Thе action was brought by the father of the plaintiff as next friend. Before the trial, the court removed him, and appointed аnother person to act in that capacity. At the trial, the defendant offered to show, both in bar of the action and upon the question of damages, that the father, while acting as next friend and intending to protect the plaintiff’s interests,
The question whether a next friend can compromise and discharge the cause of action by an agreement made out оf court, has never come to this court for decision. Many of the numerous cases in which infants sue by next friends are never brought to a trial, but are so compromised or adjusted by the parties or counsel that they are disposed of by judgments entеred in fact by consent. Sometimes, but very rarely, the proposed arrangement is brought to the attention of the court, and its sanction obtained. In most instances, however, the settlement is made and the judgment entered without calling the attention оf the presiding justice to it, or obtaining his approval. That such judgments conclude the minor we have no doubt, since he is ordinarily bound to the same extent as a person of full age by acts done in good faith by his counsel in the course of a suit; and even in equity, if a decree is entered against him by consent without special inquiry, he will be bound by the decree. Walsh v. Walsh,
The principal cases in our reports in which the position of the next friend has been considered are Parsons v. Jones,
It is clear that, so far as these authorities go, his position and duties do not necessarily require him to have power out of court tо discharge the cause of action. Nor is there any doubt that the general principle is as stated in Denholm v. McKay,
An examination of the decisions elsewhere shows that they do not favor the proposition, that the next friend may discharge the infant’s cause of action by a settlеment out of court. It is held that he is an officer of the court appointed specially for the protection оf the infant’s interests; Morgan v. Thorne, 7 M. & W. 400; The Etna, Ware, 462; Baltimore & Ohio Railroad v. Fitzpatrick,
We see no reason why the next friend should not have authority to institute or to entertain negotiations for a sеttlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infаnt defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be sаid that every suit brought in the name of the infant is upon a good
When, however, he assumes finally to conclude a settlement out of court, and to discharge the causе of action by an agreement in pais, under which he accepts less than the plaintiff’s entire demand, he does morе than is clearly within his authority to prosecute the action, and more than we think ought to be allowed with due regard to the рrotection of the infant. Unless such a settlement is affirmed, either in terms if brought to the attention of the court, or by an entry of judgment in regular course, it may fairly be held invalid. If it is not of such a" nature as to commend itself to counsel, to whom, as well as to thе next friend, the infant has a right to look for protection, it ought not to stand unless sanctioned by the court. It is no injustice to a defendant to hold that the infant is not concluded until the cause is disposed of by judgment.
We hold that in the case at bar the settlement made by the father while next friend, having been made in the country and not sanctioned by the court, did not conclude the plaintiff. Evidence of it, therefore, was not admissible in bar; and as the father was never a party to the cause, no admission of his in the country, at least if made in the course of negotiations for a settlement, was admissible against her on the question of damages.
Exceptions overruled.