be appointed by the court as guardian ad litem of said defendant, A. B., In this suit, to appear and defend the said suit for the said A. B.

J. G.,

Solicitor for Petitioner.

[Conclude with verification as in bill.]

§ 181. Form of order appointing guardian ad litem.

[Title of court and cause.]

X. Y., Petitioner.

On reading and filing the petition of the complainant for the appointment of a guardian ad litem for the defendant, A. B., and it appearing to the court that a summons duly issued out of this court on the day of A. D. —, returnable to the

directed to the sheriff of

term county,

of this court, A. D. commanding him that he summon the defendant, A. B., and that said summons was duly served by the sheriff of

A. B. by delivering a true copy thereof to him on the

A. D. ——, being more than

county on the said day of days before the return day thereof, and it further appearing to the court that the said defendant, A. B., is a male infant or minor under the age of twenty-one years; that said A. B. has not appeared in this cause; that no guardian ad litem has been appointed for said A. B., and no application for the appointment of a guardian ad litem has been made by or on behalf of said A. B.; and that the said A. B. and his father, J. B., have been duly served with a copy of said petition, and have had due notice of this motion; and that E. R. has consented to act as guardian ad litem of said A. B.: On motion of complainant's solicitor,

It is ordered that E. R., a solicitor of this court, and a fit and suitable person, be, and he is hereby, appointed guardian ad litem of said defendant, A. B., in this suit, and is authorized to appear and defend the said sult for the said A. B. as said guardian ad litem.

182. Appearance by persons non compos mentis.

An idiot or lunatic, when made a defendant to a suit, must appear and defend by the committee of his estate, if one has been appointed. In cases where there is a committee, he generally applies by motion or petition to be appointed guardian to appear and defend.82 If the idiot or lunatic has no committee, or the committee has an interest opposite to that of the

82 1 Barbour, Ch. Pr. 86; Westcomb v. Westcomb, 1 Dickens, 233; Snell v. Hyat, 1 Dickens, 287; Carew v. Johnston, 2 Schoales & L. 293; Lee v. Ryder, 6 Madd. 294.

idiot or lunatic, an order may be obtained appointing another person as guardian for the purpose of defending the suit against him.83 It is said that, if the bill states him to be a lunatic, it is a motion of course to apply for the appointment of a guardian ad litem; if it does not do so, the motion must be supported by affidavit or other evidence. The application for the appointment of a guardian to appear and answer for the defendant may in some cases be made by the complainant.85 A practice similar to that of appointing a guardian for a person non compos mentis is pursued in cases where the defendant is so infirm in body and mind as to be incapable of putting in an answer, or where he is deaf and dumb.86 It is held that where the defendant has a committee, and he refuses to appear, application should be made that he appear in a limited time, or that a new committee be appointed.87 The application for the appointment of a guardian ad litem, whether made by the complainant or by some person on behalf of the defendant, may be either by petition or by motion, supported by an affidavit of the facts. If made by the complainant, it is said to be the proper practice to give notice to the relatives of the defendant, or the person with whom he resides,88

831 Barbour, Ch. Pr. 86.

841 Barbour, Ch. Pr. 86; 1 Fowler, Exch. Pr. 477.

851 Barbour, Ch. Pr. 86.

861 Barbour, Ch. Pr. 87; Wilson v. Grace, 14 Ves. 172; Markle v. Markle, 4 Johns. Ch. (N. Y.) 168; Gason v. Garnier, 1 Dickens, 286; 1 Hoffman, Ch. Pr. 177.

CHAPTER IX.

PROCEEDINGS BY DEFENDANT PREVIOUS TO PUTTING IN HIS

183. Employing solicitor.

DEFENSE.

The first step usually taken by a defendant intending to defend the suit, if he is not himself a solicitor, is to employ a solicitor to appear for him. A special authority is not necessary to enable a solicitor to appear in the cause. He may do so under a general authority to act as solicitor for his client. solicitor ought not to appear for a defendant without some authority.1 A defendant may appear in person, however, if he chooses.2

§ 184. Motion to take bill from files.

A

If the bill has been filed in the name of an imbecile, the defendant may move to strike it from the files. Such motion should be made before answer. It seems that a suit cannot be dismissed on account of imbecility arising subsequent to its insti tution.3

§ 185. Excepting to a bill for scandal and impertinence.

A defendant may except to a bill containing any scandalous or impertinent matter, and thus secure the expunging of such matter. According to the ordinary practice of the court, a bill cannot be referred for impertinence after the defendant has

11 Barbour, Ch. Pr. 100; Wright v. Castle, 3 Mer. 12. See, on subject of unauthorized appearances on behalf of defendant by solicitor, supra, § 172.

21 Barbour, Ch. Pr. 100.

81 Barbour, Ch. Pr. 100; 1 Hoffman, Ch. Pr. 211; Wartnaby v. Wartnaby, 1 Jac. 377. See, also, supra, § 119, for unauthorized filing of bill. 41 Hoffman, Ch. Pr. 195-199; 1 Barbour, Ch. Pr. 101.

