The decisions of the other courts, however, consider a guardian ad litem as a trustee within the meaning of the rule, and will not uphold a purchase by him at a sale of the infant's property: Collins v. Smith, 38 Tenn. (1 Head) 251; Starkey v. Hammer, 60 Tenn. (1 Baxt.) 438; Gallatian v. Cunningham, 8 Cow. 361; nor can he acquire the property of infant heirs pending a litigation in respect to it: Massie v. Matthews, 12 Ohio, 351.

The rule prohibiting a purchase by a guardian ad litem, not made for the benefit nor in behalf of his infant wards, is absolute, and it makes no difference that the purchase was made, not for the guardian's own benefit, but for that of some other person: Le Fevre v. Laraway, 22 Barb. 167. The presumption in the case of a purchase by the guardian ad litem is that it is for his benefit, and the burden is on him to show that it was made for the infant's good: O'Donoghue v. Boise, 92 Hun, 3, 37 N. Y. Supp. 961. That the remedy of infants against persons purchasing from their guardian ad litem, who bought the property at a sale, is, in the absence of any statutory provision, in equity, and hence voidable and not void, see Dugan v. Denyse, 13 App. Div. 214, 43 N. Y. Supp. 308.

Power to Waive Service of Process.-As a general rule, a guardian ad litem cannot waive service of process: Robbins v. Robbins, 2 Ind. 74; Pugh v. Pugh, 9 Ind. 132; Cormier v. De Valcourt, 33 La. Ann. 1168. So the answer of guardian ad litem does not make his wards parties and dispense with the necessity of services of process: Frazier v. Pankey, 31 Tenn. (1 Swan) 75. In Hannum v. Wallace, 28 Tenn. (9 Humph.) 129, however, it was held that, if not prejudicial to their interests, the guardian might waive service of a copy of the declaration and notice, thus saving delay and a useless accumulation of costs.

In Banta v. Calhoun, 9 Ky. (2 A. K. Marsh.) 166, it was held that if the guardian appeared, it was not necessary for process to be served on the infant. And where a minor has been served with citation, and a guardian ad litem appointed for him, such guardian may waive notice of citation, and consent to a hearing: Pollock v. Buie, 43 Miss. 140. Where a warning order published against a minor defendant was not entirely definite as to the place at which he was warned to appear, and a guardian ad litem was appointed by the court, who filed an answer for his ward, it was held that the notice and appearance were sufficient to bind the latter: Williams v. Ewing, 31 Ark. 229.

Right to Appeal.-A guardian ad litem may and should appeal whenever, in his opinion, it is necessary to protect his ward's interest: Sprague v. Beamer, 45 Ill. App. 17; Loftis v. Loftis, 94 Tenn. 232, 28 S. W. 1091; Tyson v. Tyson, 94 Wis. 225, 68 N. W. 1015; and leave of the court is not necessary: Jones v. Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883.

Under a statute restricting the right of appeal to parties to a suit, a guardian ad litem may be a party thereto, and as such has the right

of appeal on behalf of the infants, to protect or advance their interests: Thomas v. Safe Deposit etc. Co., 73 Md. 451, 21 Atl. 367, 23 Atl. 3. In Harlan v. Watson, 39 Ind. 393, it is held that such a guardian cannot appeal in his own name.

Power to Make Oath for Infant.-The next friend of an infant may verify a pleading in the action in which he is acting: Turner v. Cook, 36 Ind. 129; and he may make an affidavit in replevin: Wilson v. Me-ne-chas, 40 Kan. 648, 20 Pac. 468; and also for an attachment, and stating therein that he has commenced the action as next friend sufficiently avers the agency: McDowell v. Nims, 15 Week. Law Bull. (Ohio) 359.

