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was held that, if not prejudicial to their interests, the guardian might waive service of a copy of the declaration and notice, thus saving delay and a useless accumulation of costs.
In Banta v. Calhoun, 9 Ky. (2 A. K. Marsh.), 166, it was held that if the guardian appeared, it was not necessary for process to be served on the infant. And where a minor has been served with cita. tion, and a guardian ad litem appointed for him, such guardian may waive notice of citation, and consent to a hearing: Pollock v. Buie, 43 Miss. 140. Where a warning order published against a minor defendant was not entirely definite as to the place at which he was warned to appear, and a guardian ad litem was appointed by the court, who filed an answer for his ward, it was held that the notice and appearance were sufficient to bind the latter: Williams v. Ewing, 31 Ark. 229.
XII. Right to Appeal. A guardian ad litem may and should appeal whenever, in his opinion, it is necessary to protect his ward's interest: Sprague v. Beamer, 45 Ill. App. 17; Loftis v. Loftis, 94 Tenn. 232, 28 S. W. 1091; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015, and leave of the court is not necessary: Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883.
Under a staute restricting the right of appeal to parties to a suit, a guardian ad litem may be a party thereto, and as such has the right of appeal on behalf of the infants, to protect or advance their interests: Thomas v. Safe Deposit etc. Co., 73 Md. 451, 21 Atl. 367, 23 Atl. 3. In Harlan v. Watson, 39 Ind. 393, it is held that such a guardian cannot appeal in his own name.
XIII. Power to Make Oath for Infant. The next friend of an infant may verify a pleading in the action in which he is acting: Turner v. Cook, 36 Ind. 129; and he may make an affidavit in replevin: Wilson v. Me-ne-chas, 40 Kan, 648, 20 Pac. 468; and also for an attachment, and stating therein that he has commenced the action as next friend sufficiently avers the agency: McDowell v. Nims, 15 Week. Law Bull. (Ohio) 359.
XIV. Duty to Use Good Faith. A guardian ad litem must act toward the infant whom he represents in good faith: Spelman v. Terry, 74 N. Y. 448. In that case a special guardian attempted to make use of an invalid claim and to put a purchaser of such claim from him in possession of land of an infant. The court condemned any such action in the following words: “We do not hold that one appointed special guardian to sell infants' real estate, who then holds a valid encumbrance upon or a claim against the same, thereby loses his rights in his encumbrance or claim, or is to forego the sale of it to his own advantage. What we do hold is, that he may not after he is appointed, so use an invalid claim held by him, as to put a purchaser of it from him into
possession of the lands; whereby an action of ejectment is made necessary to regain possession by the one lawfully entitled. It is an act in hostility to the interests of his ward, and inconsistent with the duty he owes. For the damage from such act he should make just compensation. Such rule is a branch of the principle that one holding a relation of trust to another cannot deal with the trust es. tate or fund to his own profit and the harm of the cestui que trust.' If the next friend plays his infant ward false, the judgment is not thereby rendered void, but the defrauded plaintiff may resort to a court of equity to set aside and undo the fraudulent work and to wipe out the record, falsely obtained, by which he is confronted: Cudleigh v. Chicago etc. Ry. Co., 51 Il. App. 491.
In Ivey v. McKinnon, 84 N. C. 651, it is held that if in partition proceedings the interest of a prochein ami is adverse to that of the infant, a decree therein will not on that account be disturbed unless fraud or collusion is established. Where an infant sues a guardian personally for positive and specific fraud, no prior accounting from the guardian is necessary, as it is where an action upon a guardian's bond against his sureties is sought to be brought: Koch v. Le Frois, 61 Hun, 205, 15 N. Y. Supp. 928. It is not a badge of fraud that a decree, rendered on a certain day, was entered as of a week previous, without objection from the guardian ad litem; nor that he failed to apply for a rehearing: Kingsbury chner, 134 U. S. 650, 10 Sup. Ct. Rep. 638. And taking a second mortgage by a special guardian is not wrongful, nor necessarily a breach of trust, where appointed for the sale of infants' lands: Monroe v. Osborne, 43 N. J. Eq. 248, 10 Atl. 267.
