Holmes v. Adkins

Perkins, J.

James S. Holmes, by his next friend, Squire W. Robinson, brought an action in the Decatur Circuit Coui’t against Bradley Adkins. Judgment was given in that Court against the infant for costs. This is insisted upon as error.

The authorities are not uniform upon this point. Reeve, in his “Domestic Relations,” says: “A guardian and prochein ami are liable for costs of suit, in case the infant fails in the action, and execution issues against them; but, if their conduct were proper in bringing the suit, they will be refunded their costs, out of the infant’s property,” otherwise not. “There seems to be a diversity of opinion, whether the successful defendant may not elect to take execution either against the infant or his guardian. I take it that the better opinion is, that no execution for cost, can issue against an infant.” P. 265. In a note to the above, in the edition of said work, of 1840, the editor adds: “ It is said in Bacon’s Abridgement, Tit. Infancy, K, that the infant is not liable to costs, but the prochein ami is ; and if he refuse to pay them on demand, the Court will grant an attachment against him.” In Smith v. Floyd, 1 Pick. 275 , the Court say, “the English cases upon this subject are not very clear;” and in Massachusets and Connecticut, judgments are rendered against infants for costs, and prochein amis are held only collaterally liable as sureties. Execution goes, in the first instance, against the infant. See the authorities above cited.

In this state, it has already been decided that an infant *399 plaintiff is not liable to costs. Bouche v. Ryan, 3 Blackf. 472 , and see 1 Swann’s Pr. 56; and our statute provides that a prochein ami shall be. R. S., p. 679, s. 58. Neither the decision above cited, nor the statute, however, determine the manner in which the prochein ami shall be made liable; but it seems to us, that the least troublesome and expensive mode will be for the Court to render its judgment in such manner, that it shall be collectable in the first instance, by execution, from the prochein ami.

J. Robinson, for the plaintiff. A. Davison, for the defendant.

It is said that we should presume that the infant had arrived at majority before the entry of the judgment against him. We think not. Theprochien ami’s name is still continued in the proceedings. Had the infant become of age, the fact should have been entered upon the record at the happening of the event, and the cause afterwards been conducted by the plaintiff or his attorney, without the use of the name of the next friend.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.