Duty to Use Good Faith.-A guardian ad litem must act toward the infant whom he represents in good faith: Spelman v. Terry, 74 N. Y. 448. In that case a special guardian attempted to make use of an invalid claim and to put a purchaser of such claim from him in possession of land of an infant. The court condemned any such action in the following words: "We do not hold that one appointed special guardian to sell infants' real estate, who then holds a valid encumbrance upon or a claim against the same, thereby loses his rights in his encumbrance or claim, or is to forego the sale of it to his own advantage. What we do hold is, that he may not, after he is appointed, so use an invalid claim held by him as to put a purchaser of it from him into possession of the lands; whereby an action of ejectment is made necessary to regain possession by the one lawfully entitled. It is an act in hostility to the interests of his ward, and inconsistent with the duty he owes. For the damage from such act he should make just compensation. Such rule is a branch of the principle that one holding a relation of trust to another cannot deal with the trust estate or fund to his own profit and the harm of the cestui que trust.'' If the next friend plays his infant ward false, the judgment is not thereby rendered void, but the defrauded plaintiff may resort to a court of equity to set aside and undo the fraudulent work and to wipe out the record, falsely obtained, by which he is confronted: Cudleigh v. Chicago etc. Ry. Co., 51 Ill. App. 491.

In Ivey v. McKinnon, 84 N. C. 651, it is held that if in partition proceedings the interest of a prochein ami is adverse to that of the infant, a decree therein will not on that account be disturbed unless fraud or collusion is established. Where an infant sues a guardian personally for positive and specific fraud, no prior accounting from the guardian is necessary, as it is where an action upon a guardian's bond against his sureties is sought to be brought: Koch v. Le Frois, 61 Hun, 205, 15 N. Y. Supp. 928. It is not a badge of fraud that a decree, rendered on a certain day, was entered as of a week previous, without objection from the guardian ad litem; nor that he failed to apply for a rehearing: Kingsbury v. Buchner, 134 U. S. 650, 10 Sup. Ct. 638. And taking a second mortgage by a special guardian is not wrongful, nor necessarily a breach of trust, where appointed for

the sale of infants' lands: Monroe v. Osborne, 43 N. J. Eq. 248, 10 Atl. 267.

Miscellaneous Rights and Duties.-The powers of a guardian ad litem are strictly limited to the matter before the court. Hence he cannot bind his ward by a release, to qualify a witness to testify: Walker v. Ferrin, 4 Vt. 523; nor can he make a demise in ejectment: Massies v. Long, 2 Ohio, 287, 15 Am. Dec. 547. He cannot consent to a sale of his ward's real estate to satisfy notes for purchase money, before their maturity: Melton v. Brown, 20 Ky. Law Rep. 882, 47 S. W. 764. If, however, a sale of the minor's property is for his benefit, it will not, without complaint on his part, be set aside on the application of the purchaser: Curd v. Bonner, 44 Tenn. (4 Cold.) 632. Where a special guardian of infants entered into a contract of sale conjointly with the adult owners, and the deed tendered the purchaser was executed by the guardian jointly with the other owners, it was held no objection, the fact that other parties owning other interests joined in the same contract and deed not depriving either instrument of its binding effect upon all concerned: O'Reilly v. King, 28 How. Pr. 408. Where an order is made by a court of chancery appointing a guardian for certain infants, and authorizing him to cancel a bond and mortgage belonging to them, upon receiving another one on unencumbered real estate, this latter provision is a condition precedent to his discharging the bond and mortgage, and he has no right to do so unless he receives the security mentioned in the order: Swarthout v. Swarthout, 7 Barb. 354.

A replevin bond in a suit by an infant is valid, though executed by his next friend as one of the two sureties required by statute, he not being a party, but in the nature of an attorney: Anonymous, 2 Hill, 417. He may elect to bring the infant's estate into hotchpot: Andrews v. Hall, 15 Ala. 85.

Where a mortgage is given to the special guardian of an infant for the latter's benefit, such special guardian is the proper person to file a bill for the redemption and assignment of a senior mortgage upon the same premises: Pardee v. Van Anken, 3 Barb. 534. The investment of infant's money by a guardian ad litem in the capital stock of a bank is legal, though it afterward fail: Haddock v. Planters' Bank, 66 Ga. 496.

A next friend falls within the principle that statements made in the course of judicial proceedings with regard to third persons are conditionally privileged and not actionable if made without malice, with probable cause, and under such circumstances as to reasonably create the belief that they were true: Ruohs v. Backer, 53 Tenn. (6 Heisk.) 395, 19 Am. Rep. 598.

ESTATE OF JAMES MCGINN, DECEASED.

[No. 7,054; decided April 20, 1889.]