5

answered or has submitted to answer. It may be referred for scandal at any time, and even, by leave of the court, upon the application of a stranger to the suit. The practice on exceptions to bills for scandal and impertinence is in most jurisdictions substantially the same as that upon exceptions to answers, and the reader is referred to that part of this work where exceptions to answers are considered.R

§ 186. Form of exceptions to a bill for scandal or impertinence. [Title of court and cause.]

Exceptions taken by R. R., defendant, to the bill of complaint of J. D., complainant, filed against him:

First. For that the allegation in the third line of the third page of the said bill, in the words following, to-wit [specify objectionable matter], is impertinent, and ought to be expunged.

Second. For that the allegations in the said bill, commencing, in the sixth line of the third page thereof, with the words following, to-wit [specify objectionable matter], are scandalous and impertinent, and should be expunged.

In all of which particulars this defendant humbly insists that the complainant's said bill of complaint is irrelevant, impertinent, and scandalous; wherefore the said defendant does except thereto, and humbly prays that the impertinence and scandal of the said bill of complaint excepted to as aforesaid may be expunged, with costs.

J. K.,

Solicitor for Defendant.

187. Motion to produce papers.

R. R., Defendant.

The question of the right of the defendant to apply to the court to have the complainant produce certain documents for his

Story, Eq. Pl. § 270; Cooper, Eq. Pl. 19.

Story, Eq. Pl. § 270.

Story, Eq. Pl. § 270; Coffin v. Cooper, 6 Ves. 514; Williams v. Douglas, 5 Beav. 82. That a stranger cannot refer a bill for scandal, see Anonymous, 4 Madd. 252. For practice concerning referring bills for scandal, see Woodward v. Astley, Bunb. 304; Wallis v. Atkinson, Fowler, Exch. Pr. 449; Ferrar v. Ferrar, 1 Dickens, 173; Wagstaff v. Bryan, 1 Russ. & M. 28; David v. Williams, 1 Sim. 17; Portsmouth v. Fellows, 5 Madd. 450; Robertson v. Graham, 3 Dow, 274.

8 See post, § 333 et seq.

inspection is involved in much confusion, and is largely regulated by statute or rule of court. It is said that the court will, under special circumstances, order that the complainant should. not compel the defendant to answer until within a given time after the production of certain documents set forth in the bill, when it appears that their production is essential to enable the defendant to put in his answer.10 It would seem to be the better

Ryder v. Bateman, 93 Fed. 31; 15 & 16 Vict. c. 18, § 20; Boyd v. United States, 116 U. S. 616. See, for production of documents, Dickinson, Eq. Pr. 151, 218; 2 Daniell, Ch. Pl. & Pr. (6th Ed.) 1817 et seq.; l'ollock, Prod. Documents. See post, § 370.

10 1 Barbour, Ch. Pr. 101. Mr. Barbour cites, in support of this statement, Princess of Wales v. Earl of Liverpool, 1 Swanst. 114, 1 Wils. Ch. 113, 2 Wils. Ch. 29, where it was held that the proper order was not one to produce the document for inspection, but to enlarge the time of the Jefendant for answering the bill until such time as the complainant should deposit the document with the clerk of the court for the inspection of the defendant, and an order to such effect was entered. Jones v. Lewis, 2 Sim. & S. 242, is also cited by the author in support of the last-mentioned proposition. But the order entered in the last-named case was discharged by Lord Eldon, as appears by the following memorandum in the original edition of 4 Sim. 324, which is generally left out of the reprints and decisions of the English Chancery Reports. Such memorandum is as follows: "The order made by Sir J. Leach, vice-chancellor, in Jones v. Lewis, reported in 2 Sim. & S. 242, was discharged by Lord Eldon, * without costs." This has generally been regarded as an indirect overruling of the Case of the Princess of Wales, and has been so treated by most of the judges who have subsequently considered the question. But some of them have adhered to the Princess of Wales Case, strictly limiting it, however, to the peculiar circumstances of that case, the most important of which was that in that case and in Jones v. Lewis the person whose signature was said to be forged was dead, wherefore there was more reason or justice in departing from the ordinary rule, and allowing the executors an inspection of the document in order to determine whether or not there had been a forgery committed. Ryder v. Bateman, 93 Fed. 31. For English cases refusing to follow the Princess of Wales v. Earl of Liverpool, see Penfold v. Nunn, 5 Sim. 409; Milligan v. Mitchell, 6 Sim. 186; Brown v. Newall, 2 Mylne & C. 558; Jackson v. Sedgwick, 2 Wils. Ch. 167; Taylor v. Heming, 4 Beav. 235; Bate v. Bate, 7 Beav. 528, where Lord Langdale explains the distinction between his rulings. For other English cases where such a motion by defendant has been denied, see Pickering v. Rigby, 18 Ves. 484; Wiley v. Pistor, 7 Ves. 411; Micklethwait v. Moore, 3 Mer. 292; 2 Dickens, 778;

V.