both summons and notice, one fee of 12 cts. only, in addition to those for mileage, at 6 cts. per mile for going only, to which he is entitled under the revised statutes, 2 R. S. 644. See Gallagher v. Egan, 2 Sandf. S. C. R. 742.

The necessary particulars of the affidavit of service, when made by a person in the ordinary form, are fully prescribed by rule 90 of the supreme court; see Form in appendix. The forms of affidavits in cases of service by publication are also there given. Where the written admission of the defendant is relied upon, it would seem from Litchfield v. Burwell above cited, that it is absolutely essential that his signature to such admission, and the fact that he is the party to the cause, should be proved by independent evidence. The court will take judicial notice of the signatures of its officers, because they are such, but they cannot be presumed to know that of a party defendant who has not appeared in the cause.

The provision in sec. 139, with regard to the voluntary appearance of a defendant being equivalent to due service upon him, is one of the amendments of 1851, and is of course highly calculated to promote the convenience of suitors, though perhaps, in strictness, only declaratory of the previous law upon the subject.

The periods at which an action will be held to have been commenced, by service or delivery of process to the sheriff, and also with reference to publication, or the allowance of a provisional remedy, have already been considered. Before entering upon the general proceedings in a suit, the appointment of a guardian ad litem, and his duties, may advantageously be considered at the present juncture, as, where suit is brought in the name of an infant, such appointment must, of necessity, take place, as a preliminary to any other proceeding in the action, and, in fact, to the bringing of the action itself. The subject of a similar appointment on behalf of an infant defendant, and that of the appointment of a general guardian under the old practice, and the duties of the latter, bear so close a relation to that last proposed, that, although the former properly belongs to a later period of the action, and the latter is in strictness referable to the head of special proceedings, the present seems evidently the most convenient stage of the work for a separate consideration of these subjects, as one connected whole; which course will accordingly be pursued in the succeeding chapter, references being made to it in the subsequent portions of the work where requisite.

CHAPTER IV.

OF THE APPOINTMENT OF GUARDIAN, AND HIS DUTIES

a general guard

....., anu 2. That of a guardian ad litem. The provisions of the Code itself have only reference to the latter subject; those of the rules, however, embrace both.

The questions in relation to the appointment and duties of a general guardian, depend entirely and exclusively upon the provisions of the Revised Statutes, and are in all respects governed by the old practice. Anything beyond a mere general reference to them, would therefore be clearly incompatible with the present work, and will not, accordingly, be attempted.

The appointment of a guardian of this nature, rests with the father of the infant, in the first instance; and, in default of appointment by him, with the courts. The rights of the former in this respect, are specially saved by secs. 1, 2, and 3, of title III. chap. VIII. part II. of the Revised Statutes, 2 R. S. 150, and are exercisable by deed or will. The rights and powers of a guardian so appointed are absolute, and prevail over those of the guardian in socage under the common law, as saved by secs. 5 to 7, of art. I. title I. chap. I. part. II. of the same statutes, 1 R. S. 718. The latter are in fact little better than illusory, as, under sec. 7, of that article, they are to be superseded, in all cases where a special appointment shall have taken place.

In default of nomination by the father as above, the appointment of a guardian rests with the courts, either by inherent or special authority. The inherent authority in this respect was vested in the chancellor, before the abolition of that high office, and now rests with the supreme court, as exercising its duties by substitution. The practice of the latter tribunal, in this respect, is fully defined by the recent rules, Nos. 58 to 66 inclusive, which should be carefully consulted accordingly, in connection with the works on the former practice. A special statutory authority is also exercisable by the surrogate, under title III. chap. VIII. part II. of the Revised Statutes before referred to, which title, together with the works on the practice of those tribunals, should therefore be fully looked into, though even a notice of them would be beyond the province of the present work.

The rules of the supreme court above alluded to, provide shortly as follows: The general guardian of an infant is to be appointed on petition of the infant himself, if fourteen or upwards or if under that age, then of some relative or friend. -Rule 61. The petition must state full particulars; and the court, under rule 62, are to examine into all the circumstances, and name a proper person.

