Grantman v. Theall

By. the Court.^*—E. Darwin Smith, J.

In the Revised Statutes (chap. 8, title 2, part 3, marg. p. 445 ; vol. 2 of 3d ed., p. 543), it was provided as follows:

“ § 1. When an infant shall have any right of action,” . . . “he shall be entitled to maintain a suit thereon” ....

“ § 2.Q Before any process shall be issued in the name of an infant, who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as next friend for such infant in such suit, who shall be responsible for the costs thereof.” *’

In title 2 of chapter 10 of the Revised Statutes (vol. 2, marg. p. ,620), it is provided, that, among other cases, “ when a suit shall be commenced in any court,.....in the name of any infant, whose next friend has not given security for costs, the defendant may require such plaintiff to file security” for costs; and also, that when security for costs may be required by the provisions of that title, the plaintiff’s attorney, instituting such suit, shall be liable for costs to an amount not exceeding $100. Section 8 of the same title 2, of chapter 8 (marg. p. 446; 3d ed., vol. 2, p. 542), also provided that “ after the issuing of process against any infant defendant by which he shall have been arrested, the suit shall not 'be any further prosecuted, until a guardian for such infant be appointed.”

It will thus be seen that the Revised Statutes provided, that an infant plaintiff shall sue by a next friend, and that an infant defendant defend by guardian; and such was the practice in this State, under this statute, before the Code of Procedure, and such was the previous rule at common law. In the Code (§ 115), it was provided that “ when an infant is a party, he must appear by guardianand section 316 is as follows: “ When costs are adjndged against an infant plaintiff, the guardian by whom he appeared in the action shall be responsible therefor, and payment thereof may be enforced by attachment.”

The Code thus introduced a new practice. It dispensed with the “next friend” of the common law and of the Eevised Statutes, and substituted in his place a guardian for the infant,, by whom the infant is both to sue, when he is plaintiff, and by whom he is to appear, when sued, as defendant. The provision of the Eevised Statutes requiring the next friend of an infant plaintiff to give security for costs, does not apply to the guardian of the Code. The guardian is liable for costs, the payment of which-, as above stated, may be enforced by attachment. The Legislature made a distinction between the next friend and the guardian of an infant, in the Revised Statutes, and also in the Code; for in section 114 of the Code, in the amendment of 1857, it is provided that a married woman (who in the amendment of 1851, and previously at common law, was required in most cases to sue by a next friend), “ need in no case prosecute or defend by guardian or next friend,” and there was ever a distinction between the name and office of next friend (prochein ami) and guardian, at common law. I cannot see, therefore, how we can apply the provision of the Eevised Statutes, requiring the next friend of an infant plaintiff to give security for costs, to the guardian of the Code. It is not necessary to say that this provision is repealed by implication. It does not in terms apply to the guardian. The Legislature has not so applied it, and we are simply to decide that there is no express provision in the statute requiring a guardian, as such, and who sues for an infant plaintiff by that name—a name well known and recognized at law—to give security for costs.

This question was so decided in this court, at an early period under the Code (March term, 1851), in the suit of Catharine Vernon, by her guardian, against William C. Butler. In that case, costs being awarded against the plaintiff, an order was made at special term that the attorney pay the same; no security for costs having been filed by the guardian. This order was reversed at the general term, on the ground, as we ■ understand, and as we must hold in this case, that the guardian was not bound under the Code to give security for costs, and that the provision of the Revised Statutes requiring the next friend of an infant to give security for costs, did not apply to, such a guardian.

I think the Legislature intended to introduce a new rule and a new practice on the subject, and that the plaintiff was not bound to give security for costs, and that the order of the judge below should, therefore, be affirmed.

Johnson, P. J., concurred.

* Present, Johnson, P. J., James C. Smith and E. D. Smith, JJ.