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fore, must be as to the mode of acquiring jurisdiction by circuit courts of the United States, in 1868, over the person and property of an infant defendant in an equity suit. The grant of judicial power contained in the constitution of the United States extends to all cases in equity between citizens of any state, and foreign citizens or subjects. Const. U. S. art. 3, § 1. The act of congress of May 8, 1792, (chapter 36, § 2,) provides that the mode of procedure in courts of equity shall be according to the principles, rules, and usages which govern courts of equity, as distinguished from courts of common law, subject to regulation by statute or by rules of the court made in pursuance thereof, and also subject to regulation by the rules of the supreme court. This is the whole extent of statutory regulation as to the jurisdiction of the circuit courts of the United States in equity. Under the authority given by congress the supreme court, at February term, 1822, promulgated rules of practice for the courts of equity of the United States, to take effect July 1, 1822. Equity Rules, 7 Wheat. v. In Story v. Livingston, 13 Pet. 359, it is said that these rules are obligatory on all the United States courts, and, where they do not apply, "the practice of the circuit and district courts shall be regulated by the practice of the high court of chancery in England," (page 368;) and Judge Story had previously said, in Pratt v. Northam, 5 Mason, 95, 105:

"It has often been decided by the supreme court that the equity jurisdietion of the United States is not limited or restrained by the local remedies in the different states; that it is the same in all the states, and is the same which is exercised in the land of our ancestors, from whose jurisprudence our own is derived."

In January, 1842, the supreme court revised the equity rules, and promulgated them anew, to take effect August 1, 1842, (Equity Rules, 1 How. lxix.,) and these rules regulated the procedure of the circuit courts of the United States, in equity, in 1868. Rule 90 is as follows:

"90. 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 convenience, of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice."

When the above rule took effect the general orders of the high court of chancery in force were those which had been issued up to April 11, 1842, and they contained no directions as to any special mode of service of subpoena on infant defendants, or anything in the nature of a condition precedent as to the acquisition of jurisdiction over infant defendants, as contradistinguished from adult defendants. The United States equity rules of 1842 provide that "the process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill," (rule 7,) and shall not issue from the clerk's office in any suit in equity until the bill is filed in the office, (rule 11,) and shall then issue Sup. Ct.]

SLOANE V. MARTIN.

thereon, as of course, and be returnable into the clerk's office the next rule day, or the next but one, after 20 days from the issuing thereof. At the bottom of the subpoena shall be placed a memorandum that the defendant is to enter his appearance in the clerk's office on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso, (rule 12.) It is then provided, by rule 13, that "the service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or, in case of husband and wife, to the husband personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some free, white person who is a member or resident in the family." No different mode of service is prescribed as to infant defendants from that prescribed as to adult defendants. Rule 15 provides that "the service of all process, mesne and final, shall be by the marshal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise." Rule 17 provides that the appearance day of the defendant shall be the rule day to which the subpoena is returnable, provided he has been served with process 20 days before that day, and that the appearance of the defendant, either personally or by his solicitor, shall be entered in the order book on the day thereof, by the clerk. Rule 23 provides that the prayer for the process of subpoena in the bill shall contain the names of all the defendants in the bill, "and, if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon, as justice may require upon the return of the process." Rule 87 is as follows: "Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or others persons who are under guardianship, or otherwise incapable to sue for themselves."

