CHAPTER II.

PERSONS WHO MAY BE PLAINTIFFS OR DEFENDANTS IN A SUIT IN EQUITY.

§ 28. General Rule as to Persons capable of being Plaintiffs. All persons may file a bill in equity in their own right, except alien enemies, infants, idiots, lunatics, married women, and possibly those who by the laws of a State have been declared civilly dead.

§ 29. States as Plaintiffs. A State may sue as plaintiff in any court of the United States.1 A State cannot sue in the Supreme Court of the United States to collect a judgment for a penalty recovered in the court of such State against a corporation chartered by another State.2

Subjects of a country at war

§ 30. Alien Enemies as Plaintiffs. with the United States cannot sue in the State or Federal courts before the conclusion of peace, unless they are residents of this country or within the jurisdiction of one of our allies. If a complainant become an alien enemy after a suit has been begun, the defence may be interposed by plea or answer.2 The effect of such a defence is then, however, merely to suspend the cause of action and suit, not to dismiss the bill.3

A married woman origi

§ 31. Married Women as Plaintiffs. nally could only sue when joined with her husband, unless he had deserted her, and was without the realm or civilly dead, when she could'sue alone;1 or unless the suit concerned her separate property, when she was obliged to sue by her next friend.2 The next friend, however, was chosen by herself; and the husband was then usually made a party defendant, that he might

§ 29. 1 Ames v. Kansas, 111 U. S. 449; U. S. v. Louisiana, 123 U. S. 32; § 14.

2 Wisconsin v. Pelican Insurance Co., 127 U. S. 265.

§ 30. 1 Wilcox v. Henry, 1 Dall. 69; Crawford v. The William Penn, 1 Pet. C. C. 106; Mumford v. Mumford, 1 Gall. 366; Clarke v. Morey, 10 Johns. (N. Y.) 69; 2 Kent's Com. 63.

2 Bell v. Chapman, 10 Johns. 183. 3 Hutchinson v. Brock, 11 Mass. 119; Parkinson v. Wentworth, 11 Mass. 26;

Levine v. Taylor, 12 Mass. 8; Hamersley v. Lambert, 2 Johns. Ch. (N. Y.) 508; Ex parte Boussmaker, 13 Ves. 71; Wilcox v. Henry, 1 Dall. 69; Story's Eq. Pl. § 54. But see Mumford v. Mumford, 1 Gall. 366.

§ 31. 1 Story's Eq. Pl. § 61; Countess of Portland v. Prodgers, 2 Vern. 104. 2 Wake v. Parker, Keen, 70; Story's Eq. Pl. § 63.

Story's Eq. Pl. § 61; Gamber v. Atlee, 2 De G. & Sm. 745.

have an opportunity to assert any claim he might have to the subject-matter of the suit. In the courts of the United States, however, the rule was early laid down as follows: "Where the wife complains of the husband and asks relief against him she must use the name of some other person in prosecuting the suit ; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court."5 In the Circuit Courts held in the State of New York, where a married woman has substantially all the powers of a spinster, she may sue in equity, as if she were single, at least if she be a citizen of that State. When a suit has been begun by a married woman alone who should have sued by her next friend, leave to amend by adding to the title the name of a next friend will always be granted.?

§ 32. Suits on behalf of Infants. The equity rules provide that "all infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons." It has never been decided whether this changes the former practice, which was as follows: An infant could only sue by his next friend,2 who might be any person that would undertake the suit in his behalf, subject, however, to the costs and the censure of the court, if it were improperly brought.3 The next friend might, at any time, be removed by the court either summarily or after a reference, if it seemed for the best interest of the infant to appoint another. It was doubtful whether insolvency and consequent inability to respond for costs was, in itself, a ground for the next friend's removal. That might, however, be a reason for an order directing him to give security for costs. The court might, at any time, order a reference to a

Sigel v. Phelps, 7 Sim. 239; Wake v. Parker, 2 Keen, 70; Story's Eq. Pl. § 63.

5 Mr. Justice McLean in Bein v. Heath, 6 How. 228, 240. See Douglas v. Butler, 6 Fed. R. 228.

6 Lorillard v. Standard Oil Co., 2 Fed. R. 902. But see Taylor v. Holmes, 14 Fed. R. 499, 514; United States v. Pratt Coal & Coke Co., 18 Fed. R. 708; O'Hara v. MacConnell, 93 U. S. 150.

7 Douglas v. Butler, 6 Fed. R. 228; Taylor v. Holmes, 14 Fed. R. 499.

§ 32. Rule 87.

