proceed as an equity cause on its removal into the federal court.44 A repleader in such a case is customary, but not indispensable, if the allegations in the pleadings in the state court are sufficient.45 Where the suit in the state court unites legal and equitable grounds of relief or of defense, as authorized by the statutes of the state in which the suit was brought, it may, in the federal court, be recast into two cases, one at law and one in equity, and in such a case a repleader is necessary. 46

44 Perkins v. Hendryx, 23 Fed. 419.

45 Foster, Fed. Pr. (3d Ed.) § 391; Phelps v. Elliott, 26 Fed. 883. 46 Perkins v. Hendryx, 23 Fed. 418.

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CHAPTER II.

PERSONS CAPABLE OF SUING AND BEING SUED IN EQUITY.

§ 8. In general.

As a general rule, all persons, of whatever sort or condition, are capable of instituting suits in equity. This rule is subject to very few exceptions, and extends from the highest person. in the state to the most distressed pauper.1

The incapacities to sue are of two sorts: First, those which are absolute; and, secondly, those which are partial. The absolute are such as, while they continue, wholly disable the party to sue. The partial are such as disable the party to sue by himself alone, without the aid of another. The absolute incapacities in England were outlawry, excommunication, attainder, and alienage. In America the two former are either wholly unknown, or, if known at all, are of very limited local existence.2 Partial incapacity to sue exists in the case of infants, of married women, of idiots and lunatics, and other persons who are incapable, or are by law specially disabled to sue in their own names. Such, for example, as in some of the states of America, are common drunkards and spendthrifts who are under guardianship.3

In general, it may be stated that those persons who may sue in equity may also be sued. A bill may be exhibited against all bodies politic and corporate, against all persons not laboring under any disability, against aliens, and against infants, married women, idiots, and lunatics, and also generally against persons by law disabled to institute or maintain a suit, for they

1 Beach, Mod. Eq. Pr. § 40; Story, Eq. Pl. § 50; Cooper, Eq. Pl. 24. See Mitford, Eq. Pl. 20 et seq.

2 Mitford, Eq. Pl. 226, 229; Story, Eq. Pl. § 51; Evans v. Cassidy, 11 r. Eq. 243.

Story, Eq. Pl. § 56.

cannot plead their disability in their defense. There is, however, some diversity as to the extent and manner of making defense by persons who labor under an absolute or a partial incapacity, as will hereafter be shown. If the incapacity to sue does not appear on the face of the bill, the defendant must take advantage of it by plea; but if the incapacity appears on the face of the bill, he may demur."

§ 9. Alienage.

Alienage alone does not constitute a general disability to sue in courts of law or of equity. An alien friend has a right to sue in any court. An alien enemy is incapable of suing while he remains an enemy; at least, unless under very special circumstances. The disability of an alien enemy is not absolute to the extent of destroying all his future right to sue when peace has actually taken place between the countries. The true effect of such disability is only to suspend the commencement of any suit during the war, or, if the suit is already commenced, to suspend its further progress until the return of peace. Alienage of a defendant is no bar to a suit against him. The liability of an alien enemy to be sued in the courts of a hostile country carries with it the right to use all the means and appliances of defense. He may have process to compel the appearance of his witnesses, or a discovery, and may sue out a writ of error. The liability and the right are inseparable. A different result would be a blot upon any jurisprudence and civilization, and would be contrary to the first principles of a social compact,

8

Story, Eq. Pl. §§ 67, 68; Mitford, Eq. Pl. 30, 102, 103.

Nelms v. Edinburg-American Land Mortgage Co., 92 Ala. 162, 9 So. 141; Liddell v. Carson, 122 Ala. 518, 26 So. 133.

6 Story, Eq. Pl. § 51; Daubigny v. Davallon, 2 Anstr. 467. It has been doubted whether this doctrine is applicable to bills of discovery. Albretcht v. Sussmann, 2 Ves. & B. 323. Ordinarily, there would seem to be no ground for distinction between bills for discovery and bills for relief. Daubigny v. Davallon, 2 Anstr. 467; Story, Eq. Pl. § 53.

7 Story, Eq. Pl. § 54; Bell v. Chapman, 10 Johns. (N. Y.) 183.

8 Masterson v. Howard, 18 Wall. (U. S.) 99; McNair ▾ Toler, 21 Minn.

175.

An alien married

and of the right administration of justice. woman, abandoned by her alien husband in a foreign country, may sue and be sued as a feme sole.10 It is not a bar to a suit by an alien that a remedy like the one sought by him is not reciprocally allowed to aliens in the country to which he belongs,11 and he does not lose his right to sue in the federal courts by residing in one of the states of the Union.12

10. Suits by and against sovereigns.

Foreign sovereigns may sue in the courts of equity of another country, but no sovereign is so entitled to sue unless he has been recognized by the government of the country in which the suit is brought.13 Foreign sovereigns are not suable in the courts of a foreign country, although they may be personally found within the dominions of such foreign country.14 They do not, by appearing in a suit against them, waive their right to demur for want of jurisdiction. 15 A distinction has been suggested where a foreign sovereign assumes the character of a trader; and whether a suit in rem will lie against the property of a foreign sovereign does not appear to be definitely settled.16 In England the king and queen, although they may sue, are not liable to be sued; and in America a similar exemption generally belongs to the state or government.17

McVeigh v. United States, 11 Wall. (U. S.) 259; Masterson v. Howard, 18 Wall. (U. S.) 99.

10 McArthur v. Bloom, 2 Duer (N. Y.) 151.

11 Taylor v. Carpenter, 2 Woodb. & M. 1, Fed. Cas. No. 13,785.

12 Breedlove v. Nicolet, 7 Pet. (U. S.) 413.

13 Story, Eq. Pl. § 55; King of Prussia v. Kuepper's Adm'r, 22 Mo. 550; Hullett v. King of Spain, 2 Bligh (N. S.) 51; Calvert, Parties, c. 3, § 27, pp. 310, 311; King of Spain v. Oliver, 2 Wash. C. C. 429, Fed. Cas. No. 7,814.

14 Story, Eq. Pl. § 69a; Brunswick v. King of Hanover, 6 Beav. 1. 15 Beach, Mod. Eq. Pr. § 43; Brunswick v. King of Hanover, 6 Beav. 1. 16 The Charkieh, L. R. 4 Adm. & Ecc. 59.

17 Story, Eq. Pl. § 69. For right to make attorney general party defendant in England where the interests of the crown, or of those under its particular protection, are concerned, and for general consideration of (17)

11. Infants.

An infant is incapable by himself of exhibiting a bill, as well on account of his supposed want of discretion as of his inability to bind himself and to make himself liable to the costs of the suit. When, therefore, an infant claims a right or suffers an injury, on account of which it is necessary to apply to a court of equity, he must proceed in the name of an adult, as his next friend, who is considered an officer of the court, and is responsible accordingly. Even though the infant has a guardian, he may sue by next friend.18 The next friend is no party to the suit, in the technical sense of the term.19 Any person of full age and sound mind may institute a suit. on behalf of an infant, without any previous authority from the infant or from the court.20 The next friend should zealously watch and protect the interests of the infant involved in the litigation. If he fails in his duty, or if he have an interest in the subject-matter of the litigation antagonistic to the interests of the infant, the court can and should remove him and appoint another.21 If he does not lay his case properly before the court, by collusion, neglect, or mistake, a new bill may be brought on behalf of the infant.22 If it be represented to the court that the suit brought in the name of the infant is not for his benefit, an inquiry into the facts will be directed to

right to sue the state, see Story, Eq. Pl. § 69; Mitford, Eq. Pl. 30, 102; Balch v. Wastall, 1 P. Wms. 445; Dolder v. Bank of England, 10 Ves. 352; Carr v. United States, 98 U. S. 433.

18 Story, Eq. Pl. §§ 57, 59; Mitford, Eq. Pl. 25, 26; Hooks v. Smith, 18 Ala. 338; Deford v. State, 30 Md. 179; Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690. It is said to be doubtful whether an infant can sue by his guardian. Story, Eq. Pl. § 58; Offley v. Jenney, 3 Ch. R. 92.

19 Beach, Mod. Eq. Pr. § 45; Baltimore & O. R. Co. v. Fitzpatrick, 36 Md. 619.

20 Beach, Mod. Eq. Pr. § 44; Story, Eq. Pl. § 57. For right of father to institute suit, see Woolf v. Pemberton, 6 Ch. Div. 19; Rue v. Meirs, 43 N. J. Eq. 377, 12 Atl. 369.

21 Beach, Mod. Eq. Pr. § 45; Kingsbury v. Buckner, 134 U. S. 650; Phillips v. Phillips, 185 Ill. 629, 57 N. E. 796; Jarvis v. Crozier, 98 Fed. 753; In re Burgess, 25 Ch. Div. 243.

22 Story, Eq. Pl. § 59; Mitford, Eq. Pl. 26, 27.