4. Infants may sue or be sued and are as much bound by the judgment as
persons sui juris, but infants must sue by a next friend or guardian
and defend actions against them by a regular guardian, or if they have
none in this State, by a guardian ad litem. Ward v. Lowndes, 367.·
5. The provisions of the statute in regard to the appointment of guardians
ad litem should be strictly observed, but mere irregularities in observ-
ing them, not affecting a substantial right, will not vitiate judgments
and decrees obtained in the action or proceeding in which such irreg-
ularities exist. Ibid.
GUARDIAN AD LITEM:
(See GUARDIAN.)
1. Although the real property of a judgment debtor is incapable of divis
ion, and although it would be more advantageous to creditors to have
it sold, the Court has no power to order a sale of the land, and a pay-
ment to the debtor of one thousand dollars in money in lieu of his
homestead. Oakley v. Van Noppen, 247.
2. Where the homestead has once been regularly allotted and set apart, it
cannot be re-allotted at the instance of a judgment debtor whose debt
was in existence when the allotment was made, except for fraud or
other irregularity. Gully v. Cole, 447.
3. Quære, as to the equitable remedy which creditors might have, if the
homestead had increased in value since its allotment. Ibid.
HUSBAND AND WIFE:
(See MARRIED Women.)
I. Quare, whether a juror who has an indictment pending and at issue
against him in the Superior Court, is disqualified from serving on the
jury by the statute which prohibits those having a suit so pending and
at issue from serving. Hodges v. Lassiter, 351.
2. In order to disqualify a juror from serving under this statute, the suit
must be at issue, and so where an indictment was pending against a
juror, to which he had never pleaded; It was held, that he was not
disqualified under this statute, even if it applies to indictments. Ibid.
1. The Superior Courts have succeeded to all the jurisdiction of the late
Courts of Equity in respect to infants, and they have authority to
direct sales of their property, both real and personal, in proper cases.
Tate v. Mott, 19.
2. The guardian or next friend of an infant is not, properly speaking, a
party to the action, although his name appears in the record. Ibid.
3. The next friend of an infant ought always to be appointed by the Court,
and really he is an officer of the Court, and under its supervision and
control. Ibid.
4. The Court has power, for good cause shown, to remove the next friend
of an infant litigant, and appoint another as often as may be neces-
sary. Ibid.
5. It is not essential that the infant should know that an action has been
brought in his favor by a next friend, as his incapacity to judge for
himself is presumed, but the Court may inquire into the propriety of
the action and take such steps as may be necessary. Ibid.
6. Where an infant sues by a next friend he is as much bound by the judg-
ment as an adult, and this rule applies to non-resident as much as to
resident infants. Ibid.
7. A judgment for or against an infant, when he appears by attorney, but
has no guardian or next friend, is not void, but only voidable. Ibid.
8. A guardian appointed in another State has no authority to represent his
wards in suits and proceedings in this State, but when he brings suit
for them as guardian it will be treated as if he were next friend. Ibid.
9. So, where non-resident infant tenants in common filed an ex parte peti-
tion to sell land for partition, by their guardian, who was a non-resi-
dent; It was held, that the decree of sale was not void, and could not
be attacked collaterally. Ibid.
10. Since the Act of 1881, (The Code, §1345,) a judgment against a guar-
Idian in favor of his ward is not conclusive and irrebuttable evidence
in an action on his bond. Moore v. Alexander, 34.
II. A judgment against an infant who has been served with process is not
void, but at most is only irregular and voidable. Syme v. Trice, 243.
12. The Court will not set aside an irregular judgment against an infant as
of course, and it will not do so when it appears from the record or
otherwise that the infant suffered no substantial wrong and the rights
of third parties, without notice, have intervened. Ibid.
13. Infants may sue or be sued, and are as much bound by the judgment
as persons sui juris, but infants must sue by a next friend or guardian,
and defend actions against them by a regular guardian, or if they have
none in this State, by a guardian ad litem. Ward v. Lowndes, 367.
14. The provisions of the statute in regard to the appointment of guardians
ad litem should be strictly observed, but mere irregularities in observ-
ing them, not affecting a substantial right, will not vitiate judgments
and decrees obtained in the action or proceeding in which such irreg-
ularities exist. Ibid.
15. Courts obtain jurisdiction over infant defendants over fourteen years old
exactly in the same manner in which they do over adults, but if the
infant is under fourteen, besides serving them personally and leaving
a copy with them, a copy of the summons must also be delivered to
the father, mother, or guardian, or if there is none in this State, then
to the person who has the care and control of the infant, and in the
case of non-resident infants by publication as in other cases. Ibid.
16. An infant is liable both civilly and criminally for his torts, and in an
action for damages, it is immaterial that the tort was committed by the
direction of one having authority over the infant. Smith v. Kron, 392.
17. While infants are incapable of making a contract with an agent either
express or implied, so as to bind them for his torts committed in pur-
suance of the agency; It seems, that an infant is liable for torts com-
mitted by his agent in the necessary prosecution of the business of the
agency under the maxim, qui facit per alium, facit per se. Ibid.