Jurors-Consideration of Rejected Evidence.-Jurors should banish from their minds all evidence ordered stricken out by the court in the course of the trial, all questions which the court ruled should not be answered, and all remarks of counsel in presenting or arguing such matters for the consideration of the court. (Court's Charges A, B.)

Jurors-Consideration of Testimony Stricken Out.-If proof of an essential fact is dependent upon testimony stricken out by the court, such essential fact must be considered by the jury as not proved. (Court's Charge B.)

Jurors-Consideration of Question When Evidence Stricken Out.— If proof of an essential fact in an issue submitted to a jury is rendered incomplete because of testimony struck out by the court, the jury must consider such fact as unproved, unless the defect of proof is supplied by other testimony. (Court's Charge B.)

Jurors-Weight of Testimony and Credibility of Witnesses.—Any Remark or Statement by the Court during the course of a trial by jury, which concerns the weight of testimony or the credibility of a witness, or any matter within the jury's province, should be utterly disregarded by the jury; a consideration of it in reaching their verdict would be error. (Court's Charge C.)

Special Verdict-Instruction as to Form.-Special Verdicts with blanks to be filled out by the jury, by way of answer to each issue. (Court's Charge D.)

Special Verdict-Instruction as to Manner.-Reaching and returning verdict by a jury; and duty as to required information touching evidence or law during the deliberations. (Court's Charges E, F.)

Will Contest-Verdict of Jury.-Whenever three-fourths of a jury on a will contest agree on an answer to an issue, it becomes the jury's verdict on that issue; and whenever three-fourths agree on a verdict, the jury must be conducted into court and the verdict rendered in writing by the foreman, whereupon, if more than one-fourth of the jurors disagree, upon polling, the jury must be sent out again, otherwise the verdict is complete. (Instruction 1. Court's Charges E, F.)

Evidence.-Direct Evidence Proves the Litigated Fact in a direct manner, without (the necessity of) inference or presumption. (Instruction 4.)

Evidence. Indirect Evidence is Proof of a Fact other than the litigated fact, but which justifies an inference or presumption of the existence of the litigated fact. (Instruction 4.)

Evidence. Indirect Evidence is of Two Kinds, namely, inference and presumption. (Instruction 4.)

Evidence.-A Presumption is a Deduction Made by the Law from proof of particular facts. (Instruction 4.)

Evidence.-An Inference is a Deduction Made by the Reason of the jury from proved facts; the law being silent as to the effect of such facts. (Instruction 4.)

Evidence Conclusive Presumption.-A Jury must Find a Fact in accordance with a conclusive presumption of law announced by the court. (Instruction XXVIII.)

Evidence.-An Inference must be Founded upon a Fact Legally Proved, and upon such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature. (Instruction 4.) Evidence Weight and Reliability of Expert Testimony. The testimony of experts (here medical witnesses) based upon hypothetical questions, is frequently unsatisfactory and often unreliable; and while accepted in law, and so requiring consideration, is not entitled to as much weight as are facts, especially in cases of conflict between opinion and fact. (Instruction XLV.) (This instruction is hardly in accord with Estate of Blake, 136 Cal. 306, 70 Pac. 171, holding that it is the sole province of the jury to determine the credibility of experts and the weight to be given their testimony.)

Evidence.-Experts and Opinion Evidence, Contrasted with Nonexperts and nonopinion evidence (facts), and discussion as to characteristic differences in the certainty or uncertainty of the various subjects themselves, embraced within the domain of expert evidence. (Instruction XLV.)

Evidence Estimation According to Intrinsic Weight and Power to Produce.-Evidence is to be estimated not only by its own intrinsic weight, but also in view of the evidence which it is in the power of one side to produce, and of the other side to contradict. (Instruction 3.)

Evidence-Power to Produce.-Evidence Should be Viewed with Distrust when it appears that stronger and more satisfactory evidence was within the power of the parties to produce. (Instruction 3.)

Evidence. Jurors are the Exclusive Judges of the Credibility of each and every witness. (Instruction 3.)

Evidence. While Jurors are the Sole and Exclusive Judges of the value or effect of the evidence in a case, their power is not arbitrary, but subordinate to the rules of evidence and the exercise of legal discretion. (Instruction 2.)

Will Contest.-The Failure of a Party to a Will Contest to be a Witness in his own behalf does not authorize a jury to draw any inference therefrom. (Instruction XLVIII.)