he is represented in the two actions by the same! 98, 100; Litchfield v. Burwell, 5 How. Pr. 341; guardian ad litem. 8. Judgment reversed as to the minor defendants, and affirmed as to the others. (January 18, 1892.) PPEAL by defendants from a judgment McClure v. Farthing, 51 Mo. 109; Ullery v. An agreement to let the result of one action determine the result of another is neither itself a "proceeding in an action" (i. e. an ordinary A of the District Court for Hennepin County matter of practice in conducting the case), nor in favor of plaintiff in an action brought to determine adverse claims to certain real estate. Modified. The facts are stated in the opinion. Mr. Edward Savage, for appellants: The court had no power to render a judgment against infant defendants upon the stipulation. It is a primary rule that no guardian or attorney can stipulate away in court the rights of infants. No judgment can be given against infant defendants without legal proof of the facts constituting a cause of action. Mills v. Dennis, 3 Johns. Ch. 367, 368, 1 L. ed. 651; Peak v. Pricer, 21 Ill. 164, 165; Edsall v. Vandemark, 39 Barb. 589, 599; Hotell v. Mills, 53 NY. 322, 335; Varner v. Rice, 44 Ark. 236, 244; Pillow v. Sentelle, 39 Ark. 61, 65; Newins v. Baird, 19 Hun, 306, 307; Hough v. Doyle and Hough v. Canby, 8 Blackf. 300, 301; Richards v. Richards, 17 Ind. 636, 638; Thayer v. Lane, Walker, Ch. 200, 204; Cooper v. Mayhew, 40 Mich. 528; Long v. Mulford, 17 Ohio St. 484, 93 Am. Dec. 638, 646; Bank of United States v. Ritchie, 33 U. S. 8 Pet. 128, 145, 8 L. ed. 890-897; Legard v. Sheffield, 2 Atk. 377; Revely v. Skinner, 33 Mo. A judgment against all the defendants, entered under a stipulation between the attorney for the plaintiff and certain adult defendants, that it should be in accordance with the decision in another case, should be set aside upon the application of the infant defendants. McClure v. Farthing, 51 Mo. 109. is it made in such a proceeding, nor does it purport or attempt "to bind clients in any of the proceedings in an action." It is an agreement or bargain outside of the action altogether, and hence is not binding on any of the defendants. 1 Am. & Eng. Encyclop. Law, p. 956; 2 U. S. Dig. (1st series) pp. 346, 349. Mr. John H. Steele, for respondent: Section 9, chapter 88, Gen. Stat. 1878, gives the attorney authority "to bind his client in any of the proceedings in an action or special proceeding by his agreement, duly made or entered upon the minutes of this court. To determine, then, whether an agreement by the attorney in the name of his client is binding on the latter, it is only necessary to inquire if it be a proceeding in the action. If it be, then it is binding, however disadvantageous it may be to his client. Bray v. Doheny, 39 Minn, 355; Brigham v. Winona County Suprs. 6 Minn. 136. Admissions of attorneys of record bind clients in all matters relating to the trial or progress of the cause. 1 Rogers v. Greenwood, 14 Minn. 333, citing notice of trial, but can admit nothing to sustain the action. Newins v. Baird, 19 Hun, 306. Since, under Cal. Civ. Code, § 795, the general guardian has authority to appear for minors in an action for partition, he may consent to the appointment of the single referee authorized by section 797. Richardson v. Loupe, 80 Cal. 490. A consent by the next friend or guardian ad litem that a case be heard in a particular division of the Supreme Court of Illinois did not prejudice the substantial rights of the infant, although in the absence of consent the supreme court sitting in one cannot take cognizance of a case from another division. Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047. In the last case the court said: "It is unnecessary to say that when there are several actions pending between the same parties, involving precisely the same facts, the guardian may not agree to submit the whole upon a single examination of witnesses, or, which is in effect the same thing, that the decis-division ion of one shall decide the whole. Such an agreement may be consistent with his duty, but that is not this case." The guardian ad litem has no power to waive the production of legal proof nor to consent to judgment without it, nor can he consent to the use of that as evidence which the law does not recognize as such. Litchfield v. Burwell, 5 How. Pr. 341; Crotty v. Eagle, 35 W. Va. 143. In Missouri a guardian ad litem in partition suits has, by virtue of statute, authority to bind his ward by stipulation in the nature of a waiver of proof. Le Bourgeoise v. McNamara, 82 Mo. 189. A guardian ad litem for an infant defendant in a partition suit has no right to enter into an arrangement by which the property is bid off for less than its value, whatever advantages to the infant are thereby contemplated. Howell v. Mills, 53 N. Y. 