1. Where the complaint states facts sufficient to authorize a temporary in-
junction, and the answer raises serious issues, the determination of
which is doubtful, it is not error to continue the injunction till the
hearing upon the merits, especially when it appears that the subject-
matter of the action will remain unimpaired. Whittaker v. Hill, 2-
2. An injunction will be continued to the hearing to retain control of a
trust fund, when the rights of the parties are doubtful, and the de-
fendant threatens to remove the fund beyond the jurisdiction of the
Court. Frank v. Robinson, 28.
3. In such case the Court may allow the defendant to dispose of the prop-
erty, upon his giving bond to protect the other claimants. Ibid.
4. While a creditor can issue execution and sell property disposed of in
fraud of creditors, this does not prevent a Court of equity from restrain-
ing the fraudulent donee until the question of fraud can be tried, so
that the property can be sold free from any cloud, and under the Code
practice all this may be done in one action. Ibid.
5. In applications to continue injunctions to the hearing the Supreme Court
will review the facts and pass upon their sufficiency to warrant the
judgment appealed from. Evans v. The Railroad, 45.
6. Where it appeared by the affidavit of two physicians that a sewer used
by the defendant was dangerous to the health of the plaintiffs; It was
held no error to continue the injunction against its nse to the hearing.
Ibid.
7. In such case it is immaterial that the sewer is also used by others. Ibid.
8. When the County Commissioners ascertain and declare the result of an
election their action and declaration cannot be attacked collaterally,
but it may be by a direct proceeding for that purpose. McDowell v..
Cons. Co., 514. Goforth v. Cons. Co., 535.
9. In an action brought to have an election to ratify the issue of bonds to
a railroad corporation declared void, and to restrain the issuing of the
bonds, it was made prima facie at least, to appear, that the election
was not called in accordance with law; that no notice of the election
was given; that no opportunity was given for registration to such per-
sons as had become qualified since the last election; that as a matter
of fact, a majority of the qualified voters did not vote for the measure,
and that there were various other grave irregularities; It was held,
that an injunction until the hearing should be granted, to restrain all
action under and in pursuance of the election. Ibid.
10. Where in such case, it was made to appear, that since the appeal was
taken, the bonds had been delivered; It was held, that it was imma-
terial.
1. Where an application for a life insurance policy declares on its face that
payment of the premium is a condition precedent to the issuing of the
policy, the policy is not in force until the premium is actually paid.
Ormond v. The Ins. Co., 158.
2. Any change in the health of the insured between the application for life
insurance and the issuing of the policy should be communicated to the
insurer. Ibid.
3. Where prepayment of the premium is made an essential part of the
agreement no agent can dispense with its requirement. Ibid.
4. So, where the insured made application for insurance, and the applica-
tion set out that the policy would not take effect until the premium
was paid, but the agent of the insurer told the applicant that he could
pay the premium either at that time or when the policy was delivered,
and the applicant elected to pay at the latter time, but died before the
policy was received; It was held, that the policy never took effect and
the insurer was not liable. Ibid.
5. In an action on a policy of insurance wherein several distinct articles
are insured it is not proper to submit separate issues as to the value of
each separate article. Cuthbertson v. Ins. Co., 480.
6. The application for insurance forms a part of the contract, and the in-
quiry and answers are tantamount to an agreement that the matter
enquired about is ma'erial, and its materiality is not open to be tried
by the jury. Ibid.
7. In the absence of fraud or mistake a party will not be heard to say that
he was ignorant of the contents of a writing signed by him, containing
a contract on his part. Ibid.
8. So where a party signed an application for insurance which contained a
warranty that the property belonged to the applicant in fee, and that
there were no liens on it, he will not be allowed to testify that he did
not know that such a fact was stated in the application. Ibid.
9 Where an application for insurance contained a statement which was
made a warranty by the terms of the policy, that the house in which
the insured property was belonged to the applicant in fee, and that
there were no liens on the property insured; It was held, that the
warranty was broken when it appeared that the house was built on
land leased by the applicant, and was to become the property of the
lessor at the end of the lease, and that the title to the property insured
was vested in another person as a security for the purchase money.
Ibid.
10. Where several distinct kinds of property are insured in the same policy,
and there is a false statement in the application as to some of it, it
avoids the policy as to all, as the policy is one entire and indivisible
contract. Ibid.
Where a mortgage is executed to secure a usurious note, the usury only
affects the interest and does not impair the validity of the mortgage.
Spivey v. Grant, 214.
1. A contract with a railroad company to carry freight from a place within
this State to a place within another State at a fixed price for the entire
route, the price thus charged being greater than that required from
others for same service, is not embraced by the provisions of §1966 of
The Code. McLean v. The Railroad, 1.
2. Such a contract is also a matter affecting interstate commerce, the con-
trol of which is vested exclusively in Congress. Ibid.
1. Where the plaintiff does not object to the counter-claim on account of
imperfect pleading, the Supreme Court, on appeal, will consider the
issues which were tried on it in the Court below. Smith v. McGre-
gor, 101.
2. No issue is necessary when the facts are not disputed. Alderman v.
3. In an action for damages for an injury caused by the negligence of the
defendant, where the defence is contributory negligence, it is some-
times proper to submit two issues, one as to the negligence of the de-
fendant, and the other as to the contributory negligence of the plain-
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