to the subject-matter of the suit. In the courts of the United States, however, the rule was early laid down as follows: "Where the wife complains of the husband and asks relief against him she must use the name of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court. In the District Courts held in the State of New York, where a married woman has substantially all the powers of a spinster, she may sue in equity, as if she were single, at least if she be a citizen of that State. In the District Courts in the districts of California the rule is otherwise. When a suit has been begun by a married woman alone who should have sued by her next friend, leave to amend by adding to the title the name of a next friend will always be granted.8 § 90. Suits on behalf of infants. The Equity Rules provide: "All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons.' 1 A guardian, as such, cannot maintain an action in a State other than in which he was appointed, in the absence of a statute of the forum permitting him to sue.2 The suit should be brought in the name of the infant by his guardian ad litem and not in the name of the guardian ad litem for the infant but this objection unless specifically raised by demurrer or motion cannot be availed of upon writ of error.* 4 Sigel v. Phelps, 7 Sim. 239; Wake v. Parker, 2 Keen. 70; Story's Eq. Pl., § 63. 5 Mr. Justice McLean in Bein v. Heath, 6 How. 228, 240, 12 L. ed. 416, 421. See Douglas v. Butler, 6 Fed. 228. 6 Lorillard v. Standard Oil Co., 2 Fed. 902. But see Taylor v. Holmes, 14 Fed. 499, 514; U. S. v. Pratt Coal & Coke Co., 18 Fed. 708; O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. 7 Wills v. Pauly, 51 Fed. 257. 8 Douglas v. Butler, 6 Fed. 228; Taylor v. Holmes, 14 Fed. 499. § 90. 1 Eq. Rule 70; copied in substance from Eq. Rule 87, of 1842. 2 Lawrence v. Nelson, 143 U. S. 215, 222, 12 Sup. Ct. 440, 36 L. ed. 130; Re Kingsley, 160 Fed. 275; Pulver v. Leonard, 176 Fed. 586. 3 Sandeen v. Tschider, C. C. A., 205 Fed. 252. 4 Ibid. By the old Chancery practice, an infant could only sue by his next friend, who might be any person that would undertake the suit in his behalf, subject, however, to the costs and the censure of the court, if it were improperly brought. The next friend, at any time, may be removed by the court either summarily or after a reference, if it seemed for the best interest of the infant to appoint another. This is usually done if he is interested in the suit. It was doubtful whether insolvency and consequent inability to respond for costs was, in itself, a ground for the next friend's removal. That might, however, be a reason for an order directing him to give security for costs. 10 The court might, at any time, order a reference to a master, to determine the propriety of a suit; and, if it appeared to have been brought against the infant's interest, would stay proceedings in it or dismiss the bill, with costs to be paid by the next friend." This could be done even without a reference.12 No such reference would, it seems, be ordered at the request of the next friend himself,13 unless there were another. cause pending by reason of which the infant's property was subject to the control of the court, when such a reference might be ordered at the instigation of a next friend, and he be paid. his costs out of the estate even if the bill were finally dismissed.14 An application to dismiss a bill as improperly filed on behalf of an infant might be made by a person "as next friend for the purpose of this application," 15 or by a defendant to the bill.16 It seems that any motion clearly for the interest of an infant complainant could be made by a next friend for the Rule 87; Story's Eq. Pl., § 57; Dudgeon v. Watson, 23 Fed. 161; Bradwell v. Weeks, 1 J. Ch. (N. Y.) 325. 6 Campbell v. Campbell, 2 M. & C. 25, 30; Sale v. Sale, 1 Beav. 586; Starten v. Bartholomew, 6 Beav. 143. 7 Nalder v. Hawkins, 2 M. & K. 243; Russell v. Sharpe, 1 Jac. & W. 482; Jarvis v. Crozier, 98 Fed. 753, 755. 8 Jarvis v. Crozier, 98 Fed. 753, 755. See in re Corsellis, 50 Law T. N. S. 703. 9 Anon., 1 Ves. Jr. 409. 10 Fulton v. Rosevelt, 1 Paige (N. Y.), 178, 180, 19 Am. Dec. 409. 11 Da Costa v. Da Costa, 3 P. Wms. 140; Nalder v. Hawkins, 2 M. & K. 243; Sale v. Sale, 1 Beav. 586. See King v. McLean Asylum of Massachusetts General Hospital, 64 Fed. 325. 12 Sale v. Sale 1 Beav. 586. 13 Jones v. Powell, 2 Mer. 141. purpose of the application, when the next friend who filed the bill refused to move.17 If two suits were instituted on behalf of the same infant for the same purpose by two next friends, the court would direct a master to inquire which is most for the infant's benefit.18 A bill might be filed by a next friend on behalf of a child still in its mother's womb.19 If an infant were made co-plaintiff with others, and it appeared that it would be more for his advantage that he should be made a defendant, an order to strike out his name as plaintiff, and to make him a defendant, might be obtained.20 The next friend has the power to select the court in which the case shall be tried.21 He may waive the right to remand the case to a State court after removal.22 The court usually will not approve a compromise or enter a decree by consent when an infant is interested without a reference to a master to report whether it is advisable 23; it may approve a compromise without such a reference.24 And a consent decree without such a reference binds the infant unless obtained by fraud.25 An attorney who is representing interests antagonistic to infant clients cannot give binding consent to a decree against the infants, and a decree based on such consent is invalid.26 Where, in a proceeding to which infants were parties, the court, after reference to a master, rendered a decree; it was upheld, as binding upon the infants, although there was a stipulation that such decree might be entered by consent at chambers, for the decree was based on the action of the court, and not the consent, which was not binding on the infants, being signed by their attorney, who was representing interests an 17 Furtado v. Furtado, 6 Jur. 227; Cox v. Wright, 9 Jur. (N.S.) 981; Guy v. Guy, 2 Beav. 460. 