S. E. 383. And he may, in his answer, admit such facts as do not tend to prejudice his ward: Ralston v. Lahee, 8 Iowa, 17, 74 Am. Dec. 291. He may also stipulate as to the condition of a bank account and so obviate the necessity of introducing the bank books in evidence, such not prejudicing the infant: Rarick v. Vandevier, 11 Colo. App. 116, 52 Pac. 743. In Biddinger v. Wiland, 67 Md. 359, 10 Atl. 202, an infant defendant was regularly summoned, and, under the law then in existence, a commission to assign a guardian and take her answer was issued, and returned unexecuted. A second commission was issued, and also returned unexecuted. Meanwhile, and before the court, under the new rules, appointed a guardian to defend, the case being at issue as to other parties, adults, testimony was taken which fully established plaintiff's case. After that testimony was taken and returned, the court appointed a solicitor of the court to answer and defend for the infant, who did so, submitting the infant's rights to the protection of the court. It was then agreed in writing between the plaintiff's solicitor and the guardian, that the case should be submitted without argument to the court, the testimony already taken to have the same effect as if taken by the examiner after the infant's answer had been filed. This agreement was objected to as unauthorized, but the court held it proper; that the guardian must be presumed to have done his duty, and knew of no other testimony which could be procured in the infant's behalf; and the judgment was affirmed.

A guardian may adopt a report of the division of land in a partition suit, after the infants have been served, and so avoid the necessity for another division, where they were not made parties to the suit, and it was therefore reversed: Kentucky etc. Land Co. v. Elliott, 12 Ky. Law Rep. 812, 15 S. W. 518.

e. Statutory Modification of the Rule.-Where by statute a different rule is prescribed as to the power of a guardian ad litem to admit material facts in the conduct of a trial, or to control the case with as full authority as the minor could if he were of full age, such guardian may bind his ward by stipulation in the nature of a waiver of proof: Le Bourgeoise v. McNamara, 82 Mo. 189, affirming 10 Mo. App. 116.

VI. Power of Compromise.

The general rule undoubtedly is, that the next friend or guardian ad litem of an infant has no power to compromise or settle the claim of his ward, and no agreement to that end can bind his ward, unless sanctioned by the court: Isaacs v. Boyd, 5 Port. (Ala.) 388; Johnson v. McCann, 61 Ill. App. 110; Edsall v. Vandemark, 39 Barb. 589; and especially is this so after it has been prosecuted to a judgment: O'Donnell v. Broad, 2 Pa. Dist. Rep. 84; Fletcher v. Parker (principal case), 53 W. Va. 422, 44 S. E. 422. So if a next friend commutes a debt or judgment due his infant ward, he is responsible for the

amount thereof and interest: Forbes v. Mitchell, 24 Ky. (1 J. J. Marsh.) 440; or the court may set aside such wrongful compromise: In re Etna, 1 Ware (462), 474, Fed. Cas. No. 4542. Where a next friend of minors died, and they inherited from him a greater amount of property than the judgment which he compounded, chancery will not prevent their looking to the judgment debtor, especially where the composition is of a doubtful nature, and make the debtor resort to the estate of the next friend: Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10, 30 Am. Dec. 425.

In George v. Knox, 23 La. Ann, 354, an agreement was made by the attorney of the vendor of real estate with the curator ad hoc, who represented the vendee in a suit to rescind the sale, by which the vendee was to take the rents of the property during the time that he had it in possession as an equivalent for a part of the price that he had already paid. This agreement was held not binding on the vendee, the curator ad hoc not being authorized to make it.

While holding that a next friend cannot enter into a compromise made out of court and not approved by the court, or where judgment is not entered in pursuance thereof, the case of Tripp v. Gifford, 155 Mass. 108, 31 Am. St. Rep. 530, 29 N. E. 208, is to the effect that a fair adjustment in court is allowable. It is there said: "We see no reason why the next friend should not have authority to institute or to entertain negotiations for a settlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infant defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be said that every suit brought in the name of the infant is upon a good cause of action, or that, if well brought, the just amount of the recovery cannot be arrived at without a trial, or that when the next friend and the defendant, and their respective counsel, who are sworn officers of the court, act in good faith, it is necessary that an investigation of the fairness of a proposed adjustment should be made or ordered by the court before disposing of the cause. The next friend is intrusted with the rights of the infant so far as they are involved in the cause, and acts under responsibility both to the court and the plaintiff. It may well be considered to be within his official duty to negotiate, if possible, a fair adjustment, without subjecting the plaintiff to the expense and risk of a trial."