2 Rule 87; Story's Eq. Pl. § 57; Dudgeon v. Watson, 23 Fed. R. 161; Bradwell v. Weeks, 1 J. Ch. (N. Y.) 325.

3 Campbell v. Campbell, 2 M. & C. 25, at page 30; Sale v. Sale, 1 Beav. 586; Starten v. Bartholomew, 6 Beav. 143.

4 Nalder v. Hawkins, 2 M. & K. 243; Russell v. Sharpe, 1 Jac. & W. 482. Anon., 1 Ves. Jr. 409.

6 Fulton v. Rosevelt, 1 Paige (N. Y.), 178, at page 180.

master, to determine the propriety of a suit; and, if it appeared to have been brought against the infant's interest, would stay proceedings in it or dismiss the bill, with costs to be paid by the next friend. This could be done even without a reference.8 No such reference would, it seems, be ordered at the request of the next friend himself, unless there were another cause pending by reason of which the infant's property was subject to the control of the court, when such a reference might be ordered at the instigation of a next friend, and he be paid his costs out of the estate even if the bill were finally dismissed.10 An application to dismiss a bill as improperly filed on behalf of an infant might be made by a person "as next friend for the purpose of this application," or by a defendant to the bill.12 It seems that any motion clearly for the interest of an infant complainant could be made by a next friend for the purpose of the application, when the next friend who filed the bill refused to move.13 If two suits were instituted on behalf of the same infant for the same purpose by two next friends, the court would direct a master to inquire which is most for the infant's benefit.14 A bill might be filed by a next friend on behalf of a child still in its mother's womb.15

If an infant were made co-plaintiff with others, and it appeared that it would be more for his advantage that he should be made a defendant, an order to strike out his name as plaintiff, and to make him a defendant, might be obtained upon motion. 16 When a bill was filed in behalf of an infant, his coming of age did not abate the suit; but he might then elect whether he would proceed with it or not.17 If he chose to go on with the suit, all further proceedings could be carried on without any amendment or the filing of a supplemental bill.18 He was then liable for all costs of the suit, as if he had filed the bill after he came of age.19 Otherwise, he was not personally chargeable with costs; unless

7 Da Costa v. Da Costa. 3 P. Wms. 140; Nalder v. Hawkins, 2 M. & K. 243; Sale v. Sale, 1 Beav. 586.

8 Sale v. Sale, 1 Beav. 586.

9 Jones v. Powell, 2 Mer. 141.

10 Taner v. Ivie, 2 Ves. Sen. 466.

11 Guy v. Guy, 2 Beav. 460.

12 Fox v. Suwerkrop, 1 Beav. 583.

18 Furtado v. Furtado, 6 Jur. 227; Cox v. Wright, 9 Jur. (N. s.) 981; Guy v. Guy, 2 Beav. 460.

20

he made a motion to dismiss the bill, which it seems could only be done upon the payment of costs by himself,21 if he could not establish that the bill was improperly filed by his next friend.22 If the next friend died during the infant's minority, and the latter took no step in the cause after he had come of age, the defendant might have the bill dismissed, but without costs, since there would then be no one living who was liable to pay them.23

If

§ 33. Suits on behalf of Idiots, Lunatics, and Persons of Weak Mind. Idiots and lunatics sue by their committees or guardians, if they have any, otherwise by next friend.1 It is the usual practice to join them as plaintiffs with their representatives, though it might be held unnecessary to do so when one has a committee, authorized by statute to sue in his name.2 If the interest of the committee be adverse to that of his ward, the latter should sue by a next friend. Although the practice is unsettled, it would be advisable to have the next friend appointed by the court. a plaintiff become a lunatic after the institution of a suit, a supplemental bill may be filed in the joint names of the lunatic and of the committee of his estate, which will answer the same purpose as a bill of revivor in procuring the benefit of former proceedings. If a committee die and a new committee is appointed after a suit has been instituted by the former for the benefit of his idiot or lunatic, the proper way of continuing the suit is by a supplemental bill filed by the idiot or lunatic and the new committee. In England, a committee, usually before the institution of a suit, prayed the sanction of the Lord Chancellor by a petition, which was often referred to a master. If a person of full age is neither an idiot nor a lunatic, and is yet incapable of managing his affairs, the court may appoint a next friend to sue for him. If a bill has been filed in the name of a plaintiff, who, at the time of filing it, is in a state of mental incapacity, it may, on motion, be

21 Waring v. Crane, 2 Paige (N. Y.), 79. 22 Turner v. Turner, 2 Stra. 708.

§ 33. 1 Rule 87; Hoffman's Ch. Pr. 61. 2 See Ortley v. Messere, 7 Johns. Ch. (N. Y.) 139; Harrison v. Rowan, 4 Wash. C. C. 202; Palmer, Attorney-General v. Parkhurst, 1 Chan. Cas. 112; Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24; Hoffman's Ch. Pr. 61; Story's Eq. Pl. § 65, and notes.

