pay such debt from his property, in the same manner and upon the same principles, on which he would be allowed to pay any other debt, to any other creditor. (J. C. SMITH, J., dissenting.)

211. (16 Q.) An oral agreement to marry, and pay the then existing debts of the proposed husband, in consideration that he convey to the proposed wife certain premises, of which he is the owner, if fully performed by the wife, is valid and binding in equity upon the husband; and the conveyance made in pursuance of such agreement is upon a good and sufficient consideration. And a judgment creditor of the husband, who became such subsequent to such agreement, but who obtained judgment prior to the conveyance to the wife, cannot impeach such conveyance.

212. (17 Q.) The husband or wife of any party to any action or proceeding, or of any person in whose behalf any such action or proceeding is brought, prosecuted, opposed

or defended, is competent, and may be compelled to give evidence, the same as any other witness, on behalf of any party to such action or proceeding, except as stated in 213 and 214, below.

213. Any husband or wife shall not be compelled to give evidence for or against the other in any criminal action or proceeding, (except to prove the fact of marriage in case of bigamy), or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery (except to prove the fact of marriage), or in any action or proceeding for or on account of criminal conversation. 214. No husband or wife shall be compellable to disclose any confidential communica. tion made by one to the other, during their marriage.

§ 115. Infant to appear by guardian.

When an infant is a party, he must appear by guardian who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.

1. Question. Has this section been amended since its passage in 1848 1 Answer. It has, in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

§ 95. [1848.] When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof.

3. Q. When should the appointment of a guardian for an infant party be made?

A. In Moody agt. Gleason, 7 Cow., 482, General Term, October, 1827, it was decided by the COURT, that the common pleas may appoint guardians for infants on appeal, though none were appointed in the justices court.

In Fish agt. Ferris, 3 E. D. Smith, 567, General Term, December, 1854, INGRAHAM, J., it was decided, that pending an appeal from the marine or a district court, when one of the parties to the action is ascertained to be an infant, this court, upon the application of the other party, as well as upon the infant's request, will appoint a guardian ad litem, where none has been appointed by the justice. The application will be heard at special term. The appointment, however, in the absence of any special cause for immediate action, will not be made until the return is filed.

In Kellogg agt. Klock, 2 Code, R., 28, Special Term, August, 1849, GRIDLEY, J., it was decided, that the taking judgment against an infant, as for want of an answer, without the appointment for him of a guardian ad litem, is an irregularity; and the judgment will be set aside on motion. It is the law of the land, as well as the practice of the court, that an infant defendant cannot regularly appear except by guardian; nor can he be regularly prosecuted after an appearance is necessary, until such guardian has been appointed; and a judgment rendered against an infant defendant, without such appointment, will be set aside as irregular. Under the former practice in chancery, it was customary for the guardians to put in a mere general answer submitting the rights of the infant to the court. But where the circumstances rendered a special answer necessary, the guardian was bound to make it. (Knickerbacker agt. De Forest, 2 Paige, 304), and the court would take care that the rights of the infant were not prejudiced by the answer put in. (Barret agt. Oliver, 7 Gill and John., 191.) The answer was termed the answer of the guardian, and not of the infant (Rogers agt. Cruger, 7 John., 581); for which reason the infant was not bound by the answer, and might, where his interests required it, put in a further answer on coming of age. (See 1 Barb., ch. Pr. 149.)

In Halbert agt. Hulbert, 13 How., 413, General Term, December, 1856, E. DARWIN SMITH, J., it was decided, that the Code by requiring suits by infants to be brought and defended exclusively by guardian has got rid of the name "prochein ami," but it has not at all changed the law requiring the pleadings to show, by proper averments, the due appointment of the guardian by the court or judge. The complaint must state how the guardian is appointed, whether specially appointed by the court, or otherwise. This is

$ 115.]

PARTIES BY GUARDIAN.

traversable fact, and must be so stated that it may be traversed. It is a case where there is a legal disability to sue, wtthout the express authority of the court.

In Fisher agt.. Stilson, 9 Abb., 33, General Term, July, 1859, BALCOM, J., it was decided, that there is no statute that authorizes the appointment of a guardian for an infant to appear for him in a controversy without action. This section clearly shows that there must be an action, to give the court or judge jurisdiction to appoint a guardian for an infant in a legal or equitable controversy.

In Treadwell agt. Bruder, 3 E. D. Smith, 597, General Term, December, 1854, WOODRUFF, J., it was decided, that if infancy is to be alleged, it should be pleaded in abatement of the suit, or should be presented on a proper motion to set aside the proceedings for irregularity in respect to the appointment of a guardian or next friend. It cannot be proved as a ground of non-suit on the trial.

In Rogers agt. McLean, 10 Abb., 306, Special Term, April, 1860, ALLEN, J., It was decided, that a guardian ad litem, will not be appointed on the application of a relation of a lunatic, when the summons has not been served on the lunatic.

In Anable agt. Anable, 24 How., 92, Special Term, November, 1861, PECKHAM, J., it was decided, that in an action for divorce for adultery by an infant plaintiff, the complaint is properly verified by her guardian. For this purpose he may be regarded as the plaintiff or a plaintiff. And he verifies it in such a case as a party not as agent or attorney of

the party.