322,327, 335. A guardian ad litem has no power to execute a release to a proposed witness for the purpose of making him competent by discharging his interest. Walker v. Ferrin, 4 Vt. 523. After issue joined a guardian ad litem for an infant defendant can control the due and orderly management of the action. He can accept short Consent to take up a case for trial that has been fixed for a different day is not such a consent as will vitiate a judgment, although a minor represented by a special tutor be a party thereto. Succession of Byrne, 38 La. Ann. 518. The rule that a next friend or guardian ad litem cannot, by admissions or stipulations, surrender the rights of the infant, does not prevent a guardian ad litem or prochein ami from assenting to such arrangements as will facilitate the determination of the case in which the rights of the infant are involved. Kingsbury v. Buckner, 134 U. S. 650, 33 L. ed. 1047. A statutory provision requiring ten days' notice for the suing out of a commission to take depositions might have been waived by a guardian ad litem or next friend without the imputation upon him of fraud or collusion; nor are fraud and collusion to be imputed to him because he did not, after his appointment, file cross-interrogatories, when cross-interrogatories were filed by another party and were of the most searching character. Ibid. J. G. G. Without the aid of any such statute as ours, where the plaintiffs in a number of suits are all represented by the same attorney, the attorney has the power without being specially authorized to stipulate that one of those suits abide the event of another. North Missouri R. Co. v. Stephens, 36 Mo. 150; Ohlquest v. Farwell, 71 Iowa, 231. Gilfillan, Ch. J., delivered the opinion of the court: thing which may be prejudicial to the minor (Varner v. Rice, 44 Ark. 236; Pillow v. Sentella, 39 Ark. 61; Brenner v. Bigelow, 8 Kan. 496;) that he cannot waive any rights of the minor (Cartwright v. Wise, 14 Ill. 417; Litchfield v. Burwell, 5 How. Pr. 341; Howell v. Mills, 53 N. Y. 322;) nor make admissions either in the answer or for the purpose of the trial. Ashford v. Patton, 70 Ala. 479; Quigley v. Roberts, 44 Ill. 503; Tucker v. Bean, 65 Me. 352; Newins v. Baird, 19 Hun, 306. In this action, brought under the statute to determine adverse claims to real estate The decisions we have cited, though they three of the defendants are minors. A are extreme and go further than we would guardian ad litem for them was seasonably be willing to go, are in line with all the appointed, and the defendants, appearing by authorities, and accentuate the proposition the same attorney, answered jointly. After that the relation between the guardian ad the issues were made, the attorneys for the litem or the attorney whom he employs and "respective parties made a stipulation in the infant defendant is not the same as that writing that the action abide the event of between an attorney and an adult client. another action, which had been tried in the We would not be willing to assent to the district court, and was then pending on ap- proposition that a guardian ad litem or the peal in this court. Final judgment having attorney may not, in good faith, exercise been rendered in the action referred to, the discretion or judgment in the conduct of the court, on motion of the plaintiff, directed cause. As our system of pleading does not judgment to be entered for plaintiff pursuant provide any form of answer or verification to the stipulation, and from the judgment so by a guardian ad litem different from that entered all the defendants, adults as well as for any other defendant, we do not think an minors, appeal to this court. In the stipu- answer by the guardian can be condemned lation the plaintiff's name was spelled merely because it does not deny material "Eidem" instead of "Eidam." That would allegations in the complaint. Nor can we not be a misnomer in any case, but it admit that concessions or admissions such as would not matter if it were, for the court, an ordinarily made in the progress of a before acting on the stipulation, could ascer-cause, and which are entirely consistent with tain if it was intended to be one in this case. good faith, and which it is frequently for There can be no doubt it meant that judg- the interest of a party to make, may not be ment should be entered in this case accord- made by the guardian. To hold otherwise ing to the decision in the action referred to. would impeach any trial in which the guarAccording to the decisions of this court, such dian or attorney omitted to make objections a stipulation made by the attorneys would to evidence or proceedings in the trial which bind the adult clients, subject to the power he might have made. So in Re Hawley, 100 of the court to set it aside or disregard it, if