8 Compare Attorney-General v. Tiler, 1 Dick. 378; Hoffman's Ch. Pr. 61.

4 Compare Attorney-General v. Tiler,

1 Dickens, 378; Hoffman's Ch. Pr. 61; Story's Eq. Pl. § 64, and notes.

5 See Brown v. Clark, 3 Woodeson's Lect. 378; Daniell's Ch. Pr. 108.

6 In re Reynolds, Shelf. on Lun. 417; Daniell's Ch. Pr. 108.

7 In re Webb, Shelf. on Lun. 417; Daniell's Ch. Pr. 108.

8 Wartnaby v. Wartnaby, Jac. 377; Owing's Case, 1 Bland (Md.), 370, at page 373; Story's Eq. Pl. § 66.

taken off the file. If, however, after a suit has been properly instituted, a plaintiff becomes imbecile, the bill cannot for that reason be taken off the file.10

§ 34. Capacity of Foreign Executors, Administrators, and Receivers to sue. Foreign executors and administrators, under which term are included those appointed in other States than that where the court is held, cannot sue until they have taken out ancillary letters of administration. A foreign executor may sue without ancillary letters when the title is vested in him as trustee by devise.2 It is doubtful whether or not foreign receivers can sue.3 The better rule would seem to be, that they can always sue, no matter where, unless by so doing they would appropriate assets upon which domestic creditors would otherwise have a prior lien, or otherwise impugn the public policy of the State in which the action is brought.1 §35. Who may be Defendants to a Bill in Equity. All persons may be made defendants to a bill in equity except the United States;1 foreign States and sovereigns for acts done in a political capacity; "one of the United States by citizens of another State, or by citizens or subjects of any foreign State; " receivers appointed by State courts without the leave of such courts; 4 and foreign executors and administrators,5 unless they have assets within the jurisdiction of the court where the bill is filed." Whether a suit can be brought against the President of the United States is undecided.7

§ 36. The United States as a Defendant. may waive its exemption from

9 Wartnaby v. Wartnaby, Jac. 377; Story's Eq. Pl. § 66.

19 Wartnaby v. Wartnaby, Jac. 377.

§ 34. 1 Fenwick v. Sears, 1 Cranch, 259; Dixon v. Ramsay, 3 Cranch, 319; Doe v. McFarland, 9 Cranch, 151; Kerr v. Moon, 9 Wheat. 565; Mason v. Hartford, Providence, & Fishkill R. R. Co., 19 Fed. R. 53; Duchesse d'Auby v. Porter, 41 Fed. R. 68; Johnson v. Powers, 139 U. S. 156, 158. 2 De Forest v. Thompson, 40 Fed. R. 375.

3 Booth v. Clark, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Olney v. Tanner, 10 Fed. R. 101; Hazard v. Durant, 19 Fed. R. 471, 476.

Ex parte Norwood, 3 Biss. 504; Hunt v. Jackson, 5 Blatchf. 349; Cuykendall v. Miles, 10 Fed. R. 342; Hurd v. Eliza

The United States

suit by statute, but not by the

beth, 41 N. J. Law (12 Vroom) 1; Toronto General Trust Co. v. C. B. & Q. R. R. Co., 123 N. Y. 37, 47.

§ 35. 1 Carr v. U. S., 98 U. S. 433.

2 Duke of Brunswick v. King of Hanover, 6 Beav. 1; Hullett v. King of Spain, 2 Bligh N. R. 31.

8 11th Amendment to Constitution.

4 Barton v. Barbour, 104 U. S. 126; Thompson v. Scott, 4 Dill. 508; Express Co. v. Railroad Co., 99 U. S. 191.

5 Vaughn v. Northrup, 15 Pet. 1; Story's Eq. Pl. § 179.

6 Sandilands v. Innes, 3 Sim. 263; McNamara v. Dwyer, 7 Paige (N. Y.), 239; Campbell v. Tousey, 7 Cow. (N. Y.) 64. 7 See Miss. v. Johnson, 4 Wall. 475. § 36. United States v. Clarke, 8 Pet. 436; The Siren, 7 Wall. 152.