Carroll v. Montgomery.

Claes, J. The objection that the next friend had not been regularly appointed should have been taken by a plea in abatement, and not by a motion to nonsuit at the close of the evidence. Hicks v. Beam, 112 N. C., 642. The defendant had answered and thus waived objection. The action of the Judge in making an order at that juncture appointing the next friend was in his discretion. His order was made after full inquiry in the mode prescribed by Eules 16 and 17 of the Superior Court, and his selection is not a matter from which the defendant could appeal. It did not concern him. The mother, already a party to the action, had no interest hostile to her children which could prevent her appointment. Indeed, the Judge finds she had no interest. The judgment properly directs the payment of the recovery into Court, to await the appointment of a guardian to receive the fund. It appearing 'that the feme plaintiff had taken her dower in the entire estate of her husband in another State, it was properly held that she had no interest in the rents sued for in this action. We do not see why the defendant should object, or how his interest is affected. She is a party to this action, and is the proper one to have raised objection to the exclusion of herself from a share in the recovery. The defendant is fully protected from a future action by her. The defendant having collected the rents, acting as agent for the owners, though infants, the Statute of Limitations does not run against the 'trust. The insolvency of the defendant is alleged in the complaint and admitted in the answer. *280 Arrest and bail lies in sucb case, Cod.e, section 291 (1) and (2), and an execution against tbe person issues, if one against tbe property of tbe defendant be returned unsatisfied. Code, sections 447, 448 (3) ; Kinney v. Laughenour, 97 N. C., 325. Tbe Judge properly finds tbat a cause of arrest is set forth in tbe verified complaint. Tbe defendant can be discharged only in one of tbe methods pointed out in Fertilizer Co. v. Grubbs, 114 N. C.,470. The other exceptions do not require discussion. We find No error.