Next friend to be appoint 1287:191 By whom. Upon what papers, &c. When bond may be re- When to bo Order to be Guardian for How appointed. ges, 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. 3 $2. Before any process shall be issued in the name of an infant, who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as next friend for such infant in such suit, who shall be responsible for the costs thereof.1 $3. Such appointment shall be made as follows: 1. If the suit is intended to be brought in chancery, by the chancellor, a vice-chancellor or any master: 2. If intended to be brought in the supreme court, by a justice thereof, circuit judge, or supreme court commissioner: 3. If intended to be brought in any other court, by a judge of such court. S4. It shall be made on the petition of the infant, and the written consent of the person proposed to be next friend to such infant, duly acknowledged before, or proved to, the officer making the appoint ment. $5. Before any person shall be appointed next friend for an infant, in any suit to recover any debt or damages, he shall, if required by the officer to whom application for such appointment shall be 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. $6. 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. $7. The order for the appointment of a next friend, shall be filed in the office of a clerk of the court, before any bill or declaration shall be filed in such cause. $8. 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. S9. 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 any judge or commissioner authorised to perform the duties of a judge of such court, in vacation; and shall be filed in the office of a clerk of the court, before any plea by such infant shall be filed. (3) 1 R. L. p. 87, § 25. (4) Ib. p. 416, § 2. Proceedings § 10. If such infant defendant neglect, for twenty days after the ART. 1. return day of the process by which he was arrested, to procure the appointment of a guardian to defend the suit, the plaintiff may obtain to compel. an order from a judge of the court, requiring such infant to procure the appointment of a guardian, within ten days after service of such order. $ 11. If a guardian be not appointed within the time specified in 16. such order, the judge or officer granting the same, shall appoint some discreet person to be guardian for such infant, in the defence of such suit. costs. $12. No person appointed guardian for the purpose of defending a Liability for suit against an infant, shall be liable for the costs of such suit, unless specially charged by the order of the court for some personal misconduct in such cause. TITLE III. {See on the same subject, Title 5, ch. 6, 2nd part.] OF SUITS BY AND AGAINST EXECUTORS AND ADMINISTRATORS, AND ante, p. 113, AGAINST HEIRS DEVISEES AND LEGATEES. ART. 1. Of suits by and against executors and administrators. ARTICLE FIRST. Of Suits by and against Executors and Administrators. SEC. 1. Actions for wrongs may be brought by and against executors, &c. 2. Certain actions excepted from last section. 3. Executors, &c. not to be held to bail, except for waste. 4. Nor then without special order. 5. Appearance by one of several executors, &c. 6. Effect of judgment upon executors, &c. not appearing. 12. Judgments against exccutors not to bind real estate of testator, &c. 14. How far their inventory may be rebutted by proof. 15. For what demands, executors, &c. to be liable. 16. Executors, &c. not to be deprived of proofs they may now make. wrongs. $1. For wrongs done to the property, rights or interests of another, Actions for for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. TITLE 3. Exceptions. Holding to bail. order. 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. $ 3. No executors or administrators shall be held to bail, in any action against them, in their representative character, unless such action be brought to charge them with waste. Ib. on special $4. Nor shall they be held to bail in such action, unless upon an order of a judge of the court in which such action shall be brought, founded upon an affidavit of the facts and circumstances to support such charge. Appearanco by one of so tors, &c. $5. In actions against several executors or administrators, they veral execu- shall all be considered as one person representing their testator or intestate; and such of them as shall be first served with process, ог as shall first appear in the action, shall answer the plaintiff. Judg ment shall be rendered, and in the cases where execution may be issued against the property of the testator or intestate, it shall be awarded against such as shall have appeared, and the others named in the first process, in the same manner as if they had all appeared.5 Effect of judgment. Construction of preceding $6. But no judgment rendered in such action, by default or otherwise, shall be deemed evidence of any admission of assets, in the hands of any executor or administrator, who was not served with process in such action, or who did not actually appear therein. $7. The preceding section shall not deprive any plaintiff of the sections. usual remedies, to bring into court all the executors or administrators against whom the action is brought." actions a Limitation of $ 8. The term of eighteen months after the death of any testator gainst them. or intestate, shall not be deemed any part of the time limited by law for the commencement of actions against his executors or administrators. Ib. of actions by them. False pleading. executors. $9. The time which shall have elapsed between the death of any person, and the granting of letters testamentary or of administration, on his estate, not exceeding six months, and the period of six months after the granting of such letters, shall not be deemed any part of the time limited by any law for the commencement of