#### MARY A. PHŒBE v. EPHRAIM BLACK and others.

*Parties — Appearanee — Trustee and Cestui que Trust.*

X No one can prosecute or defend an action except in person or by an attorney authorized by some writing.

U. But a *cestui que trust*in prosecuting an action for his equitable property is entitled to make his trustee a party and avail himself of the legal estate in such trustee.

3. If such trustee voluntarily makes himself a party plaintiff to sustain some interest of his own, no one can represent him without authority in writing and he must give a prosecution bond. If however he is made ■a party plaintiff by his *cestui que trust,*without his consent, no authority from him to prosecute is necessary and no prosecution bond can be required of him.

4. A Court has no power to permit a *cestui que trust*to make his trustee a party plaintiff without his consent, except *upon notice to him*and an adjudication that he is a trustee.

Civil Actior, tried at Fall Terra, 1876, of LINCOLN StT perior Court, before *Schench, J.*

The plaintiff brought this action to recover a tract of land which had belonged to one Marcus Iiarvy. James J. Sample the agent of said Harvy conveyed the same by deed to John B. Harvy, the grantor of the plaintiff.

The decision made in this Court however is based upon an •amendment made to the proceedings in the Court below and a moti on to dismiss the suit as to Marcus Harvy — anon-resident of said County — under the facts and circumstances set out in the opinion delivered by Mr. Justice RodmaN. His Honor ruled for the defendants and. the plaintiff appealed.

*Mr. J. F.*Hoke, for plaintiff.

*Messrs. Montgomery Cobb*and *Shipp Sp Bailey,*for defendant.

*380RodmaN, J.

This action is to recover land. ' The plaintiff having given as surety to her prosecution bond- one who was held insufficient was allowed upon affidavit of her poverty, &c. to continue her action without further surety and as a pauper. At Spring Term, 1876, she made oath that the' land in controversy had belonged to Marcus Harvy whose Attorney, one Sample) had ¿undertaken to convey it to John B. Harvy (.from whom she bought) but from ignorance or mistake had made and signed the deed of conveyance in his own name instead of in that of his principal who nevertheless received the money and thus was a trustee for her. She-thereupon moved to amend her complaint by making Marcus Harvy a plaintiff to her use. This the Judge allowed and the amendment was made. The defend ants then claimed that plaintiff’s counsel had no right to represent said Harvy without a power of attorney from him which it was. admitted they did not have. The defendants also moved to dismiss the action of Harvy for want of a prosecution bond there being no proof of his poverty.

The Judge was of opinion with the defendants on both motions and dismissed the action of Harvy, leaving it to stand in the name of Phcebe as plaintiff. As the principles which apply to both motions are substantially the same we may conveniently consider them, together.

The general rule is not disputed. No one can prosecute or defend an action except in person or by an Attorney authorized by some writing

A *cestui que trust*rhay however prosecute an action in the name of his trustee as plaintiff if it be necessary to do so. For example; under the law before the Code, the assignee (as distinct from the endorsee) of a bond or note was compelled to bring his action at law. in the name of the payee. But if the trust was admitted by the payee or had been determined by a Court of Equity, no power of attorney from *381•such nominal plaintiff could be required; nor any prosecution bond, that given by the *astui que trust*standing in its place. Under the present law every *cestui qu>- tust*in prosecuting an action for his equitable property is entitled to make his trustee a party and to avail himself of the legal estate in such trustee. In general it would not be material whether such trustee were a plaintiff or defendant. But if there be any case in which it. is material that he should be a plaintiff (as perhaps there may be where there is an express trust) the Court on proof of the trust can compel him to allow his name to be used as such upon his receiving a bond of indemnity from costs from his *cestui que tiust.*The distinction is this ; if a trustee voluntarily makes himself a plaintiff to sustain some interest, of his own no one can represent him without authority in writing and he must give a prosecution bond. If one claiming to be a *cestui que trust*makes a supposed trastee a parly without his consent which caii only be done by order of Court and after due notice to him and opportunity of defence to the motion, in such case no power of attorney to prosecute and no prosecution bond can be required. The reasen is obvious.

A Court may dismiss an action unless it appears that the Attorney has authority to bring it, or for want of a prosecution bond. But no Court can compel a man *specifically*to give a power of Attorney or a prosecution bond. And where the trustee is a naked trustee, without- interest, to dismiss his action for want of one or the other, is to refuse a remedy to the *cestui que trust*who is the only plaintiff'in interest.

To apply these principles to the present action. Ilarvy if a trustee at all was a naked trustee, and the Judge had no power to allow the plaintiff 1 hoebe to make him a plaintiff either in her stead or with her, without his consent and *without notice to Mm*and an adjudication that he was a trustee which, however, supposing he had been duly served with *382process and notice, might be made at any convenient stage; of the ease.

Evidently his rights might be prejudiced by an adjudication that be was a trustee in his absence. The plaintiff-Phcebe, however, could attain all she desired by bringing in Harvy as a defendant, by service of process by publication or otherwise according to the circumstances. If on being so-brought in, he admitted the trust, or if it were adjudicated against him, his name could be inserted in the complaint as. plaintiff along with that of Phoebe, if from any reason that was thought necessary or convenient. In such case no power-of attorney to *prosecute the action*could be required from him and no prosecution bond. The permission granted to Phoebe to sue as a pauper would extend to a trustee for her, brought in without his consent although he was not a pauper.

"We think therefore the Judge was right in dismissing the* action as to Harvy ; but the plaintiff' may still bring him in. by process and if he admits the trust, he may then be made a plaintiff if necessary ; or if he denies it, she may litigate that question with him, and then try the issue of title with the defendants.

The judgment is affirmed, and the case remanded to be proceeded in according to law. Let this opinion be certified.

PER Cubiam. Judgment affirmed.