It thus appears that while it was competent for congress, by statute, or for the supreme court by rule, to prescribe the manner in which infant defendants in equity suits in a federal court shall be subjected to the jurisdiction of the court, this subject had not, up to 1868, been regulated either by statute or by rule. In most of the states, as in our own state, as already shown, there are positive statutory regulations on this subject, binding on the state courts, so that conformity to them is essential to the jurisdiction over infants; but these state regulations in no way affect the United States courts, and we are remitted to the practice of the English high court of chancery for the rule of procedure, so far as the equity rules are silent. As already seen, the equity rules provide one and the same course for the service of the subpoena on all the defendants, and treat all as alike capable of appearing, either personally or by solicitor, and prescribe for all of them the same appearance day. As to infants, after return of process, the court is to proceed as justice may require, and may appoint a guardian ad litem to defend the suit. Recurring to the judgment record in the Drake suit, it shows that after the filing of the bill, and the issuing of the subpoena, an appearance was entered by a solicitor for the infant defendants, followed by a petition on their behalf, by their mother, for the appointment of a guardian ad litem, stating, according to the form given in Daniell's Chancery Pleadings and Practice, already cited, which is identical with that given in Smith's Chancery Practice, (page 576,) that a bill had been filed, and that the petitioners have entered their appearance, and are preparing to answer the same; that the petitioners are infants; and that the person named is a proper person to be appointed guardian ad litem to defend the suit. This was in accordance with the course of practice in the English high court of chancery. The jurisdiction of that court over the persons and estates of infants, whether originally derived from the crown, as parens patriae, and thence transferred to the court, or assumed as customary law, without formal delegation, is firmly established as a judicial function of the court, and is exercised by the chancery judges as a matter of discretion, except so far as the power is curtailed or regulated by statute. 3 Pom. Eq. Jur. § 1304; 2 Story, Eq. Jur. §§ 1327, 1334. And when an infant is made party defendant in a suit, although he may not be under a general guardian appointed by the court, he is treated as a ward of the court, and as being under its special cognizance and protection. 2 Story, Eq. Jur. § 1357. In Chambers' Law of Infants, (Introduction, p. 25,) it is said that an infant made a ward of the court by bill is "in every sense under its protection and control. The mere filing of a bill, to which the infant is a party, makes an infant a ward of court, and, when the infant is once a ward, any matter may then be determined on petition or motion." In McPherson on Infants, (page 396,) it is said: "Where a suit is instituted against an infant, his infancy is not noticed in the bill, unless it be a material fact in the cause, and he is served with the subpoena, and must appear in the usual way." It is further said: "A solicitor ought not to take upon himself to appear for an infant defendant without some authority from the infant's friends. After an appearance has been entered for the infant, the court appoints a guardian to conduct his defense, called 'guardian ad litem." And the practice as to the appointment of guardians ad litem is then given in detail. It is said in Smith's Chancery Practice (volume 1, p. 122) that "the appearance of the defendant is necessary, except where otherwise provided for by act of parliament, to give the court jurisdiction over the subject-matter in dispute." The directions given in the work as to the service of the subpoena are the same in respect to infant as to adult defendants, and it is nowhere intimated that personal service on them is a prerequisite to the appointment of a guardian ad litem when they voluntarily appear, and application is made on their behalf for such appointment. In case of nonappearance, proceedings might be taken by the plaintiff against the infant defendant to compel appearance, and to bring the infant before the court by a messenger or by a commission, in order to have a guardian ap pointed. Pages 113, 114, 145. The cases are numerous which

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show that the court exercised its jurisdiction over infant defendants, and appointed a guardian ad litem, after appearance in their behalf by a solicitor upon their application, or upon that of the plaintiff when the infant failed to apply, and where there had been no service of the subpoena upon them. A voluntary appearance by any defendant, adult or infant, was all that was necessary to call for and justify the action of the court in assuming jurisdiction. Lord Redesdale says, in his treatise on Pleadings and Practice in Equity:

"It is a rule in equity practice that no decree can be passed against a defendant without his real or constructive appearance. By his appearance, he submits to the jurisdiction of the court." Mitf. Pl. & Pr. 432.

In practice, this rule included infant defendants.

In Cookson v. Lee, 15 Sim. 302, the infant defendant had appeared by a solicitor, and, the time to answer the bill having expired, the plaintiff moved for the appointment of a guardian ad litem. The question was raised whether there ought not to be proof of service of the subpoena, and of notice of the motion. "The vice chancellor said that, as the infant had appeared, the service of the notice of motion on the solicitor who had entered the appearance was sufficient, and that an affidavit of the service of the subpoena was not necessary, and therefore he should make the order."

