the court.10 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.11 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 taken. off the file,12 but it has been held that a bill cannot be dismissed upon the motion of the defendant because the complainant was in filing the same dominated by another person, to such an extent that she was not free to exercise her will, when the complainant does not unite in the motion. 18 If, however, after a suit has been properly instituted, a plaintiff becomes imbecile, the bill cannot for that reason be taken off the file.14

§ 92. Capacity of foreign executors and administrators 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, unless the State statute authorizes such suit; in which case the Federal court will follow the State practice. This rule forbids an action by a foreign administrator without ancillary letters to recover damages for the death of his intestate within the State where the suit was

10 Howard v. Skinner, 87 Md. 556, 40 L.R.A. 753; Pyott v. Pyott, 191 Ill. 280.

Jac.

11 Wartnaby v. Wartnaby, 377; Owing's Case, 1 Bland (Md.), 370, 373, 17 Am. Dec. 311; Story's Eq. Pl. § 66.

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

13 Speckart v. Schmidt, C. C. A., 190 Fed. 499.

14 Wartnaby v. Wartnaby, Jac. 377.

§ 92. 1 Fenwick V. Sears, 1 Cranch, 259, 2 L. ed. 101; Dixon v. Ramsay, 3 Cranch, 319, 2 L. ed. 453; Doe v. McFarland, 9 Cranch 151, 3 L. ed. 687; Kerr v. Moon, 9 Wheat, 565, 6 L. ed. 161; Mason v. Hartford, Providence & Fishkill R. Co., 19 Fed. 53; Duchesse d'Auby

v. Porter, 41 Fed. 68; Johnson v. Powers, 139 U. S. 156, 158, 35 L. ed. 112, 113; Re Kingsley, 160 Fed. 275; J. B. & J. M. Cornell Co. v. Ward, C. C. A., 168 Fed. 51; Dodge v. Town of North Hudson, 177 Fed. 986; Watkins v. Eaton, C. C. A., 183 Fed. 384; Klug v. Martinsburg Power Co., 229 Fed. 861; St. Bernard v. Shane, 201 Fed. 453; Old Dominion Trust Co. v. First Nat. Bank, 252 Fed. 613' (a curator).

2 Hayes v. Pratt, 147 U. S. 557, 37 L. ed. 279; Beaumont v. Beaumont, 144 Fed. 128, under New Jersey Statute; Provident Life & Trust Co. v. Fletcher, 237 Fed. 104 (New York Statute); Public Service Electric Co. v. Post, C. C. A., 257 Fed. 933 (New Jersey Statute).

6

brought, under the Federal Employers Liability Act. The action may be brought by an ancillary administrator appointed in a State where the employee was not domiciled. The omission is cured by the issue of ancillary letters at any time before the hearing. An act of Congress authorizes them to sue without ancillary letters in the District of Columbia." It has been held that a foreign administrator, without ancillary letters, may sue to recover damages for the death of his intestate, which took place within the State of his appointment, when the cause of action arises under a statute of such State; but that a foreign administrator, appointed in the State of his decedent's domicile, cannot sue to recover damages for the death; under a statute of a State where the decedent died, which is different from those where the appointment was made and the suit is brought. A foreign executor may sue without ancillary letters when the title is vested in him as trustee by devise.10 A foreign executor or administrator, without ancillary letters, may sue to recover the proceeds of the decedent's estate, which is in the hands of an agent of such personal representative.11

8

§ 93. Capacity of foreign receivers to sue. Ordinarily a receiver appointed by a foreign court cannot sue to collect a cause of action that belongs to the corporation; 1 even when he brings

3 J. B. & J. M. Cornell Co. v. Ward, C. C. A., 168 Fed. 51; Dodge v. Town of North Hudson, 177 Fed. 986.

4 Anderson v. Louisville & N. R. Co., C. C. A., 210 Fed. 689.

5 St. Bernard v. Shane, 201 Fed. 453.

6 Hodges v. Kimball C. C. A., 91 Fed. 845.

724 St. at L. 431; Overby v. Gordon, 177 U. S. 214, 44 L. ed. 741; Brownson v. Wallace, Fed. Cas. No. 2,042, 4 Blatchf. 465.

8 McCarty v. N. Y., L. E. & W. R. Co., 62 Fed. 437.

9 Maysville Street R R. & Transfer Co. v. Marvin, C. C. A., 59 Fed. 91; Brooks v. Southern Pac. Co., 148 Fed. 986.

10 De Forest v. Thompson, 40 Fed. 375.

11 Moore v. Petty, C. C. A., 135 Fed. 668.

§ 93. 1 Booth v. Clark, 17 How. 322, 15 L. ed. 164; Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380; Great Western Mining & Mfg. Co. v. Harris, 198 U. S. 561, 49 L. ed. 1163; Sterrett v. Ind. Nat. Bank, 248 U. S. 73; Burr v. Smith, 113 Fed. 858; Hilliker v. Hale, C. C. A., 117 Fed. 220; certiorari denied 188 U. S. 739, 47 L. ed. 677; Edwards v. National Window Glass Jobbers Ass'n, 139 Fed. 795; Covell v. Fowler, 144 Fed. 535. It has been held: that this rule applies to a receiver appointed by a United States court of bankruptcy. In re

a suit in the name of the corporation itself. A receiver can never sue in a foreign court, to enforce a cause of action, upon which he could not sue in the courts of the State where he was appointed. It has been said: that a defendant to the suit, in which the foreign receiver was appointed, cannot, if he has been duly served with process, dispute the authority of the receiver to sue in a foreign court, at least where the judgment appointing the receiver expressly authorized him to sue in such foreign court. The fact that the court, which appointed the receiver, gave him leave to sue in another district, does not authorize him there to sue without an ancillary appointment.5 It has been held that a foreign receiver cannot obviate this objection by bringing a suit in the name of the corporation, nor by obtaining ex parte an order from the court in which the suit is brought and obtaining a ratification of the appointment by such court.7 It has been said: that when the foreign receiver is the statutory successor of a corporation, he can sue in a foreign court without an ancillary appointment.8

He can also do so when he has received a voluntary assignment

National Mercantile Agency, 128
Fed. 639.