N. Y. 206, 1 Cent. Rep. 287, and in Re Tilimprovidently, fraudulently, or collusively den, 98 N. Y. 434, it was held that a decree made. Bingham v. Winona County Suprs.allowing the accounting of an executor could 6 Minn. 136; Rogers v. Greenwood, 14 Minn. not be vacated on the application of a minor 333; Bray v. Doheny, 39 Minn. 355. There interested in it, and represented by a guaris no suggestion that this stipulation was dian ad litem, on the ground that items in obnoxious to such an objection. Nothing is the account ought not to have been allowed, called in question but the authority to make nor upon any other ground than such as would it on behalf of the minor defendants. It was have been available to an adult. And in therefore valid as to the adult defendants. Reed v. Reed, 46 Hun, 212, it was held that While it is true, as a general rule, that a judgment in partition could not be assailed, an attorney may bind his client by such a though in the same action, on the ground stipulation as this, it does not follow that that the guardian ad litem might have ob the attorney employed by a guardian ad jected, but did not, that the plaintiff had litem to represent the minor defendants may not such interest as entitled him to bring do so. The authority of the attorney cannot the action. The adult parties to an action be greater than that of the guardian who have rights in it as well as the parties who employs him. It is necessary, therefore, to are minors. The former are not to be made, consider what is the authority of the guar- without their consent, the guardians to prodian. The statute regulates the appointment tect the rights of the latter. It is for the of guardians ad litem, but does not define court to see that the rights of the minors are their powers. When appointed for an in- protected. This duty it performs by apfant defendant, it is to defend the interests pointing a proper person as guardian in a of the infant in the action. Some of the de- manner provided by law, and by the exercisions limit his power so as practically to cise, whenever necessary, of its right of deprive him of all discretion or exercise of supervision and control over the acts and judgment in conducting the defense. Thus conduct of the guardian thus appointed. In it has been held that the answer made by the the exercise of this control the court may set guardian should be a full defense, specifically aside or disregard acts or concessions of the denying the material allegations, without re- guardian which have not already passed its gard to the truth of the denials as to any scrutiny, and which, though fair on their that the others shall abide the event in one face, are shown to the court to have been For this reason it was error to order judg ment against the minor defendants, Edward A. Finnegan, P. James Finnegan, and J. Henry Finnegan. As to them the judgment is reversed, and affirmed as to the other de MASSACHUSETTS SUPREME JUDICIAL COURT. William MINOT, Jr., Appt., v. Augustus RUSS. Charles HEAD et al., Appts., v. Henry HORNBLOWER et al. 1. The drawer of a check who gets it certified in his own behalf or for his own benefit and then delivers it to the payee is not discharged, but continues liable where the bank fails before payment of the check. NOTE.-Effect of certification of check on liability of | drawer. The principal case very clearly states the law upon this question and brings out prominently the distinction which harmonizes the cases but which was overlooked for some time by the text-writers with the result of obscuring and throwing uncertainty into the question. As long ago as 1851 it was held that if the holder of a check has it certified by the bank the fund represented by it is then in the condition of an ordinary deposit. Willets v. Phoenix Bank, 2 Duer, 132. See also Girard Bank v. Bank of Penn Twp. 39 Pa. 99, 80 Am. Dec. 507. And in 1873, Peckham, J., in delivering the opinion of the court in First Nat. Bank of Jersey City v. Leach, 52 N. Y. 350, said he knew of no direct authority upon the question but upon principle it must be held that when the holder presents the check and has it certified, the bank holds the money, not at the risk of the drawer but of the holder of the check. 