The security to be given by such guardian on his appointment, is prescribed by rule 59; and no monies arising from the sale of real estate of an infant, on mortgage or partition sale, or under a decree or judgment, except any portion of principal or income allowed for maintenance of the infant, are to be paid over to him, unless he have given sufficient security on unincumbered real property, rule 60; and a general guardian already appointed, may, under rule 58, be required to give further security in cases of this nature.

Provision is made by art. VII. title II. chap. I. part III. of the Revised Statutes, 2 R. S. 194 to 197, in relation to the sale of the real estates of infants on special application, and the practice to be adopted in this respect, the nature of the petition, the security to be given, the form of order to be made, and the proceedings thereon, will be found fully prescribed by rules 63 to 66 inclusive.

The following anonymous case is reported at 4 How. 414, with reference to the security to be given under rule 63:

A guardian having been appointed, under rule 65, to sell a

piece of real estate belonging to five infants, and the order having directed separate surety bonds to be given to each infant, in the sums thereby expressed, five bonds were given accordingly, with a separate affidavit on each, the same persons being sureties in all.

It was held that to make such parties competent as sureties, they must justify, in the aggregate amount of all the bonds given. One only of such bonds was therefore approved; and, as to the other four, it was held there must be other sureties, or a further justification.

In White v. Parker, 8 Barb. S. C. R. 48, the general relations of guardian and ward, and the duties and responsibilities of the former are very fully reviewed, and the following conclusions were come to by the court.

It is the duty of a guardian to get possession and control of his ward's personal property, and the rents and profits of his real estate; to keep and protect the same; to keep it invested; and to render a just and true account thereof, on the ward's becoming of age.

He cannot trade with it himself, on account of his ward, nor buy or use his ward's property for his own benefit.

All advantageous bargains which a guardian makes with the ward's funds, will enure to the benefit of the ward, at his election.

He cannot convert the personal property of his ward into real estate, or buy land with the ward's money. If he does so, his ward, when he arrives at full age, will be entitled, at his election, to take the land or the money with interest.

He should keep his ward's property separate from his own; otherwise he will make it his own, so far as to be accountable for it, if lost. If he takes notes or other securities, for money belonging to his ward, in his own name, he converts the property to his own use, and is prima facie accountable for it.

Thus, if a guardian surrenders contracts for land, and takes deeds in his own name, and pledges his personal responsibility for a part of the purchase money, this will be held a conversion of the contracts to his own use; and the ward may adopt the transaction, or claim from the guardian the value of the land contracts, at his election.

A guardian acting within the scope of his powers, is bound only to fidelity, and ordinary diligence and prudence, in the

execution of his trust. And his acts, in the absence of fraud, will be liberally construed.

A guardian is not responsible for open propositions made by him, in a preliminary talk or friendly conversation, before he assumes the duties of his trust. Nor is his surety liable for the conversations, or open propositions of his principal, before he became his surety. The liability of a guardian and his sureties, are simultaneous in their commencement, and co-extensive in their object and duration.

In cases where the infant is seized of an undivided share of lands, sought to be partitioned by the other parties interested, the general guardian possesses peculiar and extensive powers of concurring therein, or in a sale for such purposes on behalf of the infant, under the provisions of the Revised Statutes in this respect. See this subject fully noticed, under the head of partition.

The relations and duties of a general guardian having thus been shortly considered, though in strictness extraneous to the subjects treated of in the present volume, the questions as to the appointment of a guardian ad litem, remain to be considered, which forms the subject of special provision in the Code, and is a necessary concomitant of proceedings under that measure, in all cases where infants are parties to those proceedings.

The guardian ad litem is an officer specially appointed by the court, to take charge of the interests of any infant party, whether plaintiff or defendant. The sections of the Code in reference to this subject, are Nos. 115 and 116, which run as follows:

§ 115. 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.

§ 116. The guardian shall be appointed as follows:

1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or, if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one, if he has none, then to the person with whom such infant resides.

2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty