Leavitt v. City of Bangor , 41 Me. 458 ( 1856 )

May, J.

One question presented in this case is, whether the wife of the prochein ami, she being the mother of the plaintiff, who is an infant, was a competent witness when offered for the plaintiff in this suit; and this question is to be determined by the law as it stood at the time of the trial, which was before the passage of the statute of 1856, c. 266, making parties competent witnesses in civil suits. By the common law, a party, as a general rule, is excluded from testifying in his own cause, and the wife of such party is alike inadmissible.

A p-ochein ami, or next friend, is not necessarily one of kin, but may be “any person who will undertake the infant’s causeand according to the theory of the law he is appointed by the Court. Such power of appointment is recognized as existing in any court of common law by our statute. R. S., e. 110, § 33. It has been decided in Massachusetts that such courts may not only appoint, but they have authority to revoke any appointment, even during the progress of a suit. Such authority, both for appointment and revocation, seems to be necessary for the protection of the infant, as he will be bound by the judgment which may be rendered. Guild v. Cranston, 8 Cush. 506.

The relation of a p-ochein ami to the infant, is similar to that of a guardian ad litem to his ward; and no reason is perceived why the recital of the name of the former in the writ, as the next friend of the infant plaintiff, should make him any more a party to the suit, than that the recital of the name of the latter, as guardian ad litem for minor defendants, in the pleadings, or its entry upon the docket, should make him a party to such suit. Both are mere agents, appointed either theoretically or in fact by the court, to conduct the business of the suit for the real parties whom they represent. In all such cases, the infant is the real party whose rights are bound by the judgment; and whatever may have been or now is the English law or practice respecting an infant’s liability to costs, it is provided by our statutes, (R. S., c. 115, § 56,) that “in all actions the party prevailing shall recover his costsand there can be no doubt that such costs are to be recovered of the other party in the suit.

In Massachusetts, it has been held that an infant plaintiff, suing by pochein ami, is alone. liable as party for the costs. Smith v. Floyd, 1 Pick. 275. In this case, the court say that, after judgment against the infant plaintiff, the defendant can proceed against the pochein ami for the costs; but this appears to have been upon tbe ground of his being the indorser upon the writ, and not because he was the actual party. At the time of this decision, the statutes of that State required all writs to be indorsed; and it had- been held in the case of Crossen, v. Dryer, 17 Mass. 222, that a prochein ami was a plaintiff within the meaning of the statute of 1784, c. 28, § 11, which required the plaintiff or his agent or attorney, to indorse or cause to be indorsed an original writ, which indorsement created a liability for costs. Subsequently, after the passage of the R. S., c. 90, § 10, which required no plaintiff, who was an inhabitant of that State, to indorse his writ or procure an indorse!’, except by special order of court, the same Opurt held that a prochein ami, as such, was not a party so as to be liable to costs. Crandall v. Slaid & ux., 11 Met. 288.

It is said, in the opinion of the Court in the case last cited, that the dictum in Blood v. Harrington, 8 Pick. 552, “ that a prochein ami is answerable for costs,” “ is inconsistent with the decision in Smith v. Floyd,” before cited, “ and is not supported by any statute on the subject of costs.” The statutes of this State in relation to costs, will be found upon examination to be substantially like those of Massachusetts. We think, therefore, that the witness offered ought not to have been excluded on the ground of any interest in her husband, and that he was not a party of record in any such sense as to render him incompetent to testify in the suit. We do not mean to say that a prochein ami may not be regarded as a party for certain purposes, such as receiving notices to take depositions and the like, but only that he is not a party in such a sense, as under our statutes, at the time of the trial, would make him responsible for costs.

The exceptions, so far as they relate to the exclusion of the witness, are sustained, the verdict is set aside, and a new trial granted.

Tenney, C. J., and Hathaway, Appleton, and Goodenow, J. J., concurred.