XV. Miscellaneous Rights and Duties. The powers of a guardian ad litem are strictly limited to the matter before the court. Hence he cannot bind his ward by a release, to qualify a witness to testify: Walker v. Ferrin, 4 Vt. 523; nor can he make a demise in ejectment: Massies v. Long, 2 Ohio, 287, 15 An, Dec. 547. He cannot consent to a sale of his ward's real estate to satisfy notes for purchase money, before their maturity: Melton v. Brown, 20 Ky. Law Rep. 882, 47 S. W. 764. If, however, a sale of the minor's property is for his benefit, it will not, without complaint on his part, be set aside on the application of the purchaser: Curd v. Bonner, 44 Tenn. (4 Cold.) 632. Where a special guardian of infants entered into a contract of sale conjointly with the adult owners, and the deed tendered the purchaser was executed by the guardian jointly with the other owners, it was held no objection, the fact that other parties owning other interests joined in the same contract and deed not depriving either instrument of its binding effect upon all concerned: O'Reilly v. King, 28 How. Pr. 408.
Where an order is made by a court of chancery appointing a guard. ian for certain infants, and authorizing him to cancel a bond and mortgage belonging to them, upon receiving another one on unencumbered real estate, this latter provision is a condition precedent to his discharging the bond and mortgage, and he has no right to do so unless he receives the security mentioned in the order: Swarthout v. Swarthout, 7 Barb. 354.
A replevin bond in a suit by an infant is valid, though executed by his next friend as one of the two sureties required by statute, he not being a party, but in the nature of an attorney: Anonymous, 2 Hill, 417. He may elect to bring the infant's estate into hotchpot: Andrews v. Hall, 15 Ala. 85.
Where a mortgage is given to the special guardian of an infant for the latter's benefit, such special guardian is the proper person to file a bill for the redemption and assignment of a senior mortgage upon the same premises: Pardee v. Van Anken, 3 Barb. 534. The investment of infant's money by a guardian ad litem in the capital stock of a bank is legal, though it afterward fail: Haddock v. Planters' Bank, 66 Ga. 496.
A next friend falls within the principle that statements made in the course of judicial proceedings with regard to third persons are conditionally privileged and not actionable if made without malice, with probable cause, and under such circumstances as to reasonably create the belief that they were true: Ruohs v. Backer, 53 Tenn. (6 Heisk.) 395, 19 Am. Rep. 598.
TOMPKINS v. PACIFIC MUTUAL LIFE INS. CO.
(53 W. Va. 479, 44 S. E. 439.) LIMITATIONS, Statute of—Bar of, When Prevented by Suit to Dismiss for Want of Prosecution.—Under a statute providng that if any action commenced within due time should be arrested or reversed on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the cause having been dismissed for want of security for costs, or by reason of any cause which could not be applied in bar of the action, then, notwithstanding the expiration of the time within which a new suit or action may otherwise be brought, the same may be brought within one year after the dismissal of the other cause, or after the arrest or reversal of the judgment, the fact that the first cause was commenced in a court of the United States, where it was dismissed for want of jurisdiction, does not deprive the plaintiff of the benefit of the statute or of the right to bring a new action within a year after such dismissal. (p. 1011.)
INSURANCE Against Accident-Right of Examination. Under a policy providing that any medical adviser of the company shall be allowed to examine the person or body of the injured in respect to an injury or cause of death, in such manner and at such
times as he may require, the insurer has the right of examination and nothing more, and the authority of its agent is confined within the same limits. It confers no right to treat the injury, and the injured is not bound to submit to any course of treatment at the hands of any physician that the company may indicate. (pp. 1017, 1018.)
INSURANCE Against Accident-Relation Between the Insurer and the Medical Examiner.-If a policy of insurance stipulates that a medical adviser shall be allowed to examine the person or body of the injured in respect to the injury, the relation between the insurer and its medical adviser in making such examination is that of master and servant, and the principle of respondeat superior applies between them. (p. 1018.)
