Elizabeth Simpson et al. vs. Joseph Alexander and Wife.

even though it be to the interest of the heirs that the same should be done. Whether a Court of Chancery under its general powers, may do so or not, we will not now determine, but be this as it may, inasmuch as the statute does not prescribe the mode of proceeding in such a case, it must be conducted as other suits in equity.

Infants because of their supposed want of discretion, are regarded as incapable of protecting their own rights, or of correctly determining what would be beneficial or prejudicial to their interests. An infant defendant, has, in general, a day given him after attaining twenty-one, to show cause if he can, against the decree, and is in some other respects privileged beyond an adult; but, according to the general practice, an infant complainant has no such privilege, and is as much bound as one of full age. Therefore, in all cases in equity in which it is sought to charge the real estate of the infant, he ought to be made a defendant and not a complainant, although he may be interested in the charge when raised: Danl. Ch. Pl. and Pr., Vol. 1, pages 92-3.

Joining the infants as complainants in this case,

constitutes such error as for which the decree of the Chancellor must be reversed: Davidson vs. Bowden, 5 Sneed; Winchester vs. Winchester, 1 Head.

It is also insisted, and, as we think, correctly, that it was error to allow the suit to be prosecuted in the names of the infant complainants, by their guardian, who was himself a complainant, and whose interest in the

Elizabeth Simpson et al. vs. Joseph Alexander and Wife.

subject matter of the litigation is antagonistic to the interests of the infants, even though they might properly be made complainants.

Although in general, an infant is capable of maintaining a suit, yet he is incapable of doing so, without the assistance of some other person, and such person is called the next friend of the infant; and although the practice of allowing an infant to sue by his guardian, describing him as such, has prevailed in this State, still he is, in all respects, the next friend of the infant. He is charged with all the duties and liabilities, subject to the same restraints, and bears the same relation to the infant and the suit, as though he had been described as the next friend of the infant. And because of the supposed incapacity of the infant, it is his duty sedulously to watch and protect the interests of the infant involved in the litigation. He is, in the conduct of the suit, subject to the control of the Court; and if he fail to do his duty, or if any other sufficient ground be brought to the knowledge of the Court, as, if he have an interest in the subject matter of the litigation antagonistic to the interests of the infant, the Court not only has the power, but it is its duty, to remove him and appoint another, who may be more faithful, or not subjected to a similar temptation.

Were the rule otherwise, inasmuch as the Court, in favor of infants, will permit any person to institute suits on their behalf, the ends of justice might be defeated, and iniquities perpetrated by enabling a party whose interest in the litigation may be antagonistic to the

Elizabeth Simpson et. al. vs. Joseph Alexander and Wife.

interest of the infant, by assuming the office of next friend, to bring the infant before the Court, merely, under the forms of law, to rob it of its just rights, and at the same time accomplish his own avaricious, selfish purposes.

Other errors have been assigned, and other questions discussed, in argument; but, in the view we have taken of this case, we do not deem it necessary to notice them further.

The several decrees of the Chancellor will be reversed, and the cause remanded, with directions that the infants be made defendants, and some suitable person appointed guardian ad litem for them.

MCCLAIN, J., said:

While I fully concur in the decree which has been pronounced in this cause, I do not concur in that portion of the opinion which has been delivered, which holds the rule as laid down in Davidson vs. Bowden, 5 Sneed's Rep., in reference to making infants parties defendants instead of complainants, when it is sought to affect their interest in real estate, to have been changed by legislation since the passage of the Act of 1827, ch. 54.

On comparing the several original Acts bearing on the subject, with the Code, I think no change was intended by the Legislature. In the case of Davidson vs. Bowden, the correct rule is laid down, and the present case furnishes an illustration of the value of the rule.

Elizabeth Simpson et al. vs. Joseph Alexander and Wife.

ANDREWS, J., said:

In this cause, I concur in the result arrived at in the opinion of the Court delivered by Judge Hawkins. But I do not concur in the reasoning of that opinion in regard to the necessity of making infants parties defendant, nor in the exposition there given of the meaning of our statutes. In my opinion, suits like the present, are to be conducted like "other suits in equity;" and in all suits in equity; in which it is sought to make sale or partition of the land of an infant, or to fix any charge upon his land, the infant ought to be made a party defendant, unless some imperative necessity or exceptional reason, arising in the particular case, requires him to be a complainant. is a rule founded on the fact that the Court can, usually, much more certainly and effectually protect the interest of the infant, as a defendant, than as a complainant. But I am not prepared to say, that a a case might not arise, in which the infants, or a portion of them, might not properly be made defendants.

It

Isaac Lowe, Sheriff, vs. Mary A. Traynor et al.

ISAAC LOWE, SHERIFF, vs. MARY A. TRAYNOR et al.

1. CHANCERY PRACTICE. Verdict of jury on an issue of fact, only advisory to the Court. The Court may disregard the same. The verdict of a jury as on an issue of fact submitted to them by the Chancellor, is only advisory and designed only to assist the Chancellor in finding the facts. He has the right, and it is his duty to disregard the finding of the jury, if the same was not authorized by the rules governing Courts of Chancery.

2. SAME. Same. The finding of an issue of fact in Chancery, is not as obligatory upon the Court as the verdict of a jury upon an issue at commen law; but it has much weight, and will be sustained unless it clearly appears to be unsuprorted by proof.

FROM BRADLEY.

A

At the August Term, 1867, the Chancellor directed an issue of fact to be made up in this cause. jury was impaneled to try the issue, who failed to agree; and at the February Term, 1868, another jury was impaneled to try the issue between the parties, by order of the Court at the last term. The jury found for the complainant, and a decree was entered in his favor; from which decree respondents appealed to this Court. Chancellor DAN C. TREWHITT, presiding.

J. H. GAUT, for complainant.