be made by one of the masters of the court; and if he reports that the suit is not for the benefit of the infant, the court will stay the proceedings. If two suits for the same purpose are instituted in the name of an infant by different persons, acting as his next friend, the court will direct an inquiry, to be made in the same manner, which suit is more for the benefit of the infant, and, when that point is ascertained, it will stay the proceedings in the other suit.23

Infants must defend a suit by a guardian who is appointed by the court, and is usually their nearest relation, not concerned in interest in the matter in question.24 The person so appointed is usually styled the "guardian ad litem." A guardian ad litem need not be a relative of the infant.25 It is the duty of the court to see that the rights of infants are not prejudiced or abandoned by the answers of their guardians.26 The guardian must put in a proper answer, and is liable for the costs of a scandalous or impertinent answer.27 In the chancery courts of England, and in many of the states of the Union, a regular guardian cannot, in that capacity, appear and make defense in court for his wards, but a guardian ad litem must be appointed for that purpose. In some states the rule is

otherwise. 29

28

23 Story, Eq. Pl. § 60; Mitford, Eq. Pl. 27, 28; Da Costa v. Da Costa, 3 P. Wms. 140; Gage v. Stafford, 1 Ves. Sr. 544; Turner v. Turner, 2 Eq. Abr. 238; Garr v. Drake, 2 Johns. Ch. (N. Y.) 542; Fulton v. Rosevelt, 1 Paige (N. Y.) 178.

Mitford, Eq. Pl. 30;

24 Story, Eq. Pl. § 70; Enos v. Capps, 12 Ill. 255; McDermott v. Thompson, 29 Fla. 299, 10 So. 584; Jarvis v. Crozier, 98 Fed. 753.

25 Rhoads v. Rhoads, 43 Ill. 239; Bartlett v. Batts, 14 Ga. 539.

26 Stark v. Brown, 101 Ill. 395; Peak v. Pricer, 21 Ill. 164; Stephens v. Van Buren, 1 Paige (N. Y.) 479; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304; Richards v. East Tennessee, V. & G. Ry. Co., 106 Ga. 614, 33 S. E. 193.

27 1 Daniell, Ch. Pl. & Pr. (5th Ed.) 163, cited in Beach, Mod. Eq. Pr. § 48; Dow v. Jewell, 21 N. H. 486; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304.

28 Cowan v. Anderson, 7 Cold. (Tenn.) 284.

29 Cowan v. Anderson, 7 Cold. (Tenn.) 284. See Johnson v. Water. house, 152 Mass. 585, 26 N. E. 234.

Where a bill is filed on behalf of an infant by his next friend, the infant cannot be personally charged with costs, unless, when he arrives at his majority, he adopts the proceeding and elects to prosecute the suit. If the suit was improperly brought, and the infant, when he arrives at his majority, elects to abandon it, he may apply for a reference to ascertain the fact, and the bill will then be dismissed, with costs to be paid by the next friend; but if the suit was properly instituted for the benefit of the infant, and at his majority he elects to abandon it, he must, upon the dismissal of the bill, pay the costs of his next friend as well as those of the adverse party. Where the suit is terminated before the infant becomes of age, the next friend will be chargeable with the costs, unless there be a fund belonging to the infant under the control of the court, and it appears that the suit was brought in good faith, and with a bona fide intent to benefit the infant, in which case the court will direct the costs to be paid out of the fund.30 In a suit brought by an infant, not by guardian or next friend, when the infant becomes of age no amendment nor appearance of a guardian or next friend is necessary to obviate the objection that the suit was improperly brought.31 An answer by an infant may be amended, on motion, when he attains full age.32 Where a general answer has been put in by a guardian ad litem, the infant, upon arriving at full age and before decree, is entitled, as a matter of right, to an order for leave to put in a new answer, upon a showing to the satisfaction of the court that the new or further answer is necessary to protect his rights.33

§ 12. Suits by and against married women.

In the absence of statute, a married woman could not sue

30 Waring v. Crane, 2 Paige (N. Y.) 79; Anonymous, 4 Madd. 461; Pearce v. Pearce, 9 Ves. 548; Whittaker v. Marlar, 1 Cox, 285. See, also, Wainwright v. Wilkinson, 62 Md. 146.

31 Woodman v. Rowe, 59 N. H. 453.

82 Winston v. Campbell, 4 Hen. & M. (Va.) 477.

33 Stephenson v. Stephenson, 6 Paige (N. Y.) 353. son v. Maxwell Land Grant & Ry. Co., 3 Gild. (N. M.)

See, also, Thomp

448, 6 Pac. 193.

except jointly with her husband, save where her husband was banished, or had abjured the realm, or had been transported for felony, or in some other privileged cases of a kindred nature. The rule in suits in equity is, in ordinary cases, the same as at law. There are, however, some exceptions in equity which are wholly unknown at law. Thus, if a married woman claims rights in opposition to the rights claimed by her husband, she is allowed to sue by next friend. No person can, however, exhibit a bill as her next friend without her consent.34 In cases where the wife has a separate property, it is often stated that in respect to this property she may sue and be sued in equity as a feme sole. In practice, where a suit is brought by the wife for her separate property, the husband is sometimes made a co-complainant, but this practice is incorrect, and in all such cases she ought to sue as sole complainant, by her next friend, and the husband should be made a party defendant.35 When the wife sues or is sued by a stranger in respect to such separate property, the husband is always joined as a party defendant, if he is within the country and capable of being made a party; if not, the suit, if against the wife to charge her separate estate, may be carried on without him, with the leave and under the direction of the court.36 At law, neither the husband nor wife can sue the other, but in equity the husband may sue the wife, or the wife the husband.37

