sons are incapable of acting for themselves, although not strictly either idiots or lunatics, the suit may be brought in their name, and the court will authorize some suitable person to carry it on as their next friend, but that in every such case it is in the discretion of the court to allow the suit to proceed or not, and to order a stay of proceedings, or the bill to be taken off the file, if the suit is deemed improper.48

Idiots and lunatics defend a suit by their committees, who are, by an order of court, appointed guardian ad litem for that purpose, as a matter of course, in ordinary circumstances; but if an idiot or lunatic has no committee, or the committee has an interest opposite to that of the person whose property is intrusted to his care, an order may be granted appointing another person as guardian ad litem for the purpose of defending the suit.49 It is held in Virginia that it is only where there is no committee, or where there is a conflict of interest between the committee and the lunatic, that it becomes necessary to appoint a guardian ad litem for the insane defendant.50 If a per

son is in the condition of an idiot or lunatic, although not su

tained by a next friend for the purpose of protecting the estate of a lunatic through a receivership, until a conservator can be appointed to act for him, and distinguishing Covington v. Neftzger, 140 Ill. 608, 30 N. E. 764, 33 Am. St. Rep. 261. A bill filed by a volunteer, styling himself the next friend of an idiot, will, on motion of the defendant, be dismissed. Dorsheimer v. Roorback, 18 N. J. Eq. 438. In New Jersey, it is held that where a complainant, not an idiot or a lunatic, but aged and feeble minded, is permitted to proceed with his suit until his tes timony is all produced, before any objections are made for want of proper parties, the bill will not be dismissed, but a next friend will be then appointed. Lamb v. Lamb (N. J. Eq.) 23 Atl. 1009. In the absence of a statute to the contrary, a weak and feeble-minded person, of full age, may bring an action in his own name, without a next friend. Calhoun v. Mosley (Ga.) 40 S. E. 714; Menz v. Beebe, 95 Wis. 383, 70 N. W. 468, 60 Am. St. Rep. 120; Chicago & P. R. Co. v. Munger, 78 Ill. 300; Faulkner v. McClure, 18 Johns. (N. Y.) 134; Petrie v. Shoemaker, 24 Wend. (N. Y.) 85; Cameron's Committee v. Pottinger, 3 Bibb (Ky.) 11; Reed v. Wilson, 13 Mo. 28.

48 Story, Eq. Pl. § 66, citing Wartnaby v. Wartnaby, Jac. 377; Mitford, Eq. Pl. 30.

49 Story, Eq. Pl. § 70; Howlett v. Wilbraham, 5 Madd. 423.

50 Hinton v. Bland's Adm'r, 81 Va. 588.

found by an inquisition, or if, by reason of age or infirmities, he is reduced to a second childhood, the court will direct a guardian ad litem to be appointed for him to defend a suit against him.51 $ 14. Receivers.

Where a receiver is not authorized, either by statute or by the order of the court from which he derives his appointment, to sue in his own name, it has been held that he cannot do so, but must bring the action in the name of the corporation or party in whom the right of action was before the appointment of the receiver. While this was formerly held to be the rule, the doctrine seems to be well settled that courts possess the power to authorize receivers to sue in their own names.52 It is a general rule that, before suit is brought against a receiver, leave of the court by which he was appointed must be obtained.53 The institution of a suit against a receiver in his official capacity, without leave, is a contempt of court.5 What is the

54

51 Story, Eq. Pl. § 70; Mitford, Eq. Pl. 103, 104; Wilson v. Grace, 14 Ves. 172; Bearinger v. Pelton, 78 Mich. 109, 43 N. W. 1042; Van Horn v. Hann, 39 N. J. Law, 213. See, also, Stoner v. Riggs (Mich.) 87 N. W. 109; Woerner, Guardianship, p. 66, § 21; King v. Robinson, 33 Me. 120, 54 Am. Dec. 614. It is held in Pennsylvania, as a general rule, that a committee can waive nothing which the law stipulates for security of the party represented, and particularly in that relation to the freehold of the latter. Bennett v. Hayden, 145 Pa. 586, 23 Atl. 255; Wilson v. Bigger, 7 Watts & S. (Pa.) 111; Jennings v. Bloomfield, 199 Pa. 638, 49 Atl. 135.

