Persons out of the jurisdiction of the court.

ren, 14 Barb. 488. In their official capacity they act as trustees of an express trust, and come within the exception of section 113 of the Code. Ib. See Thomas v. Bennett, 56 Barb. 197 (201).

But, this exceptional right to sue in the place of the real party in interest does not extend to receivers appointed by the courts of another State or country. No case can be found in which a receiver has been permitted to sue in a foreign jurisdiction for the property of a debtor. Booth v. Clark, 17 How. (U. S.) 322. And the right of a foreign receiver to sue in his own name in the courts of this State has been authoritatively denied. Hope Mutual Life Insurance Co. v. Taylor, 2 Rob. 278. But, although a foreign receiver cannot sue in the courts of this State as a matter of right, the privilege has never been denied except where his claim came in conflict with the rights of creditors in this State. But the courts will not sustain the lien of foreign assignees and receivers, in opposition to a lien created by attachment under the laws of this State; or, in other words, the courts will decline to extend their wonted courtesy so far as to work detriment to citizens who have been induced to give credit to the foreign insolvent. Runk v. St. John, 29 Barb. 585. See Lombard Bank v. Thorp, 6 Cow. 46; Hoyt v. Thompson, 5 N. Y. (1 Seld.) 320. It will be proper, however, to commence an action in the name of the cestui que trust, instead of in the name of the trustee in cases where there may be a conflict between the rights of the creditors in this State and the claims of those represented by the foreign receiver. See Hope Mutual Life Insurance Co. v. Taylor, 2 Rob. 278.

Section 10. Persons out of the jurisdiction of the court.

a. Non-residents. The fact that a person, having a claim against a citizen of this State, is a non-resident, does not affect his right of action thereon when the claim accrues to him in his individual capacity. The only distinction made in this State, as to the relative rights of residents and non-residents to maintain an action in any court, is in relation to security for costs, such security being required when the action is brought by one against whom the court could not enforce a judgment in case he should fail to establish his right to recover. President, etc., of the Bank of Commerce v. Rutland & Washington R. R. Co., 10 How. 1; Persse and Brooks Paper Works v. Willet, 14 Abb. 119; Tyrone and Lock Haven R. R. Co. v. Schenck, 18 How. 275. This distinction extends to plaintiffs residing beyond the jurisdiction of

Who may not sue- Aliens.

courts of limited jurisdiction, as well as to plaintiff's residing in another State. Thus a plaintiff' residing beyond the jurisdiction of the superior court of the city of New York, but within the limits of this State, may be required, on commencing an action in that court, to give security for the costs of the action. Bolton v. Taylor, 3 Rob. 647; S. C., 18 Abb. 385; Gardner v. Kelly, 2 Sandf. 632; S. C., 1 Code R. 120; Hicks v. Payson, 7 Abb. 326. But this distinction does not extend beyond this requirement. The rights of aliens to sue in the courts of this State may be found stated in the following article.

ARTICLE II.

WHO MAY NOT SUE.

Section 1. Aliens.

a. In general. By the old law of England no alien, whether friend or enemy, could sue in the English courts. The necessities of trade, however, gradually caused this restriction to be regarded with disfavor, and the former restrictions were removed so far as to allow aliens to sue for a personal demand. There was, however, a clear distinction made between the rights of alien friends and alien enemies. Alien enemies were never granted the right to sue on demands accruing to them in their own right. Brandon v. Nesbitt, 6 Term. 23; McConnell v. Hector, 3 Bos. & Pul. 113; Co. Litt. 129, b; Sparenburgh v. Bannantyne, 1 Bos. & Pul. 163. This rule has been substantially adopted in this country. The mere circumstance of residing in a foreign country which is at war with this country, and of carrying on trade there, is sufficient to constitute one an alien enemy who would not otherwise be so considered. Thus a citizen of the United States, residing in the enemy's country, is as clearly an alien enemy, in respect to his capacity to sue, as one born and residing within the territory of a hostile nation.. Albrecht v. Sussman, 2 Ves. & B. 323; McConnell v. Hector, 3 Bos. & Pul. 113; Baglehole, Ex parte, 18 Ves. 525; Arnold v. United Ins. Co., 1 Johns. Cas. 363. But aliens who are residents of the United States at the breaking out of a war with their native country, or who come to reside in this country by a presumed permission, after a declaration of war, may sue and be sued as in time of peace. Clarke v. Morey, 10 Johns. 69. A

Aliens-Convicts - Foreign executors.

state of actual war may exist without a formal declaration of it by either party, and this is true both of a civil and a foreign war. A civil war exists whenever the course of justice is interrupted by revolt, rebellion or insurrection, so that the courts. cannot be kept open. Swinnerton v. Columbia Ins. Co., 37 N. Y. (10 Tiff.) 174, 178; Robinson v. International Life Ass. Co., 42 N. Y. (3 Hand) 54, 61. The obligation of observing the common laws of war exists wherever a civil war exists, as well as where two recognized nationalities are at war with each other, and a resident of a State in rebellion against the general government is subject to the same disabilities and liabilities as an alien enemy. Thus, any individual who voluntarily remained in the confederate States after the civil war had commenced, became incapable of prosecuting an action in the courts of this State. Sanderson v. Morgan, 39 N. Y. (12 Tiff.) 231; affirming 25 How. 144; Bonneau v. Dinsmore, 23 id. 397.

b. In real actions. By the rule of the old law of England, an alien friend might maintain personal actions, but could not maintain real or mixed actions. Co. Litt. 129, b. Under the law as it then existed, no alien except a merchant, could have land at all, and he was restricted to a house, for the law gave him the privilege of a habitation only as necessary to trade. Much of the rigor of the common law has been abated, and under the laws of this State an alien may hold land conveyed to him as against every one but the State, and until office found, can maintain actions for its recovery. Bradstreet v. Supervisors of Oneida Co., 13 Wend. 546; Ford v. Harrington, 16 N. Y. (2 Smith) 285 (294). See Overing v. Russell, 32 Barb. 263, 265.

