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tions of the common law; and the better opinion, perhaps, is, that after a prochein ami is appointed for the plaintiff, judgment may go against him for costs. Even at common law, where an infant plaintiff was taken in execution, and committed to jail for costs, the court refused to grant him summary relief, and held that his only remedy was by writ of error.(e) Executors or administrators are generally not liable for costs upon judgment against them, either at the common law, or under our general statute concerning costs ;(w) but this privilege is not allowed them in a justice's court, whether plaintiffs or defendants.(x) So in proceeding to judgment against joint debtors, one of whom is an infant, no guardian. need be appointed. The words of the statute concerning joint debtors are broad and unqualified, and no exception is made in favor of infants. (y) The proceedings in a justice's court are to be regulated entirely by the act conferring its jurisdiction, and where this statute speaks, it can borrow nothing by implication from the common law, or from other statutes ;(z) and the supreme court decided that, in all suits brought under the old ten pound act, costs were given, of course, where a debt or damages were recovered. (a) There is, therefore, little doubt that in a justice's court, judgment may go against an infant plaintiff for costs as well as damages; and that the defendant may elect, either to collect them of the infant on execution, or pursue the prochein ami, when he becomes regularly bound to pay the same, as he might do any other collateral security. But the rule is otherwise in courts of record, where if an infant plaintiff appear by attorney, and judgment be rendered against him for costs, on a writ of error and assignment of infancy by him as error in fact, the judgment will be reversed with costs. (b) The prochien ami of the plaintiff is liable to the justice for his fees, to the same extent as a plaintiff would be liable, in ordinary cases, (c) and an action of assumpsit will lie for them. (d)

If an infant plaintiff appear by attorney or in person, and judgment be for him, it will not be reversed for this reason, as it will when against him.(e) But this is otherwise of an infant defendant. He must have a guardian in all cases, or he may get rid of a judgment in his own favor, upon certiorari, if the ceremony of this appointment be omitted.(ƒ)

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The prochein ami must be appointed before issuing the process; (g) and if a suit should be commenced by an infant plaintiff, without the previous appointment of a prochein ami, and this should be pleaded in abatement, the justice would be bound to dismiss the suit, (but without costs against either party ;) for it would then be too late to make the appointment, unless by consent of the defendant.() The infant should go before the justice with some responsible person who will consent to act as his next friend; and on application and consent of the individual, which consent must be in writing, the justice will appoint him, and issue the process. The mere declaration of the plaintiff that he is an infant, is enough to authorize the appointment of a prochein ami; and if it should turn out that he was of full age, still there would be no irregularity, for the justice's decision as to that matter would be held conclusive. (i) The plaintiff has a right to insist, and indeed should insist, for his own safety, upon the appointment of a guardian for an infant defendant, unless the defendant himself request it. Upon the plaintiff's motion, therefore, in default of the defendant's nominating a guardian, the justice should order the defendant to appear with his guardian, and have him duly appointed forthwith; and unless he do so, the justice may appoint any other person for him, who will undertake the trust, to be named by himself or the plaintiff. (j) The same course should be pursued where the defendant makes default upon a summons or attachment, i. e. the plaintiff must himself in such case see that some person is appointed guardian, and the justice ought, in these cases, to appoint the nominee of the plaintiff, unless he have some one better at hand, who will undertake it.(k) If the defendant have not appeared at all, of course, no notice to him to appoint a guardian is necessary. The prochein ami must be appointed before the process issues, and the defendant's guardian should be appointed on the return of the process, and before any further proceedings are had; and if the defendant appear in person or by attorney, the plaintiff should object to such appearance, and proceed to have a guardian appointed as above directed.(l)

The statute, which requires that an infant shall appear by next friend or guardian, does not prevent the employment of an attorney to conduct the suit. The statute was not intended to deprive the infant of the professional aid of an attorney.(m)

(g) 2 R. S. 164, § 40. 12 Wen. 191. Saund. 117, f. n. (1). Str. 1076. 2 Wils. (h) Vid. id.

(i) Vid. 3 John. 437.

(j) Barnes, 418, and vid. id. 413. 2

50. 7 Taunt. 488.

(k) Id.

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SECTION V.

HOW A PROCHEIN AMI, OR NEXT FRIEND OF PLAINTIFF, IS TO BE APPOINTED.

