TRIPP V. GIfford. [155 MASSACHUSETTS, 108.] INFANTS. A NEXT FRIEND CANNOT COMPROMISE and discharge an action by agreement made in good faith out of court, where no judgment is entered in pursuance of such agreement, and it is never approved by the court. If, however, judgment should be entered in accordance with the agreement, it would no doubt bind the infant. In the absence of such judgment or approval, the agreement is not admissible in bar of the action, nor in mitigation of damages. W. C. Parker, for the defendant. BARKER, J. The action was brought by the father of the plaintiff as next friend. Before the trial, the court removed him, and appointed another 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, had in good faith made a settlement with the defendant, who had paid him the sum of fifty dollars, which both intended should be a full settlement of the cause of action. The only question in the case is, whether this evidence was rightly excluded. No agreement for the settlement or disposition of the cause was filed in court before or after the removal of the father as next friend, but the original liability of the defendant was not contested, and the case went to the jury on the question of damages only. The question whether a next friend can compromise and discharge the cause of action by an agreement made out of 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 entered 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 of 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, 116 Mass. 377, 382; 17 Am. Rep. 162. The principal cases in our reports in which the position of the next friend has been considered are Parsons v. Jones, 9 Mass. 106; Smith v. Floyd, 1 Pick. 275; Miles v. Boyden, 3 Pick. 213, 218; Crandall v. Slaid, 11 Met. 288; and Guild v. Cranston, 8 Cush. 506. From these decisions it is clear that while he may be any person who will undertake the infant's cause, the next friend is, in theory of law, appointed by the court. His authority is commensurate with the writ, the plaintiff's cause of action, pro hac vice, being intrusted to him. He may so conduct himself as to damage the plaintiff, to whom he will thereby become answerable. The court will be slow to interfere and revoke his authority, but when proper cause is shown, it will do so, and appoint another, or stay proceedings. He is not liable for costs, because not a party to the suit. Having been appointed to prosecute for the infant, he may discharge the judgment. The judgment, whether for or against the infant, will, while it remains in force, bar any future action for the same cause. 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 to discharge the cause of action. Nor is there any doubt that the general principle is as stated in Denholm v. McKay, 148 Mass. 434, 441, 12 Am. St. Rep. 574, that "the rights of infants are sedulously protected by courts of law and of equity, as well as by statute." 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 settlement out of court. It is held that he is an officer of the court, appointed specially for the protection of the infant's interests: Morgan v. Thorne, 7 Mees. & W. 400; The Etna, Ware, 462; Baltimore etc. R. R. Co. v. Fitzpatrick, 36 Md. 619; that he is not a party to the action for any purpose: Brown v. Hull, 16 Vt. 673; Sinclair v. Sinclair, 13 Mees. & W. 640, 646; In re Corsellis, 48 L. T., N. S., 425; Baltimore etc. R. R. Co. v. Fitzpatrick, 36 Md. 619; that he cannot submit the case to arbitration: Tucker v. Dabbs, 12 Heisk. 18; or bind the infant's estate for attorney's fees: Houck v. Bridwell, 28 Mo. App. 644; that he cannot compromise the suit without the express sanction of the court: Isaacs v. Boyd, 5 Port. 388; Miles v. Kaigler, 10 Yerg. 10; 30 Am. Dec. 425; Crotty v. Eagle, 35 W. Va. 143; Clark v. Crout, 34 S. C. 417; that while he cannot surrender substantial rights, he may assent to arrangements which will facilitate the trial and determination of the cause: Kingsbury v. Buckner, 134 U. S. 650; and that the court will always interpose to protect the infant against the collusion of the next friend with the adverse party, or any misconduct: The Etna, Ware, 462. We see no reason why the next friend should not have authority to institute or to entertain negotiations for a settlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infant defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be said that every suit brought in the name of the infant is upon a good cause of action, or that, if well brought, the just amount of the recovery cannot be arrived at without a trial, or that when the next friend and the defendant, and their respective counsel, who are sworn officers of the court, act in good faith, it is necessary that an investigation of the fairness of a proposed adjustment should be made or ordered by the court before disposing of the cause. The next friend is intrusted with the rights of the infant, so far as they are involved in the cause, and acts under responsibility, both to the court and the plaintiff. It may well be considered to be within his official duty to negotiate, if possible, a fair adjustment, without subjecting the plaintiff to the expense and risk of a trial. When, however, he assumes finally to conclude a settlement out of court, and to discharge the cause of action by an agreement in pais, under which he accepts less than the plaintiff's entire demand, he does more than is clearly within his authority to prosecute the action, and more than we think ought to be allowed, with due regard to the protection 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 the 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 plain tiff. 