In Freyberg agt. Pelerin, 24 How., 202, Special Term, September, 1862, LOTT, J., it was decided, that an infant plaintiff cannot commence an action without the appointment of a guardian. And where such an action is commenced without such appointment, the defendant may move to set aside the surmons, and complaint, &c., for irregularity. He is not confined to his remedy by answer in the nature of a plea in abatement.

In People ex. rel Delemater agt. Wamsley, 15 Abb., 323, Special Term, June, 1862, WELLES, J., it was dicided, that under 2 Revised Statutes, 153, section 17, which pro vides that on the removal of a guardian, the surrogate may proceed and appoint a new guardian, the new appointment is to be made by the surrogate, whose order of removal created the vacancy, without regard to the residence of the infants. The legislature intended to confine the power of appointing the new guardian to the same surrogate who removed the one whose place is to be supplied. It is in the nature of a continuous proceeding, before the same officer, who having once acquired jurisdiction to appoint a guardian for the minor, is not to be ousted of it by the removal of the minor to another county. The infant coming of age pending the action, does not render any change in the title necessary.

In Boylen agt. McAvoy, 29 How., 278, Special Term, May, 1865, JOHNSON, J., it was decided, that where an infant defendant in an action of tort, appears by attorney and puts in an answer, and a trial and verdict is had, the plaintiff cannot then be allowed on motion, to have a guardian ad litem for the infant appointed as of the time of his appearThe plaintiff, under his general prayer for relief, may have an order striking out the defendant's appearance and answer by attorney, and vacating all subsequent proceedings, including the verdict, without costs.

ance.

What is the result of the decisions under this section?

1. (3 Q.) In the old common pleas it was held, that the court might appoint guardians for infants ou appeal, though none were appointed in the justice's court.

2. Pending an appeal from the marine or a dtstrict court to the New York Commoa Pleas, the latter court, upon the application of the other party, as upon the infant's request, will appoint a guardian ad litem, where none has been appointed by the justice.

3. The application for the appointment of a guardian ad litem, pending an appeal, should be heard at special term. In the absence of any special cause for immediate action, the application will not be made until the return is filed.

4. The taking judgment against an infant as for want of an answer, without the appointment for him of a guardian ad litem, is an irregularity; and the judgment will be set aside on motion.

5. It is the law of the land, as well as the practice of the court, that an infant defendant cannot regularly appear except by guardian.

6. An infant cannot be regularly prosecuted, after an appearance is necessary, a guardian ad litem has been appointed.

until

7. The practice in chancery was, for the guardian to put in a mere general answer submitting the rights of the infant to the court; but where the circumstances rendered a spe cial answer necessary, the guardian was bound to make it, and the answer was termed the answer of the guardian, and not of the infant, the infant not being bound by it, but might, where his interests required it, put in a further answer on coming of age.

8. The Code, by requiring suits by infants to be brought and defended exclusively by guardian, has got rid of the name prochein ami; but the pleadings must still show by proper averments the due appointment of the guardian by the court or judge.

9. The complaint must state how the guardian of an infant is appointed, whether specially appointed by the court or otherwise. This is a traversable fact, and must be so stated that it may be traversed.

10. There is no statute that authorizes the appointment of a guardian for an infant to appear for him in a controversy without action.

11. This section (115) shows that there must be an action, to give the court or judge jurisdiction to appoint a guardian for an infant in a legal or equitable controversy.

12. If infancy is to be alleged, it should be pleaded in abatement, or be presented on a motion to set aside the proceedings for irregularity in respect to the appointment of a guardian or next friend.

13. Infancy cannot be proved as a ground of non-suit on the trial.

14. A guardian ad litem will not be appointed on the application of a relation of a lunatic, when the summons has not been served on the lunatic.

15. In an action by an infant plaintiff, for divorce for adultery, the complaint is properly verified by her guardian. And the verification is deemed to be made by the party, and not by her agent or attorney.

16. An infant plaintiff cannot commence an action without the appointment of a guardian..

17. Where an action is commenced by an infant plaintiff, without the appointment of a guardian, the defendant may move to set aside the summons and complaint for irregu larity.

18. Whenever a suit is commenced by an infant plaintiff, without the appointment of a guardian, the defendant is not obliged to put in an answer in the nature of a plea in abatement, but may resort to a motion to set aside the proceedings for irregularity.

19. Under the Revised Statutes providing for the removal of a guardian of infants, the surrogate may proceed and appoint a new guardian, without regard to the residence of

the infants.

20. The legislature intended, by the provisions of the Revised Statutes, to confine the power of appointing the new guardian for infants, to the same surrogate who removed the one whose place was to be supplied.

21. A surrogate having once acquired jurisdiction to appoint a guardian for an infant, is not to be ousted of it by the removal of the infant to another county.

22. Where the infant comes of age pending the action, it does not render any change in the title necessary.

23. The appearance of an infant defendant in an action of tort, by attorney, and putting in an answer, and a trial and verdict had, the plaintiff cannot then be allowed on motion, to have a guardian ad litem appointed for the infant, as of the time of his appear

ance.

24. A plaintiff, under his general prayer for relief, may have an order striking out the defendant's appearance and auswer by attorney, and vacating all subsequent proceedings, where a trial and verdict has been had against an infant defendant, without the appointment of a guardian.