2 Great Western Mining & Mfg. Co. v. Harris, 198 U. S. 561, 49 L. ed. 1163. See, however, Great Western Telegraph Co. v. Purdy, 162 U. S. 329, 40 L. ed. 986.

3 Hale v. Allinson, 188 U. S. 56, 47 L. ed. 380.

L.R.A.

4 Burr v. Smith, 113 Fed. 858. 5 Fowler V. Osgood, 4 (N.S.) 824, 141 Fed. 20.

6 Great Western Min. & Mfg. Co. v. Harris, 198 U. S. 561, 25 Sup. Ct. 770, 49 L. ed. 1163; Fairview Fluor Spar & Lead Co. v. Ulrich, C. C. A., 192 Fed. 894; Strout v. United Shoe Machinery Co., 195 Fed. 313; Fairview Fluor Spar & Lead Co. v. Ulrich, C. C. A., 192 Fed. 894; 35 St. at L. 65. See infra, §§ 304, 311.

7 Fairview Fluor Spar & Lead Co. v. Ulrich, C. C. A., 192 Fed. 894.

8 Relfe v. Rundle, 103 U. S. 222,

26 L. ed. 337 (where the statute upon the dissolution of an insurance company vested its assets in the superintendent of the insurance de partment and the latter was allowed to sue in a foreign jurisdiction); Bernheimer v. Converse, 206 U. S. 516; Avery v. Boston Safe Deposit & Trust Co., 72 Fed. 700; Rogers v. Riley, 80 Fed. 759; Hale v. Hardon, 89 Fed. 283, 287; Hale v. Coffin, 114 Fed. 567; Anderson v. Louisville & N. R. Co., C. C. A., 210 Fed. 689. Irvine v. Baker, 225 Fed. 834; Hopkins v. Lancaster, 254 Fed. 190, holding that the Federal Court is bound by the decision of the courts of the State which appointed the receiver as to the interpretation of the statute. Sterrett v. Second Nat. Bank, 248 U. S. 73. But see Hale v. Allinson, 188 U. S. 56, 69, 47 L. ed. 380, 389.

of the assets of the insolvent; 9 and where the statute vests in him the right to sue for and collect an assessment upon the stockholders, he is a quasi assignee and can maintain such suit in another jurisdiction.10 Where he has recovered a judgment in the State of his appointment he may maintain an action thereupon in another jurisdiction as a judgment creditor and his description of himself in his pleading as receiver may be disregarded as surplusage; 11 but it has been held that in such a case, he cannot sue to recover equitable assets until he has obtained a judgment in the State where they are situated,12 even though he shows that the debtor has no other property.

A receiver, appointed by a Federal court, can sue in the courts of the State where the Federal district is located.13 It seems that a receiver, appointed by a State court, can sue in the Federal court in the same district.1 14

§ 94. Who may be defendants. All persons may be made defendants, except the United States, without their consent,1 or a Territory thereof; 2 foreign States and sovereigns for acts done in a political capacity; 3 "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; and foreign executors and administrators,6 unless they have assets within the jurisdiction of the court where

9 Hawkins v. Glenn, 131 U. S. 319, 33 L. ed. 184; Lewis v. Clark, C. C. A., 129 Fed. 570; (where the assignment was made by a foreign receiver to a receiver appointed in another State, who was allowed to sue in a third State).

10 Converse v. Hamilton, 224 U. S. 243, 56 L. ed. 749; Irvine v. Putnam, 190 Fed. 321.

11 McBride v. Oriental Bank, 200 Fed. 895.

12 Trotter v. Lisman, 199 N. Y. 497.

13 Grant v. Buckner, 172 U. S. 232, 238, 43 L. ed. 430.

14 Porter v. Sabin, 149 U. S. 473, 37 L. ed. 815.

§ 94. 1 Carr v. U. S., 98 U. S.

433, 25 L. ed. 209; Kansas v. U. S., 204 U. S. 331, 51 L. ed. 510, infra, §§ 95-97.

2 Kawananakoa v. Polyblank, 205 U. S. 349, 51 L. ed. 834.

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

4 Eleventh Amendment to Constitution.

5 Barton v. Barbour, 104 U. S. 126, 26 L. ed. 672; Thompson v. Scott, 4 Dill, 508; Express Co. v. Railroad Co., 99 U. S. 191, 25 L. ed. 319. See § 314, infra.

6 Vaughn v. Northrup, 15 Pet. 1, 10 L. ed. 639; Courtney v. Pradt, 196 U. S. 89, 49 L. ed. 398; s. c., 135 Fed. 818; Lewis v. Parrish, C.

the bill is filed," in which case they are liable, as trustees, to account for the same, to those entitled thereto. Whether a suit can be brought against the President of the United States is undecided.9

§ 95. The United States as a defendant. In general. The United States cannot be sued in any court without their consent.1 A Territory of the United States, such as the Territory of Hawaii, or Porto Rico, has the same immunity. The District of Columbia has not. Neither has the city of Manila in the Philippines.5 Even if there is no remedy adequate to the