VII. Power to Arbitrate Claim.

A guardian ad litem or next friend cannot bind his wards by submitting the suit in their name to arbitration; but it is his duty alone to conduct the suit in court: Fort v. Battle, 21 Miss. (13 Smedes & M.) 133; Hannum v. Wallace, 28 Tenn. (9 Humph.) 129; Tucker v. Dabbs, 59 Tenn. (12 Heisk.) 18.

VIII. Power to Receive Money Recovered and to Satisfy Judgment.

The weight of authority is to the effect that a next friend has no authority to receive the money recovered in the action prosecuted by him, his power of representation ending with the suit; and for the same reason he cannot enter satisfaction on the record: Isaacs v. Boyd, 5 Port. (Ala.) 388; Smith v. Redus, 9 Ala. 99, 44 Am. Dec. 429; Glass v. Glass, 76 Ala. 368; Westbrook v. Comstock, Walk. Ch. (Mich.) 314; Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Miles v. Kaigler, 18 Tenn. (10 Yerg.) 10, 30 Am. Dec. 425; American Lead Pencil Co. v. Davis (Tenn.), 67 S. W. 864. Therefore a judgment for the plaintiff, a minor, for personal injuries, should not direct payment of the money to his next friend, but should require it to be deposited with the clerk of the court, and by him paid to the minor's guardian: City of Austin v. Colgate (Tex. Civ. App.), 27 S. W. 896. Where by statute it is provided that any judgment recovered by a minor not exceeding five hundred dollars, may, if he have no guard. ian, be taken charge of by his next friend, such next friend has no authority to receive a recovery of a sum exceeding that amount: Gulf etc. Ry. Co. v. Younger, 19 Tex. Civ. App. 242, 45 S. W. 1030.

If a next friend admits satisfaction of judgment on the record, it will be set aside in equity at the suit of the plaintiff therein after he has attained his majority: Cody v. Roane Iron Co., 105 Tenn. 515, 58 S. W. 850. There the court, after stating the general rule that a payment made to the next friend will not operate as a satisfaction, continued: "Hence the payment made to the next friend of this complainant was and is, in legal contemplation, the same as no payment at all.

"Such being true, the case now before the court is one in which there is a recited satisfaction in the face of a judgment where, in fact and in law, no satisfaction has been had, and that recitation, if allowed to stand, must inevitably preclude the complainant from the collection of his recovery, and thereby work a great wrong and fraud upon his confessed and adjudged rights.

"It is the peculiar province and pride of a court of equity to vouchsafe all needed and appropriate relief in such a case.

"It cannot be said against the complainant that he has been guilty of any wrong or fault at any point. The loss, if any, to be sustained through the payment already made, is due alone to the joint and illegal act of this defendant and the next friend, each of whom was charged with knowledge that such payment was wholly unauthorized in law; and it is better, if such be the ultimate result, that a participant in that act pay twice, than that the only person entitled to the money, and who is entirely innocent, should not be paid at all."

Payment to a prochein ami may, however, be legal satisfaction of recovery if ratified by the minor after attaining his majority or his

legal representative after his death: Allen v. Roundtree, 1 Spear (S. C.), 80.

The minority view holds that the next friend may receive the recovery, give a sufficient acquittance and satisfy the judgment: Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619; O'Donnell v. Broad, 2 Pa. Dist. Rep. 84; and it may be paid to his regularly appointed attorney, but the right of the next friend or his attorney to receive the money is subordinate to that of the regular guardian: Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619. See, also, Stroyd v. Traction Co., 15 Pa. Super. Co. 245.

In Cody v. Roane Iron Co. (Tenn.), 53 S. W. 1002, affirmed, 105 Tenn. 515, 58 S. W. 850, it is held that though a next friend has no right to take the money paid him out of court, he may acknowledge satisfaction on the record; that the proper course is for the court to direct the money to be paid into court, for the purpose of being subsequently paid out to the regular guardian, or of being lent out under order of court for the benefit of the infant.