52 Leonard v. Storrs, 31 Ala. 488; Manlove v. Burger, 38 Ind. 211; King v. Cutts, 24 Wis. 627; Yeager v. Wallace, 44 Pa. 294; Wilson v. Welch, 157 Mass. 77, 31 N. E. 712; Smith v. United States Express Co., 135 Ill. 279, 25 N. E. 525; State v. Wilmer, 65 Md. 178, 3 Atl. 252. See American Loan & Trust Co. v. Central Vermont R. Co., 84 Fed. 917. Statutes authorizing a receiver to sue in his own name are found in some states. Smith, Receiverships, 161, 163.

53 Texas & P. Ry. Co. v. Cox, 145 U. S. 593; Porter v. Sabin, 149 U. S. 473; Barton v. Barbour, 104 U. S. 126; Parker v. Browning, 8 Paige (N. Y.) 388, 35 Am. Dec. 717; Melendy v. Barbour, 78 Va. 544; Payne v. Baxter, 2 Tenn. Ch. 517; Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804; Earle v. Humphrey, 121 Mich. 518, 80 N. W. 370; Morgan v. Bucki, 30 Misc. Rep. 245, 61 N. Y. Supp. 929; Hollifield v. Wrightsville & T. R. Co., 99 Ga. 365, 27 S. E. 715.

64 Richards v. People. 81 111. 551.

effect of so doing upon the jurisdiction of the court is in dispute. In some cases it is held that failure to obtain leave is no bar to the jurisdiction of the court in which the suit is brought, but that the question is one of contempt, not of jurisdiction.55 A contrary doctrine prevails in some jurisdictions, including the federal courts.56 The protection which a court of equity gives to the possession of its receiver will only be accorded upon the application of the receiver,57 and the objection is waived by his appearance, after which a motion to dismiss on that ground will not be entertained.58

55 Mulcahey v. Strauss, 151 Ill. 70, 37 N. E. 702; St. Joseph & D. C. R. Co. v. Smith, 19 Kan. 225; Chautauque County Bank v. Risley, 19 N. Y. 369; Kinney v. Crocker, 18 Wis. 74; Lyman v. Central Vermont R. Co., 59 Vt. 167, 10 Atl. 346; Allen v. Central R. Co., 42 Iowa, 683.

5G Wiswall v. Sampson, 14 How. (U. S.) 52; Barton v. Barbour, 104 U. S. 126.

57 Mulcahey v. Strauss, 151 Ill. 70, 37 N. E. 702; Blumenthal v. Brain. erd, 38 Vt. 407.

58 Mulcahey v. Strauss, 151 Ill. 70, 37 N. E. 702; Elkhart Car-Works Co. v. Ellis, 113 Ind. 215, 15 N. E. 249; High, Receivers, § 261. Where the bill fails to state that it was filed by leave of court, it is demurrable. Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804. Where a Virginia receiver was sued in the District of Columbia, and pleaded that leave had not been obtained to sue him from the Virginia court having appointed him, a demurrer to the plea was overruled. Barton v. Barbour, 104 U. S. 126; De Graffenried v. Brunswick & A. R. Co., 57 Ga. 22.

Receivers Appointed by United States Courts. By Act Cong. March 3, 1887, every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or manager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was appointed, so far as the same shall be necessary to the ends of justice. This act was amended in 1888. The permission given by the third section of the act of congress of August 13, 1888, to sue receivers of federal courts for their acts in carrying on the business connected with the property, without leave of the appointing court, gives the right to sue in any court of competent jurisdiction. Louisville Southern R. Co.'s Receiver v. Tucker's Adm'r, 20 Ky. Law Rep. 1303, 49 S. W. 314; McNulta v. Lockridge, 141 U. S. 327; Texas & P. Ry. Co. v. Johnson, 151 U. S. 81; Central Trust Co. of New York v. East Tennessee, V. & G. Ry.