2. If the payee or holder of a check gets (June 20, 1892.) APPEAL by plaintiff from a judgment of the Superior court for Suffolk County sustaining a demurrer to the complaint in an action brought to recover from the drawer the amount of a certified check which remained unpaid because of the failure of the bank. Reversed. This doctrine is recognized and cited in argument by the United States Supreme Court in Washington First Nat. Bank of Washington v. Whitman, 94 U. S. 343, 24 L. ed. 229. See also National Commercial Bank v. Miller, 77 Ala. 174. And in Thomson v. Bank of British North America, 82 N. Y. 6, Rapallo, J., said in argument that ordinarily where the payee or holder of a check instead of demanding payment procures the check to be certified it is as between drawer and holder regarded as paid. By having the check certified the holder makes the risk of the bank's failure his own. French v. Irwin, 4 Baxt. 401, 27 Am. Rep. 769. At the same time that the above decisions were being rendered there was a line of authority being established to the effect that if the drawer of the check bas it certified before he issues it, the certification does not relieve him from liability. Bickford v. First Nat. Bank of Chicago, 42 IU. 238, 89 Am. Dec. 436. This was followed by Rounds v. Smith, 42 I. MINOT V. Russ. APPEAL by plaintiffs from a judgment of the Superior Court for Suffolk County in favor of defendants in an action brought to recover from the drawers the amount of a check which plaintiffs had taken and had certified and which remained unpaid because of the failure of the bank. Affirmed. The facts are stated in the opinion. Mr. Frank Brewster for Minot, appellant. Mr. William C. Loring for Head et al., appellants. Mr. F. R. Jones for Russ, appellee. Messrs. M. & C. A. Williams for Hornblower et al., appellees. Field, Ch, J., delivered the opinion of the court: The first case is an appeal from a judg. ment rendered by the superior court for the defendant on his demurrer to the declaration. The defendant on October 29, 1891, drew a check on the Maverick National Bank payable to the order of the plaintiff, and, being informed by the plaintiff that the check must be certified by the bank before it would be received, the defendant on the same day presented the check to the bank for certification, and the bank certified it by writing on the face of the check the following: "Maverick National Bank. clearing house. Pay only through J. W. Work, Cashier. C. J., Paying Teller. A. After it was certified the check was, on Saturday, October 31, 1891, delivered by the defendant to the plaintiff for a valuable consideration. The declaration alleges that the bank stopped payment on Monday morning, November 2, 1891, "before the commencement of business hours of said day," and that on that day payment was duly demanded of the bank, and notice of nonpayment was duly given to the defendant. The second case is an appeal from a judgment rendered for the defendants by the superior court on an agreed statement of facts. On Saturday, October 31, 1891, the defendants drew their check on the Maverick National Bank, payable to the order of the plaintiffs, and delivered it to them in payment of stocks bought by the defendants of the plaintiffs. The check was received too 25, in which there seems to have been a slight ground for distinction raised because it did not appear that the check had when certified been charged to the account of the drawer. But this distinction was held to be immaterial in Brown v. Leckie, 43 Ill. 497, and it was there held that such fact would make no difference. In Larsen v. Breene, 12 Colo. 484, it was held that a certified check is not a payment of the debt when it was certified at the instance of the drawer. And in Born v. First Nat. Bank of Indianapolis, 7 L. R. A. 442, 123 Ind. 78, it was held that such acceptance is not ipso facto payment. In Andrews v. German Nat. Bank, 9 Heisk. 223, 24 Am. Rep. 300, it is said to be a question for the jury whether or not such check is taken as absolute payment. The distinction between the two classes of cases appears to have been first taken in Essex County Nat. Bank v. Bank of Montreal, 7 Biss. 193, in which the court held that if a bank receives a check for 16 L. R. A. 511 late to be deposited by the plaintiffs for col lection in season to be carried to the clearing house on that day, but during banking hours on that day the plaintiff's presented the check to the Maverick National Bank for certification, and the bank certified it by writing or stamping on its face the following: Certified. Maverick National Bank. 66 C. C. the holder a sum of money at the bank on collection and accepts a certification of it by the bank upon which it is drawn in lieu of payment it thereby assumes the risk of payment and becomes with interest from the date of the certification. liable to the owner for the amount of the check The distinction is broadly made by the Illinois Apv. Cornhauser, 37 Ill. App. 475. And the Supreme pellate Court in Continental Nat. Bank of Chicago Court of Illinois in Metropolitan Nat. Bank of Chicertification of a check on the payee's application cago v. Jones (Ill.) 12 L. R. A. 192, decides that the releases the drawer and expressly distinguishes the the certification had been made at the drawer's prior Illinois decisions on the ground that in them own request. As bearing upon the