No process shall be issued for an infant plaintiff, nor shall any issue joined by such plaintiff' without process, be heard, until a next friend for such plaintiff shall have been appointed. Whenever requested, the justice shall appoint some suitable person who will consent thereto in writing, to be named by such plaintiff, to act as his next friend in such suit; who shall be responsible for the costs therein.(n) The names of guardian, next friend, and prochein ami, are often used indiscriminately, being considered synonymous words. The term next friend is used in the statute, which is nothing more than a translation of the French words prochein ami—a legal expression still generally used in the books. The term guardian is applied to one who is appointed to appear and defend for an infant defendant; and the statute provides, that after the service and return of process against an infant defendant, the suit shall not be any further prosecuted, until a guardian for such defendant be appointed. Upon the request of such defendant, the justice shall appoint some person who will consent thereto in writing, to be the guardian of the defendant in the defence of the suit. And if the defendant shall not appear on the return day of such process; or if he neglect or refuse to nominate such guardian, the justice may, on the motion of the plaintiff, appoint any discreet person as such guardian. (0) The consent of the next friend or guardian must be filed with the justice, and the guardian is not liable for costs.(p)

It should be particularly noticed, that if the suit be commenced, in favor of an infant plaintiff, by process, that a prochein ami should be first appointed, that is, before the process issues; if commenced by the joining of issue without process, the appointment may be made at any time before trial. The consent of the prochein ami, or guardian, should be in writing, except in one case, and that is, where a guardian for the defendant is appointed on motion of the plaintiff. In this case, it is not necessary that he should consent in writing, although it would be well for him to do so. A simple appointment by the justice would probably be sufficient,

(n) 2 R. S. 164, § 40. (0) Id. § 42.

(p) Id. § 43.

which should be noted on his docket. Some by-stander, to be named by the plaintiff, is generally selected. Neither does the statute require that the appointment of prochein ami or guardian should be in writing, but this is ordinarily done by an entry at the foot of the written consent, as well as on the docket.

The person appearing, either for the plaintiff or defendant, must be appointed for that particular purpose by the magistrate; and a parent, guardian in socage, guardian by testament, or a general guardian appointed by the chancellor or surrogate, have no more right than any other person to appear and prosecute, or defend for the infant, until received and empowered by the justice in due form. But they ought, without doubt, in general, to be received and appointed in preference to others, provided they are willing to serve, and have no interest adverse to that of the infant. In some instances, however, this would be highly improper; for it is often the case, that an infant sues his own guardian while yet under age. In such case, or where the guardian's interest is adverse to that of the infant, he ought not to be appointed, or suffered to intermeddle at all in the affair depending. If it turn out in the course of the trial, that the prochein ami, or guardian for the plaintiff, is a material witness in his favor, the justice may discharge him, on some competent person taking his place and entering into the same engagement; and this he ought to do, in order to restore the competency of the witness. (q) The defendant's guardian may, of course, be a witness for him, without a discharge, for he is not liable even for costs, and therefore has no possible interest.

As the prochein ami is to appointed, except in the one case mentioned in the statute, before process issued, the consent should not, for the reasons mentioned ante, p. 467, be entitled in the suit. If appointed after issue joined without process, it should regularly be entitled in

the cause.

FORM OF CONSENT AND APPOINTMENT OF NEXT FRIEND FOR AN INFANT

PLAINTIFF.(r)

SARATOGA COUNTY, ss. 1 hereby consent to be the next friend of JAMES JACKSON, an infant, in a suit against RICHARD ROE; and hereby, for value received, promise and agree with the said RICHARD ROE, to

(q) 1 Ves. jr. 142. 6 id. 145. 12 id. 493.

(r) 2 R. S. 164, § 40. Vid. Penning. on Small Causes, 204.

pay him such costs as he shall recover against the said JAMES JACKSON, by judgment in the said suit. September 1st, 1840.

JOHN STYLES.

The said JOHN STYLES is accordingly appointed. September 1st,

1840.

RANSOM COOK, Justice of the Peace.

If the prochein ami be appointed in a suit instituted by the joining of issue without process, the consent should, as before remarked, be entitled in the suit. In that case, it may be in this form:

FORM OF CONSENT OF NEXT FRIEND FOR AN INFANT PLAINTIFF, WHERE THE APPOINTMENT IS MADE AFTER ISSUE JOINED.

JUSTICE'S COURT.

James Jackson

V.

Richard Roe.

Before RANSOM COOK, Esq. Justice of the Peace.

SARATOGA COUNTY, ss. I hereby consent to be the next friend of JAMES JACKSON, the plaintiff in the above entitled cause, an infant; and hereby, for value received, &c. (as in the foregoing form.)

Should the promise to pay costs be omitted, still the consent and appointment would be valid, for the purpose of preventing all error in the the proceedings; and it is, of course, a matter of discretion at least, in the justice, whether he will require it. I have supposed that the justice has a right to insist on such a clause, both from the language of the statute, and from what was said by Buller, J. in Doe v. Alston, 1 T. R. 491. It would seem, from that case, that the justice has even a right to require surety of the prochein ami, that the defendant's costs will be paid.

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