INSURANCE Against Accident-Care to be Exercised in the Examination of an Assured.-Where a policy of insurance reserves to an insurer the right to the examination of the ingured in respect to an injury, he is entitled to insist upon the use of care and skill in the exercise of the right of examination. (p. 1019.)
INSURANCE Against Accident-Liability of Insurer for Negligence of Medical Examiner.-If the injury to the insured requires a plaster cast or similar appliance to hold injured ligaments in place until they are wholly well or regain strength, and the medical adviser of the insurer, in making an examination, removes and fails to replace such appliance, and injury results therefrom, he is guilty of negligence, for which his principal must answer in damages. (p. 1025.)
JURY TRIAL -Instruction Relating to the Interest of a Witness, When May be Refused.—The court may refuse an instruction to the effect that the jury, in passing upon the testimony of a party, may take into consideration his situation and his interest in the result of the verdict and all the circumstances surrounding him, and give to it only such weight as they may deem it fairly entitled to, if testimony against him has been given by a witness who is also deeply interested in a moral sense, and no such direction as to his testimony is included in the proposed instruction. (p. 1025.)
Simms & Enslow, for the plaintiff in error.
Harvey, Wiatt & Switzer, for the defendant in error.
480 POFFENBARGER, J. On the thirtieth day of September, 1898, George H. Tompkins, a resident of Clifton Forge, Virginia, instituted an action in the circuit court of the United States in the district of West Virginia, against the Pacific Mutual Life Insurance Company, a California corporation, doing business in West Virginia, for the recovery of damages for an alleged wrong, on an alleged cause of action accruing to him in October, 1897, in which action he recovered a judgment, which was afterward reversed by the United States circuit court of appeals, and the action directed by said court to be dismissed for want of jurisdiction, which was accordingly done by the said circuit court. Within one year after the dismissal aforesaid, to wit, on the third day of November, 1900, said Tompkins instituted this suit in the circuit court of Cabell county for the same cause of action, alleging in his declaration the prosecution and dismissal of said former action, and that this action was brought within one year after said dismissal. To the declaration and each count thereof, the defendant deinurred, after having had oyer of the writ and return, which de murrer was overruled, and thereupon a plea of not guilty was entered. The defendant pleaded also the statute of limitations, and the plaintiff was permitted to file his replication in writing to said plea, setting up the pendency of said former suit for the same cause of action, its dismissal for want of jurisdiction and the commencement of this suit within one year 481 thereafter. Trial was had and a verdict rendered for the plaintiff, assessing his damages at two thousand dollars, and, after overruling a motion to set aside the verdict, judgment was rendered accordingly.
Said replication was filed under section 19 of chapter 104 of the Code, which reads as follows: “If any action, commenced within due time, in the name of or against one or more plaintiffs or defendants, abate as to one of them by the return of no inhabitant, or by his or her death or marriage, or if, in an action commenced within due time, judgment (or other and further proceedings) for the plaintiffs should be arrested or reversed, on a ground which does not preclude a new action for the same cause, or if there be occasion to bring a new suit by reason of the said cause having been dismissed for want of security for costs, or by reason of any other cause, which could not be pleaded in bar of an action, of the loss or destruction of any of the papers or records in a former suit which was in due time; in every such case, notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought, the same may be brought within one year after such abatement, dismissal or other cause, or after such arrest or reversal of judgment, or such loss or destruction but not after."
In support of its contention that the court erred in permitting said replication to be filed, the plaintiff in error relies upon two Virginia decisions and one Tennessee decision, and the defendant in error relies upon a decision of the supreme court of the United States, construing the Tennessee statute and an Ohio decision construing a similar section of the Ohio code. The first Virginia case is Gray v. Berryman, 4 Munf. 181. The Virginia statute construed in that case provided that. if judgment for the plaintiff be reversed by error, or judgment