Grantman v. Thrall , 31 How. Pr. 464 ( 1866 )

By the court, Johnson, J.

This court decided this precise question at the last December general term, in the case of Gardner, Guardian agt. Joel. In that case the attachment was granted against the guardian in a case like this, the guardian showing by affidavit, as in this case, his entire want of property subject to execution, and his utter inability, pecuniarily, to pay the costs. That order was affirmed on appeal to the general term, the court holding, both at special and general term, that the facts set out in the affidavit of the guardian, of his want of property, was no answer to the application for the attachment. The Code (§ 316) makes the guardian of an infant, plaintiff, responsible for the costs of the action when they are adjudged against such infant, and provides that “ payment thereof may be enforced by attachment.” That this means a process in the nature of a ca. sa., admits, I think, of no doubt. It is so understood in all the books of practice, and such is its plain meaning in legal parlance. This, I think, is plainly a remedy given to the defendant in the action to enforce payment of his costs when he becomes entitled to costs in such an action. It is a process given to the party to enforce a liability in his favor which the statute imposes, not conditionally, but absolutely and imperatively. I do not see that, strictly, it is necessary for the defendant in such a case to first issue his execution against the infant, in order to fasten the liability upon the guardian, and entitle the defendant to his attachment, though I should think that the more reasonable and better practice (2 N. Y. Pr. 418). Nor do I see that the question of contempt of court, arises in the case. It is simply a liability which the statute creates, and to enforce payment of which it gives this process. It does not depend upon any order of the court, but results simply from the adjudication against the infant plaintiff. Under the Revised Statutes the next friend of an infant plaintiff was made responsible for costs, but no process was given to the party to enforce payment as now (2 R. S. 446, § 2). The mode of enforcing payment was left to the practice of the courts. That mode, according to the course of the practice, was to first bring the party into contempt, and then apply for an attachment. But now both the measure of liability and means of enforcement are prescribed by law, and I do not see how the court can refuse to a party the process which the law in terms gives him. The word may in statutes has always been held to be imperative, and equivalent to must or shall, whenever the public or third persons have a claim de jure, that the power should be exercised. (Smith’s Com. 727; The Newburgh Turnpike Co. agt. Miller, 5 Johns. Ch. R. 112.) Manifestly, this is a right given to the party, and not a mere discretionary power conferred upon the court. In this view the provision is in no respect in conflict with the provisions of the act of 1847 (Sess. Laws of 1847, chap. 390, § 2), which is, that “ no person shall be imprisoned for contempt of court in not paying costs.” But, if it is, the effect of this provision of the Code, enacted several years afterwards, would be to take the particular case out of the general provision. It is clear enough that the poverty of the guardian is no defense to the motion.

The Code does not make either his liability for costs, or the defendant’s right to the attachment, depend- upon any such conditions; and I have no doubt that one object the legislature had in view in giving this remedy, was to protect persons from being vexed and harrassed by actions brought in the name of infants by irresponsible guardians. The granting of the process in the nature of a fieri facias, was a vain thing, as the guardian shows by his affidavit that he has not now, and had not when the action was commenced, any property to which it could possibly attach. I am of the opinion, therefore, that the application for the attachment in the nature of a ca. sa. was improperly denied, and that the order should be reversed, and the order ior the attachment granted, with costs.