Heller agt. Heller

§ 134). The section (409) relative to service at the residence, does not apply to the service of a summons.

Before the Code, the committee of a lunatic defendant, not having interests adverse to the lunatic, could have an order appointing the committee guardian of course. And no notice to the opposite party was necessary when the committee applied (New v. New, 6 Paige, 237; 1 Barb. Ch. Pr. 86; Shelf. on Lun. 424). Indeed, in such cases, in England, no guardian, it would seem, is now necessary (Lady Hartland v. Atcherly, 7 Bearan, 53; 2 Dan. Pr. 870), By the Code, "when a married woman is a party, her husband must be joined with her, except that when the action concerns her separate property, she may sue alone; and when the action is between herself and her husband, she may sue or be sued alone. But where her husband can not be joined with her as therein provided, she shall prosecute or defend by her next friend" (§ 114).

Where he is not a coplaintiff or a codefendant, it seems, she must now always, prosecute or defend by prochien ami. The alteration of § 114 by the amended Code of 1851, seems to have settled the practice which was mooted in Shore v. Shore, 2 Sandf. 715;; Tippel v. Tippel, 4 How. Pr. R. 346; and Coit agt. Coit, 6 id. 53; same case, 4 id. 232.

Where no committee had been appointed, a person of unsound mind, before the Code, defended by a guardian ad litem (Shelf. on Lun. 425; Wilson v. Grace, 14 Ves. 172; Mitf. 104; Stor. Eq. Pl. § 70; 1 Dan. Pr. 203; 1 Barb. Pr. 86). But whether notice of the application should be given to the opposite party, in such cases does not seem to be well settled. No notice is taken of the appearance of counsel for the plaintiff in the reports of the cases of Wilson vs. Grace, supra; Markle vs. Markle (4 J. C. R. 168); Att'y Gen. vs. Waddington (1 Mad. R. 321); nor in Howlett vs. Wilbraham (5 id. 423). It is said in this last case, that the plaintiff moved; but it appears by Daniel's Practice that the motion was on the part of the defendant (1 Dan. Pr. 203). But it does not appear that notice was not given in the above cases; and in Pryce vs. Page, there was an appearance for the

Thumb agt. Walrath.

plaintiff (1 Mad. R. 321). Where the complaint does not state that the defendant is a lunatic, I am inclined to think, notice of the application to appoint a guardian should be given, particularly in a matter so important to the parties as a suit for a divorce a vinculo. The plaintiff should have an opportunity to know why the suit is defended by a guardian instead of the party. In this case, the defendant being a feme covert, must, as we have seen, appear by a next friend. The next friend for a feme covert plaintiff, in ordinary cases, acts by her consent (Fulton v. Rosevelt, 1 Paige, 180). But a lunatic can not consent. However, a plaintiff may apply for the appointment of a guardian ad litem for a lunatic defendant (Shelf. on Lun. 426); and a relative did so, in Markle vs. Markle, supra. The next friend, required by the Code, stands in the place of the former guardian ad litem, and should be appointed in the same way.

But notice of the motion should have been given, unless the complaint alleges that the defendant is insane, in which case, that should be made to appear before the motion can be granted ex parte. Order refused.

SUPREME COURT.

THUMB agt. Walrath.

An answer, commencing as an answer to the whole complaint, and assuming to answer the whole, but containing facts which only constitute a defence to a part of the complaint, is bad, on demurrer.

Montgomery Special Term, June 1851. The complaint is ejectment for a piece of land, described by metes and bounds, containing thirty-two acres; being the same lot purchased by the plaintiff of Adam I. Walrath.

The second defence set up in the answer is to the whole complaint, that at the time the plaintiff purchased of Adam I. Walrath the defendant was in possession of three and a half acres of the premises, being parcel of the premises mentioned in the complaint,

Thumb agt. Walrath.

as tenant at will under said A. I. W., and that before he, the plaintiff, so purchased, the defendant had sowed the said three and a half acres with wheat and rye, and that said grain was not, at the commencement of this suit, fit to harvest, but still remained growing. That the plaintiff, when he purchased, well knew said fact.

The plaintiff demurs to the second defence, assigning for cause, that it does not state facts enough to constitute a defence; and, amongst other things, that the defendant does not state that he has received notice to quit, &c.

