Death of executor defendant. Marriage of feme defendant. power as such, the plaintiff' in such suit may proceed therein, against such executor or administrator, in order to charge him personally; but no judgment recovered therein, after such revocation or superseding, shall be binding, or be of any force, as against the estate of the testator or intestate, or any person succeeding to the administration of the same estate."1 "If the plaintiff shall not elect so to proceed against such executor or administrator, the court, in which such suit may be pending, on the application of the plaintiff therein, and after reasonable notice to the person succeeding to the adminis tration of the same estate, may, by rule of court, substitute the person so succeeding, as defendant in such suit, and such suit shall thereafter proceed to final judgment, in like manner as if it had been originally commenced against the person so substituted."15 "In case of the death of an executor or administrator, during the pendency of a suit against him, the court may in like manner substitute the person succeeding to the administration of the same estate, as defendant in such suit, with the like effect."'16 The marriage of a feme defendant does not abate the suit, and the plaintiff may proceed to execution, without noticing the husband." But it is provided by statute, that "if a female defendant marry at any time before verdict rendered, or before interlocutory judgment, her husband may, on his own application, or on the application of the plaintiff, be made a co-defendant on the order of a judge of the court; but if such husband be made a defendant on the application of the plaintiff, he shall have the same right to contest the fact of his marriage, as if the suit had been originally brought against him as husband of such female defendant."18 14 Th. s. 15. 15 Ib. s. 16. 16 Ib. s. 17. p. 116. 1 Bac. Abr. 16. Str. 811. 4 East. 17 Com. Dig. Abatement, H. 42. Vol. 2. p. 388. The marriage of a feme plaintiff, during the pendency of the Marriage of action, would formerly have abated the suit.19 But in the revised statutes it is now provided, in order to avoid the necessity of commencing a new action, that "if a female plaintiff marry at any time while her action is pending, her husband may, on his application, be made a co-plaintiff with her, on the order of a judge of the court in which the action is pending, to be granted, on due proof of the marriage, and after notice to the female plaintiff, and to the defendant and upon an entry thereof being made on the record, such action shall proceed in the names of the husband and wife." 1120 The following provisions from the same title of the revised statutes were intended to obviate the necessity of the tedious proceeding by scire facias, formerly requisite in each of the cases specified :21 feme plaint tiff. of marriage "If a female plaintiff in any action marry after verdict ren- Suggestion dered, or after interlocutory judgment, and before final judg-after verdict, ment, a suggestion of the fact of such marriage may be entered on the record, and the final judgment shall be rendered in her name, and that of her husband."22 "If a female plaintiff marry after final judgment, but before execution issued, a like suggestion of the fact shall be entered on the record, and an award of execution shall be made in her name, and that of her husband."23 "In the cases mentioned in the two last sections, an order of the judge of the court in which such action shall be pending, shall be necessary to enter the suggestions, and award execution, as therein provided."24 1 Chitty on Plead. 437. 635. 1 Bac. Abr. 16. 2 Wheaton, 11. "R. St. ib. s. 12. See Revisers' Reports, Chap ter 7 of Part 3. p. 4. 2 Tidd. Pract. 22 R. St. ib. s. 8. p. 387. 23 Ib. s. 9. 24 Ib. s. 10. p. 388. Death or removal of "Such order shall be granted upon the application of the husband of such female plaintiff, on due proof of the marriage, and after reasonable notice to the defendant and to the female plaintiff to show cause against granting the same.' 1925 Where an action is authorized or directed, by law, to be trustee, &c. brought by or in the name of a public officer, or by any trustee appointed by virtue of any statute, it is provided that his death or removal shall not abate the suit, but that the same may be continued by his successor, who shall be substituted for that purpose by the court; and that a suggestion of such substitution shall be entered on the record.26 25 Ib. s. 11. 26 Ib. s. 14. In the first part of the Revised Statutes, Chap. 14, "Of Public Health," Title 5, containing "General Provisions applicable to the city of New York," it is provided that "no suit that shall be brought by the board or the com missioners of health, or the health officer, in their respective names of office, in pursuance of the authority given in this chapter, shall abate on account of the death of the officer or officers by whom the same shall be commenced." Vol. 1. p. 447. s. 5. CHAPTER XVI. OF PROCEEDINGS AND ACTIONS IN PARTICULAR CASES. SECTION I. OF THE PROSECUTION AND DEFENCE OF ACTIONS BY NEXT FRIEND AND GUARDIAN. Right of infants to bring It is provided by statute, that "when an infant shall have any right of action, to recover real property, or the possession suits. thereof, or to recover any debt or damages, he shall be entitled to maintain a suit thereon; and the same shall not be deferred or delayed, on account of such infant not being of full age.' It is likewise provided, that "before any process shall be Next friend issued in the name of an infant, who is sole plaintiff in any ted. suit, a competent and responsible person shall be appointed to appear as next friend for such infant in such suit, who shall responsible for the costs thereof."2 be to be appoin pointment If the action be intended to be brought in the supreme court, How apthe appointment of a next friend may be made by a justice of made. 'R. St. P. 3. Ch. 8. T. 2. s. 1. 2 Ib. s. 2. p. 446. Vol. 2. p. 445. VOL. II. 28 3 the supreme court, a circuit judge, or a supreme court commissioner; if intended to be brought in any other court of common law, by a judge of such court. The appointment is made on the petition of the infant, and the written consent of the person proposed to be the next friend, duly acknowledged before, or proved to, the officer making the appointment.* Before any person can be appointed next friend for an infant, in any suit to recover any debt or damages, he must, if required by the officer to whom application for such appointment is made, execute a bond to such infant, in a penalty at least double the amount claimed in such suit, with such sureties as shall be approved by such officer, conditioned that such next friend shall duly account to such infant, for all monies which may be recovered in such suit.5 It is further provided, that "such bond shall be delivered to such officer before the appointment shall be made, and shall be by him filed in the office of the surrogate of the county in which such infant resides; and such officer shall be entitled to demand and receive from such next friend, the fee allowed to the surrogate for filing such bond, to be paid to him." The order for the appointment of a next friend must be filed in the office of a clerk of the court before any declaration or bill is filed in the cause." The following statutory provisions, from the same title, relate to the appointment of guardians for infant defendants: "After the issuing of process against any infant defendant, by which he shall have been arrested, the suit shall not be any further prosecuted, until a guardian for such infant be appointed." "Such appointment shall be made upon the request of such defendant, and on the written consent of any competent person proposed as guardian, by any judge of the court, or by |