When a married woman is sued, ordinarily her husband must be joined with her in the suit, and their answer must also be joint. A married woman may, however, be made a defendant and answer as a feme sole; as, for example, whenever her husband is complainant in the suit, and sues her as a defendant, or where her husband is an exile, or has abjured the realm, or has been transported under a criminal sentence, or is an alien enemy. Generally, however, she cannot answer separately when

24 Story, Eq. Pl. § 61; Mitford, Eq. Pl. 28.

35 Story, Eq. Pl. § 63.

36 Story, Eq. Pl. § 63.

37 Story, Eq. Pl. § 62.

her husband is joined, or ought to be joined, as a defendant, without an order of court for that purpose.3

38

In most of the states of the Union it is now provided by statute that the disabilities of a married woman to sue and be sued are removed.

§ 13. Idiots, lunatics, and persons of weak mind.

Some confusion exists in regard to the right of persons mentally unsound to sue in courts of equity. Where such a person has been adjudged to be non compos mentis, and a legal committee or guardian has been appointed, he should sue by such representative.39 Sometimes informations are exhibited by the attorney general on behalf of idiots and lunatics, considering them as under the peculiar protection of the court, and particularly if the interests of the committee have clashed or may clash with their interests, or if they have no committee.40 The settled practice in England, in bringing suits in the chancery court for the benefit of lunatics, was to file the bill in the name of the lunatic by his committee, or to join the lunatic and committee as complainants, unless the object of the suit was to avoid an act done by the lunatic during his lunacy, in which case he might be joined or omitted.11 In some of the states of America, courts of equity are intrusted with a like authority as in England to appoint committees for idiots or lunatics, and in such cases the idiots and lunatics sue by their committees. In other states, idiots and lunatics

38 Story, Eq. Pl. § 71; Mitford, Eq. Pl. 104, 105. For full discussion of suits by and against married women, see Beach, Mod. Eq. Pr. §§ 51, 52; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 87-128. A statute authorizing suits between husband and wife does not oust equity of its jurisdiction unless the remedy is extinguished by a direct prohibitory provi sion in the statute. Woodward v. Woodward, 148 Mo. 241, 49 S. W. 1001. But see Larison v. Larison, 9 Ill. App. 27, to the contrary.

39 1 Daniell, Ch. Pl. & Pr. (5th Ed.) 82, 83; Beach, Mod. Eq. Pr. § 49; Story, Eq. Pl. § 64; Mitford, Eq. Pl. 29; Bird's Committee v. Bird, 21 Grat. (Va.) 712. See Ryder v. Topping, 15 Ill. App. 216.

40 Story, Eq. Pl. § 64; Mitford, Eq. Pl. 29.

41 West v. West, 90 Ala. 458, 7 So. 830; Cooper, Eq. Pl. 32.

are by law placed under guardians appointed by other courts, and ordinarily by the courts of probate of the state. In such cases the idiots and lunatics sue or defend suits by their proper guardians, unless some other is specially appointed for that purpose.42 When it is said by the writers that idiots and lunatics must sue by their committees, it is not meant that a suit is to be brought by the committee in his own name, merely describing him as the committee of a lunatic, but it is meant that the suit should be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming him, as in the case of an infant suing by his next friend, or that the suit should be prosecuted in the names of the lunatic and of his committee.43 Whether or not a person non compos mentis may sue by a next friend is a matter of dispute. Some authorities hold that where a person is insane, but has not been judicially adjudged so, suits, both at law and in equity, should be brought by some person as next friend.44 And it is said

that any person may volunteer to act as next friend and bring a suit for an insane person, when no committee has been appointed.45 In other jurisdictions it is held that a bill cannot be filed by the next friend, unless specially authorized by the court. In still other jurisdictions it is held that, independent of statute, an action cannot be maintained by one as next friend of an insane person.47 Mr. Justice Story says that where per

46

42 West v. West, 90 Ala. 458, 7 So. 830, quoting with approval Story Eq. Pl. § 65.

48 West v. West, 90 Ala. 458, 7 So. 830, citing Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24; Lombard v. Morse, 155 Mass. 136, 29 N. E. 205. See Taylor v. Lovering, 171 Mass. 303, 50 N. E. 612.

* Beach, Mod. Eq. Pr. § 49; Reese v. Reese, 89 Ga. 645, 15 S. E. 846. 45 Beach, Mod. Eq. Pr. § 49; Gray v. Parke, 155 Mass. 433, 29 N. E. 641; Plympton v. Hall, 55 Minn. 22, 56 N. W. 351; Beall v. Smith, 9 Ch. App. 91; Jones v. Lloyd, L. R. 18 Eq. 265; Smith v. Smith, 106 N. C. 498, 11 S. E. 188.

46 Dorsheimer v. Roorback, 18 N. J. Eq. 438; Palmer v. Sinnickson, 59 N. J. Eq. 530, 46 Atl. 517.

47 Tiffany v. Worthington, 96 Iowa, 560, 65 N. W. 817, citing Covington v. Neftzger, 140 Ill. 608, 30 N. E. 764, 33 Am. St. Rep. 261. But see Roughan v. Morris, 87 Ill. App. 642, holding that a suit may be main