18 Calvert on Parties (2d ed.), 418. 19 Luterel's Case, cited Prec. Ch. 50; Musgrave v. Parry, 2 Vern. 710. 20 Tappen v. Norman, 11 Ves. 563; Jarvis v. Crozier, 98 Fed. 753. 21 Re Moore, 209 U. S. 490, 52 L. ed. 904. 22 Ibid. 23 Thompson V. Maxwell Land Grant Co. 168 U. S. 451, 462, 42 24 Lippiat v. Holley, 1 Beav. 423; 26 Glover v. Bradley, C. C. A., 4th Ct. 233 Fed. 721, 10. tagonistic to them.27 When a bill was filed on behalf of an infant, his coming of age did not abate the suit; but he might then elect whether he would proceed with it or not.28 If he chose to go on with the case, all further proceedings could be carried on without any amendment or the filing of a supplemental bill.2 29 He was then liable for all costs of the suit, as if he had filed the bill after he came of age.30 Otherwise, he was not personally chargeable with costs; 31 unless he made a motion to dismiss the bill; which it seems could only be done upon the payment of costs by himself, 32 if he could not establish that the bill was improperly filed by his next friend.33 If the next friend died during the infant's minority, and the latter took no step in the case after he had come of age, the defendant might have the bill dismissed, but without costs, since there would then be no one living who was liable to pay them.34 The suit is brought in the name of the infant, not in that of the next friend,35 and the infant's citizenship is the test of the jurisdiction.36 Where the bill shows that the suit was brought by a guardian in a representative capacity, but by the title it appears that he sues individually, the title, if necessary, may be amended.37 A guardian ad litem for an infant, although appointed in a State court before the removal of the cause, cannot without the approval of the court, bind the infant by a contract concerning the amount of the attorney's fees.38 § 91. Suits on behalf of idiots, lunatics, and persons of weak mind. Idiots and lunatics sue by their committees or guardians, if they have any, otherwise by next friends. It is the usual practice to join them as plaintiffs with their representatives, though it might be held unnecessary to do so when one 27 Ibid. 28 Guy v. Guy, 2 Beav. 460. 29 Hoffman's Ch. Pr. 60; Daniell's Ch. Pr. (2d Am. ed.) 102. 30 Daniell's Ch. Pr. (2d Am. ed.) 102. 31 Waring v. Crane, 2 Paige (N. Y), 79, 21 Am. Dec. 70. 32 Waring v. Crane, 2 Paige (N. Y.) 79, 21 Am. Dec. 70. 33 Turner v. Turner, 2 Stra. 708. has a committee authorized by statute to sue in his name.2 If the interest of the committee be adverse to that of his ward, the latter should sue by a next friend. Although the practice is unsettled, it would be advisable to have the next friend appointed by the court. Where a volunteer applied for the writ of habeas corpus on behalf of a person whom he alleged to be wrongfully confined as a lunatic, the court appointed another guardian ad litem with the direction that he examine the facts and use his own discretion in determining whether to continue the proceeding. If a plaintiff become a lunatic after the institution of a suit, a supplemental bill may be filed in the joint names of the lunatic and of the committee of his estate, which will answer the same purpose as a bill of revivor in procuring the benefit of former proceedings. If a committee die and a new committee is appointed after a suit has been instituted by the former for the benefit of his idiot or lunatic, the proper way of continuing the suit is by a supplemental bill filed by the idiot or lunatic and the new committee." In England, a committee usually before the institution of a suit prayed the sanction of the Lord Chancellor by a petition, which was often referred to a master. Where a bill had been filed in the name of an alleged lunatic under an order of the court, and thereafter the plaintiff appeared by an attorney and moved to dismiss the bill, upon the ground that she was mentally competent; it was held, that the court was not ousted of its jurisdiction, but might inquire into the mental competency of the plaintiff. It has been said: that in such a case, the issue concerning the mental competency should be determined by a jury; but that it may be decided by 2 See Ortley v. Messere, 7 Johns. Ch. (N. Y.) 139; Harrison v. Rowan, 4 Wash, C. C. 202; Palmer, Attorney-General, V. Parkhurst, 1 Chan. Cas. 112; Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24; Hoffman's Ch. Pr. 61; Story's, Eq. Pl., § 65, and notes. 3 Compare 4 Compare Attorney-General V. Tiler, 1 Dick. 378; Hoffman's Ch. Pr. 61; Story's Eq. Pl., § 64, and notes. 5 King v. McLean Asylum, 26 L.R.A. 784, 64 Fed. 331. 6 See Brown v. Clark, 3 Woodeson's Lect. 378; Daniell's Ch. Pr. 108. 7 In re Reynolds, Shelf on Lun. 417; Daniell's Ch. Pr. 108. 8 In re Webb, Shelf on Lun. 417; Daniell's Ch. Pr. 108. 9 Isle v. Cranby, 199 Ill. 39, 64 L.R.A. 513, 64 N. E. 1065. |