2 § 106. Suits against infants. An infant when sued should be provided by the court with a guardian ad litem. For an omission to appoint a guardian ad litem, a decree against an infant will be reversed upon appeal. An application for the appointment of a guardian ad litem for an infant should be made by petition, which, if the appointment of a particular person is desired, should state his name and his consent to act as such. The court will usually appoint the infant's general guardian or "the nearest relative not concerned, in point of interest, in the matter in question;" but the choice of the guardian rests in the sound discretion of the court, and only in an extraordinary case would a decree be reversed for an error in this respect. The interests of an infant are guarded jealously by the court, which will not hold him bound by any admission made by him or in his behalf, whether in the pleadings or sion's order pending an appeal, if we have authority to grant it, like the one for the interlocutory injunction, is addressed to the judicial discretion. "It is argued that, because one of the judges dissented from the decision on the first application, such doubt is created that the second application should be granted. If one thing is made clear by the statute, it is that one judge cannot grant the injunction. If, when the injunction is refused by the court, composed of three judges, the dissent of one of the judges was permitted to control a second application and cause an injunction or a continuance of the restraining order, the purpose of the statute would be defeated. One judge could still prevent the enforcement of the rates fixed by a Commission or by a Legis. lature. "It is urged that the second application should be granted because the decision of this court may be reversed. If a majority of the court now believe we have decided erroFed. Prac. Vol. I-43 6 neously in refusing the injunction on the first application, the way to correct it here, if we have authority to do so, is to set aside the order and grant the injunction. That should be done, if at all, directly, and not indirectly." See supra, § 100b. § 106. 1 Rule 70; Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Woolridge v. McKenna, 8 Fed. 650, 670. 2 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. 3 Rhinelander v. Sanford, 3 Day (U. S. C. C. D. Conn.), 279. 4 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897; Story's Eq. Pl., $70; Calvert on Parties, Book III., ch. xxxi. 5 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 8 L. ed. 890, 897. See Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047. 6 Bank of U. S. v. Ritchie, 8 Pet. 128, 144, 145, 8 L. ed. 890, 897; Walton v. Coulson, 1 McLean, 125; s. c., Coulson v. Walton, 9 Pet. 62, 84, 9 L. ed. 51, 60; Hawkins v. Lus 8 otherwise; but a decree by consent as the result of a compromise approved by the court may be made without a reference to a master, although the safer practice is to have it referred. The guardian ad litem is responsible for the propriety of the defense. He must pay costs for scandal; 10 and he may be removed by the court at any time. This may be done if he is unable or unwilling to pay the expenses of the defense.12 If no person of substance is willing to serve for the infants, the court "might suspend further proceedings until it could send a next friend or guardian ad litem to the State courts having jurisdiction of their person and property, to secure such guardianship as would protect them." 13 Infants may defend in forma pauperis; but, except under extraordinary circumstances, their expenses will not be advanced out of a fund in the hands of a receiver.14 A guardian ad litem may recoup his expenses from the infant's property.15 According to English practice, an appearance could be entered for an infant before a guardian ad litem had been appointed.16 It is the safer practice in this country to serve the infant with a subpoena before the appointment of a guardian ad litem; 17 but where a guardian ad litem has been appointed, it will be presumed, in the absence of evidence to the contrary, that the infant was duly served.18 A decree against an infant is void unless he has been personally served with process, although a general guardian has appeared for him,19 except in the cases where substituted service or service by publication is authorized.21 combe, 2 Swanst. 375, 390; Savage v. Carroll, 1 Ball. & B. 553. 7 Legard v. Sheffield, 2 Atk. 377; White v. Miller, 158 U. S. 128, 39 L. ed. 921. See also Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047; Clarke v. Clarke, 178 U. S. 186, 44 L. ed. 1028. 8 Thompson v. Maxwell L. G. & Ry. Co., 168 U. S. 451, 42 L. ed. 539. 9 Knickerbacker v. De Freest, 2 Paige (N. Y.), 304. 10 Daniell's Ch. Pr. (2d Am. ed.) 204. 11 Russell v. Sharpe, 1 Jac. & W. 482. 20 12 Ferguson v. Dent, 15 Fed. 771, 772. 13 Ferguson v. Dent, 15 Fed. 771, 772. 14 Ferguson v. Dent, 15 Fed. 771. 15 Ferguson v. Dent, 15 Fed. 771, 772. 16 Braithwaite's Pr. 322. 17 Smith v. Reid, 134 N. Y. 568; Settlemier v. Sullivan, 97 U. S. 444, 24 L. ed. 1110; infra, § 163. 18 Sloane v. Martin, 77 Hun (N. Y.), 249; infra, § 163. 19 N. Y. Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. ed. 580. 20 Infra, § 165. 6 § 107. Suits against idiots, lunatics, and persons of weak mind. Idiots and lunatics defend by guardians ad litem, appointed for them by the court. A committee will usually be appointed guardian ad litem of the person in his charge, unless his interest be opposed to that of the idiot or lunatic, or perhaps if he refuse to answer or defend. The guardian ad litem is usually joined with the idiot or lunatic as co-defendant.5 It was held by Chancellor Kent, that in New York the committee appointed in accordance with statute, and not the idiot or lunatic, is the proper party to the bill; but the rule in the Federal courts seems to be otherwise." "A person reduced by age or infirmity to a second infancy may defend by guardian." 