Section 2. Convicts. A sentence of imprisonment in a State prison, for any term less than for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority or power during the term of such imprisonment. 2 R. S. 701. This of course deprives the person so convicted of all right to commence or to maintain an action in his own right in the courts of this State. See Miller v. Finkle, 1 Park. Cr. 374.

Section 3. Foreign executors. It is well settled that a party cannot sue or defend in the courts of this State, as executor or administrator under the authority of a foreign court. Letters of administration are valid only within the State where they are granted, and before the courts of this State can recognize the

Who may not sue alone - Infants.

personal representative of a deceased non-resident, he must be clothed with authority derived from the laws of this State. Doolittle v. Lewis, 7 Johns. Ch. 45; Parsons v. Lyman, 20 N. Y. (6 Smith) 103; Vroom v. Van Horne, 10 Paige, 549; Morrell v. Dickey, 1 Johns. Ch. 153. But although a foreign executor cannot sue, as such, in the State courts, the disability does not extend to his assignee, who may sue in his own name. The disability does not attach to the subject of the action, but to the person of the plaintiff. Petersen v. Chemical Bank, 32 N. Y. (5 Tiff.) 21; S. C., 29 How. 240; Middlebrook v. Merchants' Bank, 3 Keyes, 135.

a. How infants must sue. Under the former practice an infant plaintiff could only sue by a next friend, while an infant defendant appeared by guardian. Under the Code the rule is changed, and an infant party, whether plaintiff or defendant, must appear by a guardian specially appointed for the purposes of the action. Code, § 115; Hoftailing v. Teal, 11 How. 188; Freyberg v. Pelerin, 24 id. 202. There is, however, one exception to this general rule. Where an infant wife joins with her husband as plaintiff in an action in which her separate estate is not concerned, the appointment of a guardian ad litem is unnecessary. Cook v. Rawdon, 6 How. 233; S. C., 1 Code R. N. S. 382. The effect of a disregard of this rule is to entitle the defendant to move to set aside the summons and complaint for irregularity. Hoftailing v. Teal, 11 How. 188; Freyberg v. Pelerin, 24 id. 202. But although an action may not be commenced or prosecuted before the appointment of a guardian ad litem, there are certain statutory proceedings that may be instituted by the natural guardian of an infant. Thus, a petition for the sale of. an infant's real estate may be presented by the infant's natural guardian, as the mother or uncle. Matter of Whitlock, 32 Barb. 48; S. C., 19 How. 380; 10 Abb. 316; O'Reilly v. King, 2 Rob. 587; S. C., 28 How. 408.

Although an infant may not sue without a guardian, it does not follow that the general guardian may not sue alone. On the contrary, a general guardian, appointed by a surrogate,

Idiots, lunatics, etc. - Married women-Joinder of plaintiffs.

stands in the position of a trustee of an express trust, and may maintain an action in his own name, as such guardian, to recover a debt due to his wards. Thomas v. Bennett, 56 Barb. 197. See White v. Parker, 8 id. 52.

Section 2. Idiots, lunatics, etc.

a. How an idiot, lunatic or habitual drunkard may sue. Any person judicially declared an idiot, lunatic or habitual drunkard cannot sue alone. The action must be brought in the name of the idiot, lunatic or drunkard, by the committee having control of his estate; or such committee must maintain the action in his own name, as trustee of an express trust. Crippen v. Culver, 13 Barb. 424, 429; Davis v. Carpenter, 12 How. 287. It was the rule, before the Code, that the action must be maintained by the lunatic in his own name, in all cases not expressly provided for in the act of 1845. McKillip v. McKillip, 8 Barb. 552; Laws of 1845, ch. 112, § 2. This rule has no existence since the Code. Person v. Warren, 14 Barb. 488; Thomas v. Bennett, 56 id. 197, 201. See ch. 1, § 9, c, ante, 105.

Section 3. Married women.

a. When a married woman may not sue alone. In every action in which a married woman is a party plaintiff, her husband must be joined with her, except when the action concerns her separate estate, or is one between herself and husband. Code, § 114.

ARTICLE IV.

WHO MAY BE JOINED AS PLAINTIFFS.

Section 1. What interest will authorize a joinder of.

a. Plaintiffs. It was the old rule in equity that all persons materially interested in the subject of a suit, however numerous, ought to be made parties, in order that there might be a complete decree between all the parties having a material interest. The rule of the Code is, in effect, the embodiment of the old equity rule. It provides that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in Title III. Code, & 117.

b. Nature of the interest. The general language of the Code furnishes no criterion by which to determine the nature and character of the interest necessary to authorize a joinder of