The receiver, being but the creature of the court, has no powers except those conferred upon him by the order of his appointment and the course and practice of the court. He cannot even institute or defend actions except by the authority of the court, and he must show such authority by proper allegations in his bill.59 The court may, however, either in the order Co., 59 Fed. 523. Under this act, receivers over property appointed by the United States courts are required to manage or operate the trust property according to the laws of the state in which it is situated, and may be sued in respect to its management or operation in the courts of such state, without the previous leave of the court appointing them, and in such cases a judgment rendered in the state court is conclusive upon the federal court as to the existence and amount of the plaintiff's claim, but the time and manner of its payment are to be controlled by the court under whose orders the receivers act. Reinhart v. Sutton, 58 Kan. 726, 51 Pac. 221; Dillingham v. Hawk, 23 U. S. App. 273, 60 Fed. 494. Such act does not grant power to sue in all cases, without limitation; and a complaint which states that a railroad company and its receiver appointed by a United States court wrongfully claim an interest in land is not sufficient to bring the action under the provision of such act, no act or transaction of the receiver being involved. Bennett v. Northern Pac. R. Co., 17 Wash. 534, 50 Pac. 496; Swope v. Villard, 61 Fed. 417; Central Trust Co. v. Chattanooga, R. & C. R. Co., 68 Fed. 685. This act does not authorize a suit by a stockholder of a corporation against its receiver and others without leave of court, on a cause of action which accrued before the receiver was appointed, and on which the receiver has refused to sue. Swope v. Villard, 61 Fed. 417. The act was intended to place receivers of railroads upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating railroads, and as respects the modes of service of process. Eddy v. Lafayette, 4 U. S. App. 247, 49 Fed. 807; Central Trust Co. v. St. Louis, A. & T. Ry. Co., 40 Fed. 426. The federal statute does not authorize the bringing of a suit without leave against a receiver to establish a right to the property placed in his custody adverse to his right thereto. J. I. Case Plow Works v. Finks, 52 U. S. App. 253, 81 Fed. 529. See, also, on the right to sue federal receivers, Stolze v. Milwaukee & L. W. R. Co., 104 Wis. 47, 80 N. W. 68.

59 High, Receivers, §§ 201, 208; Booth v. Clark, 17 How. (U. S.) 331; Davis v. Snead, 33 Grat. (Va.) 705; Battle v. Davis, 66 N. C. 252; Screven v. Clark, 48 Ga. 41; Davis v. Ladoga Creamery Co., 128 Ind. 222, 27 N. E. 494; Peabody v. New England Water-Works Co., 80 Ill. App. 461; Coope v. Bowles, 28 How. Pr. (N. Y.) 11; Green v. Winter, 1 Johns. Ch. (N. Y.) 60; Wynn v. Newborough, 3 Brown, Ch. 88.

of appointment or by subsequent order entered in the cause, give the receiver general leave to commence suits.60

A receiver appointed in a foreign jurisdiction cannot, as a strict matter of right, maintain a suit in the courts of another' jurisdiction, but, on the principle of comity, he will be permitted to sue and defend as a foreign receiver in courts of other states than that in which he is appointed, except where the rights of the citizens of the state or forum are prejudiced thereby, or where it would be in contravention of the policy of the state.61

60 Lathrop v. Knapp, 37 Wis. 307; Parker v. Nickerson, 137 Mass. 487. 61 Booth v. Clark, 17 How. (U. S.) 332; Castleman v. Templeman, 87 Md. 546, 40 Atl. 275; Security Trust Co. v. Dodd, 173 U. S. 624; Iglehart v. Bierce, 36 Ill. 133; Chicago, M. & St. P. Ry. Co. v. Keokuk Northern Line Packet Co., 108 111. 317; Woodward v. Brooks, 128 Ill. 222, 20 N. E. 685; Ex parte Norwood, 3 Biss. 504, Fed. Cas. No. 10,364; Le Fevre v. Matthews, 39 App. Div. 232, 57 N. Y. Supp. 129; Lycoming Fire Ins. Co. v. Wright, 55 Vt. 526; Zacher v. Fidelity Trust & Safety-Vault Co., 106 Fed. 593; Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 23 L. R. A. 52.

Considerable discussion has been had in the courts concerning the right of a receiver of a corporation appointed by a court of competent jurisdiction in one state to maintain an action in another state for the recovery of a demand due the estate of which he is receiver. In Wigton v. Bosler, 102 Fed. 70, it was held that a receiver of a corporation cannot, as a matter of right, maintain an action in another state for the recovery of a demand due the estate of which he is receiver, and that even if the rule which permits the receiver of a corporation to sue in a foreign jurisdiction, as a matter of comity, be recognized by the federal courts, it will not be extended to a demand for a stockholder's liability under an assessment ordered by the court in which the receiver was appointed in proceedings to which the stockholder was not a party. The court cites with approval High, Receivers, §§ 239-241, where it is said: "Upon the question of the territorial extent of a receiver's jurisdiction and powers, for the purpose of instituting actions connected with his receivership, the prevailing doctrine established by the supreme court of the United States, and sustained by the weight of authority in various states, is that the receiver has no extraterritorial jurisdiction or power of official action, and cannot, as a matter of right, go into a foreign state or jurisdiction, and there institute a suit for the recovery of demands due to the person or estate subject to his receivership. His functions and powers for the purposes of litigation are held to be limited to the courts of the state within which