H. BAKER, for the Defendant.

J. A. SPENCER, for the Plaintiff.

WILLARD, Justice.-The second defence in this action, or, as we should call it in former times, the second plea, commences as an answer to the whole complaint, and assumes to answer the whole, by showing that the defendant was rightfully in the possession of three and a half acres, parcel of the thirty-two acres of land, to recover which the action was brought. This is no answer to the whole action, and consequently upon well settled rules of pleading, the answer demurred to is bad (1 Chitty Pl. 510; 1 Saund. 28, n. 3; Cooper vs. Embry, 1 Wen. 347; Root vs. Woodruff, 6 Hill, 421). It does not help the matter that the defendant has put in a complete answer to the whole complaint in his first defence. The two answers must each stand by itself, and one can not aid the other. The defendant should have interposed an appropriate answer as to all but the three and a half acres; and, as to that part of the premises, set out his defence. If it be granted that a tenant at will, who has put in a crop, is entitled to retain possession until the time of harvesting the crop has arrived, it by no means follows that he is entitled to retain the possession of the whole farm. It is enough that he has the necessary egress and regress to protect the crop while growing, and to take it off when it has come to maturity (see 4 Kent Com. III). The demurrer is well taken to the second defence, but the defendant is entitled to amend on payment of $22 costs.

Ball agt. Syracuse and Utica Rail Road Co.

SUPREME COURT.

BALL agt. THE SYRACUSE AND UTICA RAIL ROAD COMPANY.

A justice of this court, at special term, has power to hear and decide a motion for a new trial, on the ground that the verdict is against evidence (Lusk agt. Lusk, 4 How. 418; Haight agt. Prince, Sandf. S. C. R. 720). But the case must be reserved under § 264, or the proceedings be stayed under § 265. If the judgment is suffered to become final under the latter section, the motion can not be entertained.

Madison Special Term, October 1851. This cause comes up on a case made to set aside the verdict of the jury. The cause was tried in December last at the Madison circuit, and resulted in a verdict for the plaintiff, upon which a judgment was entered. There was no order granted under § 264 of the Code, reserving the case for argument or further consideration and there was no stay under § 265.

BARLOW & SNOW, for Plaintiff.

S. T. FAIRCHILD, for Defendant.

MASON, Justice.-I have no doubt but Justice GRIDLEY was right in the case of Lusk agt. Lusk and others (4 How. Pr. R. 418), in holding that a justice of this court, at special term, had power to hear and decide a motion for a new trial on the ground that the verdict is against evidence; and such was the decision of the Superior Court of the city of New York in the case of Drag vs. Lakey & Pine, (2 Sanf. S. C. R. 681,) reaffirmed in Haight vs. Prince (2 id. 720).

There is no doubt in my mind, however, that to authorize a justice of this court to set aside the verdict of a jury at special term as against evidence, the case must be reserved under the 264th section of the Code, or else the proceedings must be staid under section 265. Otherwise the judgment by the latter section becomes final after four days. I do not think that after the judgment has been entered and becomes final, as it does after the four days, that the judgment can be reviewed in any other way than that prescribed by title 11 of the Code, and which is by appeal

Tomlinson agt. Van Vechten and others.

to the general term; and such is the decision in the case of Drag vs. Lakey & Pine (2 Sanf. S. C. R. 681). The judgment in this case having become final, I must deny the motion for a new trial and leave the defendant to pursue such remedy as he may have, either by appeal from this order to the general term or by appeal from the judgment-the latter of which seems to be a doubtful remedy if the decision of this court in the case of Collins agt. The Albany and Schenectady Rail Road Company (5 How. Pr. R. 435), is to be followed. Motion denied with costs.

SUPREME COURT.

TOMLINSON agt. Van Vecthen anD OTHERS.

A defendant has twenty days to appear and answer, after the expiration of the time prescribed by the order for publication of the summons.

The same rule applies in cases of publication, where service has been personally made out of the state.

Erie Special Term, August 1851. Application for judgment upon the failure of the defendants to answer.

The service was made by the publication of the summons pursuant to an order made by a judge, as provided in section 135 of the Code. Twenty days had not elapsed, after the time prescribed in the order for the publication of the summons, when this application for judgment was made.

MR. CUTTING, for Plaintiff.

MARVIN, Justice.-The application is premature. The defendants have twenty days within which to appear and answer, after the expiration of the time prescribed by the order for publication. The service of the summons is not complete, until the expiration of that time (Code, § 137).

I have also held, in cases where the publication of the summons had been ordered, and service of a copy of the summons and complaint had been personally made, out of the state, that the defendant had twenty days to appear and answer, after the