Lloyd v. Rossmore, 9 Ir. Eq. 488, seems precisely in point. An application was made to the vice chancellor, on behalf of an infant, for the appointment of a guardian ad litem. The infant had not been served, but an appearance had been entered for him by a solicitor; and the question was whether, without service on the infant, the guardian could be appointed. The case stood over for a week, and the vice chancellor then rendered his decision, as follows:

"It is alleged that there is a difficulty in this case, because the infant defendant had not been served, but I am of opinion that a guardian may be appointed notwithstanding this fact. Any defendant, whether an infant or of full age, may appear gratis. If an appearance has been entered for an infant, an affidavit of service of the subpoena is not necessary to entitle the plaintiff to appoint a guardian. Cookson v. Lee, 15 Sim. 302. And in Wood v. Logsden, 9 Hare, Append. 26, proof of appearance of the infant to a claim was held sufficient to enable the court to dispense with an affidavit of the service of the writ of summons. So, also, in Bentley v. Robinson, 9 Hare, Append. 76. Application should, in such case, be made to the solicitor who had entered the appearance to appoint a guardian. Appearances are entered for infants in the same way as in the case of defendants; and if a solicitor, without any instruction, causes an appearance to be entered for an infant defendant, the appearance will be set aside, (1 Daniell, Ch. Pr. [5th Ed.] p. 533, citing Richards v. Dadley, [not reported,) and Leese v. Knight, 8 Jur. [N. S.] 1006, 10 Wkly. Rep. 711,) which shows that if such instructions had been given the appearance would have been regular. I am of opinion that a solicitor must be taken, in the absence of proof to the contrary, to have authority from his client to enter an appearance, and that that may be although the party is an infant, and that when once the appearance has been entered the court will act upon it without service."

It was the constant practice of the court of chancery to prescribe the mode of bringing the infant defendants within the jurisdiction of the court, by directing what should be sufficient service of the subpoena, both as to resident and nonresident infant defendants, and whether the issuing of a commission should be required, or dispensed with, in order to save expense, or for any other reason. Manifestly, the court would have had no power to direct a mode of substituted service, of its own motion, and without the authority of a statute or general order, if it did not possess such power as an incident of its jurisdiction over infants. A plain distinction exists between jurisdiction and the exercise of jurisdiction. Bango v. Duckinfield, 18 N. Y. 592. Where a court has jurisdiction of the subject-matter and of the parties, in case they are properly brought before it, as in the case at bar, which was that of a judgment creditors' suit against persons within its territorial jurisdiction, in aid of liens asserted as to property within the same jurisdiction, no question can arise, except as to the acts of the court in the exercise of a jurisdiction which belongs to it. Where a court has no jurisdiction to proceed at all, its acts must be void. Thus, in England, the court of chancery has uniformly held that it had no jurisdiction to direct the sale of infants' lands on petition; Lord Hardwicke saying in Taylor v. Philips, 2 Ves. Sr. 23, "there is no instance of this court binding the inheritance of an infant by a discretionary act of the court;" and in Russel v. Russel, 1 Moll. 525, the vice chancellor said that since that decision of Lord Hardwicke "the chancellor has never attempted to deal with the legal inheritance of infants without the aid of an act of parliament." And the same rule was applied in our court of chancery. Rogers v. Dill, 6 Hill, 415. But where the court had inherent jurisdiction over the subject and over the parties, the mode of the exercise of such jurisdiction, in the absence of statutory regulations, was discretionary; and accordingly we find that in determining the course of practice as to infant defendants, and the exercise of jurisdiction in regard to them, whether resident or nonresident, the court was governed by its own precedents, and acted on its own discretion.

Instances of the control of the court over the manner of serving the subpoena, and of bringing infant defendants into court, where the infants were nonresident or concealed, or could not be found within the jurisdiction, and the mode of substituted service was directed by the court according to its discretion, are found in Thompson v. Jones, 8 Ves. 141; Jongsina v. Pfiel, 9 Ves. 357; Lingren v. Lingren, 7 Beav. 66; Smith v. Palmer, 3 Beav. 10; Lane v. Hardwicke, 5 Beav. 222; Wood v. Logsden, 9 Hare, Append. 26. Instances of the exercise of a like power as to infants within the jurisdiction, in addition to the cases already cited, are the following: In Stillwell v. Blair, 13 Sim. 399, there were 20 infant defendants in the suit; 2 of them, residing within 20 miles of London, appearing in court for the purpose of having a guardian ad litem assigned to them. Their solicitors stated that the rest of the infants, who were within the jurisdiction, resided in different counties, more than 50 miles from London, and, to save the expense of commissions, applied to the court to appoint the same

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