IX. Power to Contract for Legal Services.

Where it is for the infant's benefit that counsel be employed, the guardian ad litem or next friend may do so: Glass v. Glass, 76 Ala. 368; Baltimore etc. R. Co. v. Fitzpatrick, 36 Md. 619; Colgate v. Colgate, 23 N. J. Eq. 372. But see In re Johnston, 6 Dem. Sur. (N. J.) 355, holding that a guardian ad litem in the surrogate's court will employ counsel at his own expense.

There is a conflict as to whether such guardian may enter into a contract for the services of an attorney. In Yourie v. Nelson, 1 Tenn. Ch. 614, it is held to be his duty to make a contract with counsel for professional services, or agree with him as to his compensation, and such expenses fall under the head of just allowances to which fiduciaries are entitled. Other cases take an opposite view, under which he cannot bind his ward by a contract for attorney's fees: Cole v. Superior Court, 63 Cal. 86, 49 Am. Rep. 78; Houck v. Birdwell, 28 Mo. App. 644. In the former of those cases it is said: "The guardian ad litem is an officer of the court appointing him; his duties are to represent the infant, insane or incompetent person in the action or proceeding': Code Civ. Proc., sec. 372. He may, doubtless, employ an attorney to assist him in the prosecution or defense of the action, but he may not make a contract for the payment of compensation which shall absolutely bind the ward or his estate. His powers are certainly no greater than those of a general guardian. Like the latter he may be allowed a credit for moneys advanced or paid out of the fund collected, as reasonable compensation for the expenses, and for the services of an attorney. But he has no power by specific agreement with the attorney to fix

such compensation absolutely. An attorney accepting employment, and rendering services under such circumstances, must rely upon the subsequent action of the court in ascertaining and adjusting proper compensation. He cannot determine the amount, nor can he retain what he or the guardian ad litem may deem a proper sum, leaving it to the general guardian to sue for the excess. There is no place here for the doctrine of an implied promise upon a quantum meruit. The presumption of a promise is rebutted by the fact that the guardian had no power to contract in such manner as to bind the assets of the ward except conditionally."

X. Power to Purchase at Sale of Infant's Property.

The question has arisen as to how far a next friend or guardian ad litem is a trustee in such a sense as to be prohibited from purchasing the infant's property at a sale. The Kentucky courts hold that he is not such a trustee, and the rule does not apply: Mitchell v. Berry, 58 Ky. (1 Met.) 602. In Spencer v. Milliken, 4 Ky. Law Rep. 856, it was held that a sale was not void because a guardian ad litem was the purchaser, the infaut having been represented by a trustee who defended for him.

The decision of the other courts, however, consider a guardian ad litem as a trustee within the meaning of the rule, and will not uphold a purchase by him at a sale of the infant's property: Collins v. Smith, 38 Tenn. (1 Head) 251; Starkey v. Hammer, 60 Tenn. (1 Baxt.) 438; Gallatian v. Cunningham, 8 Cow. 361; nor can he acquire the property of infant heirs pending a litigation in respect to it: Massie v. Matthews, 12 Ohio, 351.

The rule prohibiting a purchase by a guardian ad litem, not made for the benefit nor in behalf of his infant wards, is absolute, and it makes no difference that the purchase was made, not for the guardian's own benefit, but for that of some other person: Le Fevre v. Laraway, 22 Barb. 167. The presumption in the case of a purchase by the guardian ad litem is that it is for his benefit, and the burden is on him to show that it was made for the infant's good: O'Donoghue v. Boise, 92 Hun, 3, 37 N. Y. Supp. 961. That the remedy of infants. against persons purchasing from their guardian ad litem, who bought the property at a sale, is, in the absence of any statutory provision, in equity, and hence voidable and not void, see Dugan v. Denyse, 13 App. Div. 214, 43 N. Y. Supp. 308.

XI. Power to Waive Service of Process.

As a general rule, a guardian ad litem cannot waive service of process: Robbins v. Robbins, 2 Ind. 74; Pugh v. Pugh, 9 Ind. 132; Cormier v. De Valcourt, 33 La. Ann. 1168. So the answer of guardian ad litem does not make his wards parties and dispense with the necessity of services of process: Frazier v. Pankey, 31 Tenn. (1 Swan.) 75. In Hannum v. Wallace, 28 Tenn. (9 Humph.) 129, however, it