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. INFANTS.-A NEXT FRIEND cannot receive the money on a judgment in favor of an infant, enter satisfaction, and take the money out of court; much less can he compound the judgment: Miles v. Kaigler, 10 Yerg. 10; 30 Am. Dec. 425; Smith v. Redus, 9 Ala. 99; 44 Am. Dec. 429. Similarly, a guardian ad litem has only a special and limited authority, and his acts, so far as they transcend this authority, are void. He has no power to admit away the rights of the infant: Waterman v. Lawrence, 19 Cal. 210; 79 Am. Dec. 212, Compare Long v. Mulford, 17 Ohio St. 484; 93 Am. Dec. 638. COMMONWEALTH V. PERRY. [155 MASSACHUSETTS, 117.] CONSTITUTIONAL LAW.STATUTE DECLARING THAT NO EMPLOYER SHALL IMPOSE & fine or withhold the wages, or any part of the wages, of an employee engaged in weaving, for an imperfection that may arise during the process of weaving, is void, because it conflicts with that part of the state constitution enumerating as one of the inalienable rights of man that "of acquiring, possessing, and protecting property." A. J. Bartholomew, for the defendant. A. E. Pillsbury, attorney-general, for the commonwealth. KNOWLTON, J. This is an indictment under the statutes of 1891, chapter 125, the first section of which is as follows: "No employer shall impose a fine upon or withhold the wages, or any part of the wages, of an employee engaged at weaving, for imperfections that may arise during the process of weaving." Section 2 provides a punishment for a violation of the provisions of the statute, by the imposition of a fine of not exceeding one hundred dollars for the first offense, and not exceeding three hundred dollars for the second or any subsequent offense. The act recognizes the fact that imperfections may arise in weaving cloth, and it is evident that a common cause of such imperfections may be the negligence or want of skill of the weaver. When an employer has contracted with his employee for the exercise of skill and care in tending looms, it forbids the withholding of any part of the contract price for non-performance of the contract, and seeks to compel the payment of the same price for work which in quality falls far short of the requirements of the contract as for that which is properly done. It does not purport to preclude the employer from bringing a suit for damages against the employee for a breach of the contract, but he must pay in the first instance the wages to which the employee would have been entitled if he had done such work as the contract called for. It is obvious that a suit for damages against an employee for failure to do good work would be in most cases of no practical value to the employer, and theoretical remedy of this sort does not justify a requirement that a party to such a contract shall pay the consideration for performance of it when it has not been performed. The defendant contends that the statute is unconstitutional, and it becomes necessary to consider the question thus presented. The employer is forbidden either to impose a fine or to withhold the wages, or any part of them. If the act went no further than to forbid the imposition of a fine by an employer for imperfect work, it might be sustained as within the legis lative power conferred by the constitution of this commonwealth, in chapter 1, section 1, article 4, which authorizes the general court "to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same." It might well be held that if the legislature should determine it to be for the best interests of the people that a certain class of employees should not be permitted to subject themselves to an arbitrary imposition of a fine or penalty by their employer, it might pass a law to that effect. But when the attempt is to compel payment under a contract of the price for good work when only inferior work is done, a different question is presented. There are certain fundamental rights of every citizen which are recognized in the organic law of all our free American states. A statute which violates any of these rights is unconstitutional and void, even though the enactment of it is not expressly forbidden. Article 1 of the declaration of rights in the constitution of Massachusetts enumerates among the |