8 It is said that the answer of a superannuated person, put in by guardian, may be read against him as an answer of one of full age put in in person; and that the difference in this respect between such answer and that of an infant put in by guardian is, because an infant improves and mends, and therefore is to have a day to show cause after he comes of age; but the other grows worse, and is to have no day.9 § 108. Suits against married women. In suits against a married woman by a third person, her husband, if not civilly dead or permanently absent from the State, should be joined with her as a co-defendant; 1 except in States where she has the same rights and liabilities as a spinster,2 or when she is sued in a representative capacity. She may, however, answer separately 224, 225; citing Leving v. Caverly, Prec. Ch. 229. $108. 1 Story's Eq. Pl., § 71; Calvert on Parties, Book III, ch. xxx; Hulme v. Tenant, 1 Brown, Ch. C. 16; Taylor v. Holmes, 14 Fed. 498, 514. 2 Lorillard v. Standard Oil Co., 2 Fed. 902. But see Taylor v. Holmes, 14 Fed. 499, 514; Douglas v. Butler, 6 Fed. 228; U. S. v. Pratt Coal & Coke Co., 18 Fed. 708; O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840. 3 Moore v. Meynell, 2 Vern. 614, note. from her husband. A bill filed in the name of a married woman suing alone, may be amended by the addition of a next friend, when necessary.5 § 109. Foreign executors and administrators as defendants. In the absence of a statute giving its courts jurisdiction over them, foreign executors and administrators are not subject to suit, unless they have assets within the jurisdiction where the suit was filed. In the latter case, they are liable, as trustees, to account for the same, to those entitled thereto. But a Federal court has no power to require an executor or administrator to deliver a fund to an administrator appointed in another State. The exemption from the jurisdiction may be waived.5 A foreign executor, by filing a bill for an accounting of the affairs of a firm to which his testator belonged, waives his privilege and requesting an adjudication of the claims of partnership creditors waives his privilege as against the partners and such creditors as intervene.6 7 A State statute which authorized a foreign executor or administrator to sue or be sued was enforced in the New York State courts in an action at law under the Sherman Anti-Trust Act, although the Federal court had previously quashed a summons in a similar action against the same person. Subsequently, the Federal Court directed that service of a summons in a similar action be set aside, unless the defendant, upon the plaintiff's demand, should show that one of such States would recognize a judgment against a foreign executor in the pending action. 4 Duke of Chandos v. Talbot, 2 P. Wms. 372. 5 Douglas v. Butler, 6 Fed. 228. § 109. 1 Vaughn v. Northrup, 15 Pet. 1, 10 L. ed. 639; Courtney v. Pradt, 196 U. S. 89, 49 L. ed. 398; s. c., 135 Fed. 818; Lewis v. Parrish, C. C. A., 115 Fed. 285; Skiff v. White, 127 Fed. 175; Lawrence v. Southern Pac. Co., 177 Fed. 547; Story's Eq. Pl., § 179; Thorburn v. Gates, 225 Fed. 613. 2 Sandilands v. Innes, 3 Sim. 363; McNamara v. Dwyer, 7 Paige (N. Y.), 239, 32 Am. Dec. 627; Campbell v. Tousey, 7 Cow. (N. Y.) 64. 3 Lewis v. Parrish, C. C. A., 115 Fed. 285. See Columbia Law Rev., June 1911, quoted in N. Y. L. J. June 8, 1911. 4 Watkins v. Eaton, C. C. A., 183 Fed. 384. 5 Lackner v. McKechney, C. C. A., 252 Fed. 403. 6 Ibid. 7 N. Y. Code of Civil Procedure, $ 1836a. 8 Thorburn v. Gates, 184 N. Y. App. Div. 443. 9 Thorburn v. Gates, 230 Fed. 922, s. c., 225 Fed. 613. CHAPTER IV. PARTIES. § 110. General rule as to parties. In ordinary cases, all persons should be made parties to a suit in equity, who are directly interested in obtaining or resisting the relief prayed for in the bill or granted in the decree. If interested in obtaining the relief prayed for, they should join as plaintiffs; unless some refuse to appear in that capacity, when the rest should make them defendants.2 This rule has been also stated by the expressions: that "all persons interested in the subject of the suit should be before the court;"3 and that "all persons who have in the object or objects of the suit an interest or interests apparent upon the record, are necessary parties."4 "In determining who are proper parties to a suit, courts of: equity are guided by two leading principles. One of them is a principle admitted in all courts of justice in this country, upon questions affecting liberty, or life, or property; namely, that no proceedings shall take place with respect to the rights of any one, except in his presence. Thus a decree of a court of equity binds no one who is not to be regarded, according to the rule of the court, either as a party, or else as one who claims under a party, to the suit. The second is a principle which in this country is peculiar to courts of equity; namely, that when § 110. 1 Calvert on Parties, Book I ch. i, and cases there cited. 2 Harding v. Handy, 11 Wheat. 103, 6 L. ed. 429; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Fallows v. Williamson, 11 Ves. 313; Calvert on Parties, Book I, ch. viii. But see Hicklin v. Marco, 56 Fed. 549. For the rule in patent cases, see infra, § 112. 3 Sir William Grant in Wilkins v. Fry, 1 Mer. 244, 262. 4 Calvert on Parties (2d ed.), p. 13, and cases there cited. Iron Cliffs Co. v. Negaunee Iron Co., 197 U. S. 463, 49 L. ed. 836; Clagett v. Duluth Tp., 143 Fed. 824; holding that an injunction restraining a municipal corporation from buying bonds is no defense to an action against it by a bondholder, who was not a party to that suit. 677 |