general question it was held in Mutual Nat. Bank v. Rotge, 28 La. Ann. 933, 26 request of an indorser before delivery to the holdAm. Rep. 126, that certification of a check at the er does not release the indorser's liability. bank to certify the check. The weight of authority is that if the drawer, in his own behalf or for his own benefit, gets his check certified, and then delivers it to the payee, the drawer is not discharged; but that if the payee or holder in his own behalf, or for his own benefit, gets it certified instead of getting it paid, then the drawer is discharged. Born v. First Nat. Bank of Indianapolis, 123 Ind. 78, 7 L. R. A. 442; Brown v. Leckie, 43 Ill. 497; Rounds v. Smith, 42 Ill. 245; Andrews v. German Nat. Bank, 9 Heisk. 211, 24 Am. Rep. 300; First Nat. Bank of Jersey City v. Leach, 52 N. Y. 350; Boyd v. Nasmith, 17 Ont. 40; Essex County Nat. Bank v. Bank of Montreal, 7 Biss. 193; First Nat. Bank of Washington v. Whitman, 94 U. S. 343, 345, 24 L. ed. 229–231; Metropolitan Nat. Bank v. Jones (Ill. Sup.) 12 L. R. A. 492; Continental Nat. Bank of Chicago v. Cornhauser, 37 Ill. App. 475; National Com mercial Bank v. Miller, 77 Ala. 168; Larsen v. Breene, 12 Colo. 480; Mutual Nat. Bank v. Rotge, 28 La. Ann. 933, 26 Am. Rep. 126; Morse, Banks, SS 414, 415. when they were presented for payment if the drawers had sufficient funds on deposit. The bank owed no duty to the drawers to certify the checks, although it could certify them if it saw fit, at the request of either the drawers or of the holders, and if it certified them it became bound directly to the holders, or to the persons who should become the holders. In either case the bank would charge to the account of the drawer the amount of the check, because by certification it had become absolutely liable to pay the check when presented. When a check payable to another person than the drawer is presented by the drawer to the bank for certification, the bank knows that it has not been negotiated, and that it is not presented for payment, but that the drawer wishes the obligation of the bank to pay it to the holder when it is negotiated, in addition to his own obligation. But then the payee or holder of a check presents it for certification the bank knows that this is done for the convenience or security of the holder. The holder could demand payment if he chose, and it is only because instead of payment the holder desires certification that the bank certifies the check instead of paying it. In one case the bank certifies the check, for the use or convenience of the drawer, and in the other for the use or convenience of the holder. In the present cases the checks were seasonably presented to the bank for payment, and on the facts stated the defendants would be liable unless the certification discharged them from liability. It is argued that the certifi-sidered as payment. It may also be said that cation of a check, whereby the bank becomes absolutely liable to pay it at any time on demand, discharges the drawer, because it is said that the check then becomes, in effect, a certificate of deposit; and it is also argued that the certification is, in effect, only an acceptance of a bill of exchange, and that if payment is duly demanded of the bank, and refused, and notice of nonpayment duly given, the drawer is held. So far as the question has been considered, it has been decided that the certification of a bank check is not in all respects like the making of a certificate of deposit or the acceptance of a bill of exchange, but that it is a thing sui generis, and that the effect of it depends upon the person who, in his own behalf or for his own benefit, induces the We are of opinion that this view of the law rests on sound reasons. If it be true that the existing methods of doing business make the use of certified checks necessary, the persons who receive them can always require them to be certified before delivery. If they receive them uncertified, and then present them to the bank for certification instead of payment, so far as the drawer is concerned, the certification should be conin the second case the certification amounted to an extension of the time of payment at the request of the payees without the consent of the drawers. Before the certification the drawers could have requested the payees to present the check for payment on Saturday, or could themselves have drawn out the money and paid the check. After certification the amount of the check no longer stood to the credit of the drawers, and the payees had accepted an obligation of the bank to pay only through the clearing house, which could not happen before the following Monday. The result is that in the first case the judgment is reversed, and the demurrer overruled; and in the second case the judgment is affirmed. So ordered. |