Court under the preceding section, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters, in vacation, and otherwise regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings." These statutes are constitutional.' 2 Under these provisions the Supreme Court has from time to time promulgated ninety-four rules of equity practice; and most of the inferior courts have also adopted rules of their own. The ninetieth rule of the Supreme Court, which was promulgated in March, 1842, provides that, "in all cases where the rules prescribed by this court or by the Circuit Court do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local conveniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice." Of this rule Judge Sawyer said: "The jurisdiction of this court is derived from the Constitution and laws of the United States; and these rules are simply rules of practice, for regulating the mode of proceeding in the courts. They do not, and could not, properly, either limit or enlarge the jurisdiction of the court. The rule quoted simply regulates the practice in exercising the jurisdiction of the court in those respects wherein the rules adopted do not apply; but the practice of the High Court of Chancery is to be applied, not as controlling, but simply as furnishing just analogies to regulate the practice." By reference to these sources and the decisions of the courts resulting from them, the practice at equity in the courts of the United States must be determined." 2 U. S. R. S., § 918. 3 Wayman v. Southard, 10 Wheat. 1; Beers v. Houghton, 9 Peters, 338, 359; White v. Toledo, St. L. & K. C. R. Co., 79 Fed. R. 133. Daniell's Chancery Practice and the second American edition of Smith's Practice, both of which were published in 1837, are the authoritative works which best explain the Eng 4 Lewis v. Shainwald, 7 Saw. 403, lish chancery practice in 1841. Note 405. 5 The first American edition of by Mr. Justice Bradley in Thomson v. Wooster, 114 U. S. 104, 112. 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 which has jurisdiction of the case. 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 § 30. Alien enemies as plaintiffs.- Subjects of a country at war 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.1 If a complainant become an alien enemy after a suit has been begun, the defense may be interposed by plea or answer. The effect of such a defense is then, however, merely to suspend the cause of action and suit, not to dismiss the bill." § 31. Married women as plaintiffs.- A married woman originally 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;' or unless the suit concerned her § 29. 1 Ames v. Kansas, 111 U. S. 449; U. S. v. Louisiana, 123 U. S. 32; supra, § 14. 3 Hutchinson v. Brock, 11 Mass. 119; Parkinson v. Wentworth, 11 Mass. 26; Levine v. Taylor, 12 Mass. 8; Ham 2 Wisconsin v. Pelican Ins. Co., 127 ersley v. Lambert, 2 Johns. Ch. (N. Y.) 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. 508; Ex parte Boussmaker, 13 Ves. 71; $31. Story's Eq. Pl., § 61; Countess of Portland v. Prodgers, 2 Vern. 2 Bell v. Chapman, 10 Johns. (N. Y.) 101 3 separate property, when she was obliged to sue by her next friend. The next friend, however, was chosen by herself; and the husband was then usually made a party defendant, that he might 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." In the Circuit Courts held in the districts 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." In the Circuit Courts in the districts of California the rule is otherwise. 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.8 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, 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. The next friend might, at any time, 2 Wake v. Parker, 2 Keen. 70; 14 Fed. R. 499, 514; U. S. v. Pratt Coal Story's Eq. Pl., § 63. & Coke Co., 18 Fed. R. 708; O'Hara v. MacConnell, 93 U. S. 150. Story's Eq. Pl., § 61; Gamber v. Atlee, 2 De G. & Sm. 745. 4 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, 7 Wills v. Pauly, 51 Fed. R. 257. 8 Douglas v. Butler, 6 Fed. R. 228; Taylor v. Holmes, 14 Fed. R. 499. $32. 1 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. 8 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 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. 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." 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.1 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 ap 25, 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. 5 Anon., 1 Ves. Jr. 409. 6 Fulton v. Rosevelt, 1 Paige (N. Y.), 178, 180. 7 Da Costa v. Da Costa, 3 P. Wins. 140; Nalder v. Hawkins, 2 M. & K. 243; Sale v. Sale, 1 Beav. 586. See King v. McLean Asylum of Massa chusetts General Hospital, 64 Fed. R. 8 Sale v. Sale, 1 Beav. 586. 12 Fox v. Suwerkrop, 1 Beav. 583. 14 Calvert on Parties (2d ed.), 418. 15 Luterel's Case, cited Prec. Ch. 50; Musgrave v. Parry, 2 Vern. 710. peared 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." 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; 20 unless 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 The suit is brought in the name of the infant, not in that of the next friend,24 and the infant's citizenship is the test of the jurisdiction.25 § 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 friends. 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." 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 16 Tappen v. Norman, 11 Ves. 563. 17 Guy v. Guy, 2 Beav. 460. 18 Hoffman's Ch. Pr. 60; Daniell's Ch. Pr. (2d Am. ed.) 102. 19 Daniell's Ch. Pr. (2d Am. ed.) 102. 20 Waring v. Crane, 2 Paige (N. Y.), 79. 79. 25 Ibid. § 33. 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. AttorneyGeneral, v. Parkhurst, 1 Chan. Cas. 21 Waring v. Crane, 2 Paige (N. Y.), 112; Gorham v. Gorham, 3 Barb. Ch. 22 Turner v. Turner, 2 Stra. 708. 23 Morgan v. Potter, 157 U. S. 195. 24 Woolridge v. McKenna, 8 Fed. R. 650; supra, § 19. (N. Y.) 24; Hoffman's Ch. Pr. 61; Story's Eq. Pl., § 65, and notes. 3 Compare Attorney-General v. Tiler, 1 Dick. 378; Hoffman's Ch. Pr. 61. |