actions, by executors or administrators. $ 10. No executor or administrator shall be made personally liable for any debt, damages or costs, by reason of his having pleaded any false plea. Executors of S 11. An executor of an executor, shall have no authority to commence or maintain any action or proceeding relating to the estate, ef (5) 1 R. L, p. 313, § 12. fects or rights of the testator of the first executor, or to take any charge ART. 1. or control thereof, as such executor. testator, &c. $12. The real estate which belonged to any deceased person, Real estate of shall not be bound, or in any way affected, by any judgment against his executors or administrators, nor shall it be liable to be sold, by virtue of any execution issued upon such judgment. former judg $13. Any subsequent executors or administrators, shall have exe- Execution on cution upon any judgment that may have been recovered by any per- munts son who preceded them in the administration of the same estate, within one year from the time of the docketing of such judgment, without reviving the same by scire facias, and without any other proceeding to give notice to the defendant in such judgment. ventury. S 14. In any action against executors or administrators, in which Rebutting inthe fact of their having administered the estate of their testator or intestate, or any part thereof, shall come in issue, and the inventory of the property of the deceased, made and filed by them, shall be given in evidence, the plaintiff or defendant may rebut the same by proof, 1. That any property or effects have been omitted in such inventory, or were not returned therein at their true value: 2. That such property has perished or been lost, without the fault of such executor or administrator, or that it has been fairly sold by them at private or public sale, at a less price than the value so returned; or that since the return of the inventory, such property has deteriorated or enhanced in value. demands. $15. In every such action, the defendants shall not be charged for Liability for any demands or rights in action specified in their inventory, unless it appear that such demands or rights have been collected, or might have been collected with due diligence. of two last $ 16. The two last sections shall not be construed to vary any rules Construction of evidence in respect to any proof which an executor or administrator sections. may now make by law. their own $ 17. No person shall be liable to an action as executor of his own Executors of wrong, for having received, taken or interfered with, the property or wrong. effects of a deceased person; but shall be responsible as a wrong-docr in the proper action to the executors, or general or special administrators, of such deceased person, for the value of any property or effects so taken or received, and for all damages caused by his acts, to the estate of the deceased. of adminis nis non. $18. When administration of the effects of a deceased person, Rights, &c. which shall have been left unadministered by any previous executor trators de boor administrator of the same estate, shall be granted to any person, such person may bring a writ of error upon any judgment obtained against such previous executor or administrator of the same estate, or [PART III. TITLE 3 against the original testator or intestate; and shall defend any writ of error brought upon any such judgment; and shall have the same remedies, in the prosecution or defence of any action, by or against such previous executors or administrators, and for the collection and enforcing of any judgment obtained by them, as they would have by law.7 Suits by le gatees to bo referred. ARTICLE SECOND. Of Suits by and against Legatees, and against next of Kin, SEC. 19. Reference of suits by legatees against executors. 20. Proceedings and powers of referees. 21. Costs, how and by whom to be paid. 22. Action for further assets; proceedings. 23. How actions against next of kin may be brought. 24. Recovery in such action; when apportioned. 25. Contribution may be compelled. 26. How actions against legatees may be brought. 27. Requisites to recovery in such action. 28. Recovery how apportioned among several legatees. 29. Apportionment of costs against relatives and legatees. 30. Judgment to express the amount recovered against each. 31. Payment of his share by one, to exonerate him. 82. Heirs and devisees how far liable for debts of ancestor. 33 & 34. But heirs not liable until personal assets exhausted, &c. 85. Express directions of will not to be affected. 36. Creditor to establish liability of heirs. 87. Order of payment of debts of ancestor. BS. Preference to debts of same class, &c. 39. Prior debts and those of same class, may be shown. 41. Payment of certain debts may be shown, &c. 42. Suits at law against heirs abolished; remedy in equity. 46. Proceedings to ascertain value of land descended. 47. When debt to be levied of real estate descended. 48. Such decree to have preference over judgments, &c. individually. 50. Order of liability; defence by heir. 51. Land aliened, &c. not affected by decree against heir. 52. Recoveries against several heirs, &c. how apportioned. 53. Costs also; decree to specify sum recovered against each. 54. Executions against infant heirs, to be stayed one year, &c. 56. Requisites to render devisees liable. 57. For what deficiencies liable. 58. Two last sections not to affect express directions of a will. 61. Liability in case of aliening land devised. 62 & 63. Remedy of child born after making a will for his share. 66. Foregoing provisions to apply to certain witnesses to wills. $ 19. Whenever an action shall be brought by any legatee against an executor or administrator, and the want of assets to pay all the debts of the deceased, and all the legacies bequeathed by him or any of them, (7) 1 R. L. p. 312, § 9. |