at the commencement of his suit, shall be admitted, by the discretion of the judge or judges where the action is pursued, to have his process and counsel of charity, without paying money or fee for the same, shall not be compelled to pay any costs by virtue of that statute, but shall offer other punishment, as by the discretion of the justices before whom the suit shall depend, shall be thought reasonable." It has been said, that if a pauper be nonsuited, he shall pay costs, or be whipped ;(f) but this punishment does not appear to have been ever inflicted.(g) If the pauper give notice of trial, and do not proceed, or be otherwise guilty of improper conduct, the court will order him to be dispaupered ; (h) but until this be done, they will not make any rule about costs.(2) And unless the pauper's conduct appear to have been vexatious, the court will not stay the proceedings in a second action, until the costs are paid of a nonsuit in a prior one, for the same cause; (k) nor, if the pauper should succeed in the second action,

will they deduct the costs of the first, out of those recovered in [*99] the second. (7) In a second ejectment by a *pauper, the court refused to grant a rule for staying the proceedings, until the costs were paid of a prior ejectment for the same cause :(a) but it was admitted, that he would not in such second action be allowed to sue in forma pauperis. (a) And where an order was made pendente lite, admitting the plaintiff to prosecute his action in formâ pauperis, and an application by the defendant for security for, and taxation of the costs previously incurred, was not made till nearly two years afterwards; the court of Exchequer refused the application, and allowed a retrospective operation to the order.(b) If a pauper be admitted to defend a suit in Chancery, in formâ pauperis, his solicitor can only recover of him money actually paid out of pocket, for the defence of the suit.(c) And though a pauper be not liable to pay costs, yet he is entitled to receive them from his adversary.(d)

An infant, or person under the age of twenty-one years, not being capable of appointing an attorney, must sue by his prochein amy or guardian,(e)[▲] unless where he sues as co-executor with others, in which case it is holden that the executors of full age may appoint an attorney for themselves and the infant, as they make together but one representative.(f)[B] And

(g) Id. ibid.

(f) 1 Sid. 261 2 Salk. 506. 7 Mod. 114. (h) 2 Lil. Pr. 633. 2 Salk. 506. 1 Str. 420. 2 Str. 983, 1122. 3 Wils. 24. 1 Bos. & Pul. 40. 6 East, 505. 2 Smith R. 676, S. C. (i) 2 Str. 878, 983. 3 Wils. 24. but see Cas. Pr. C. P. 47. Pr. Reg.

(k) 2 Str. 878, 1121. 3 Wils. 24.

Durnf. & East, 511,

(Z) 2 Str. 891.

1 Bos. & Pul. 40. 6 East, 505. 2 Smith R. 676, S. C., 405, S. C. 1 Str. 420, semb. contra.

Hutton v. Colboys, É. 35 Geo. III. K. B., but see 2

(a) Goodtitle v. Mayo, H. 29 Geo. III. K. B., and see 2 Str. 1121.

(b) M'Clel. & Y. 282.

(d) 1 Bos. & Pul. 39.

(c) 1 Car. & P. 533.

(e) Co. Lit. 135, b. 2 Inst. 261, 390, F. N. B. 27, 2 Wms. Saund., 5 Ed. 117, ƒ. (1). f) 2 Wms. Saund. 5 Ed. 212, 13, (6). But see Com. Dig. tit. Pleader, 2 C. I., where it is said, that if several sue jointly, and some are within age, and some of full age, and all appear by attorney, it is no error; for those of full age may make an attorney for all. The authorities cited, however, do not support this doctrine.

See page 101, note [D].

See 2 Troub. & Haley's Pr. 512, 3d Ed.

hence, he cannot be an informer upon a penal statute;(gg) for, by the 18 Eliz. c. 5, § 1, "every informer upon a penal statute must exhibit his suit in proper person, and pursue the same only by himself or his attorney." An infant defendant must in all cases appear and defend by guardian, even where he is sued as co-executor with others: (hh) And common bail cannot be filed for him under the statute, though he be sued jointly with other defendants.(i) If he appear by attorney, it is error; (k)[A] though if an infant plaintiff appear by attorney, it is cured by the statutes of jeofails. (1) It also seems, that in an action against baron and feme, the feme being under age, she ought to appear by guardian.(m)

To constitute a prochein amy or guardian, the person intended, who is usually some near relation, should come with the infant before a judge at his chambers; or else a petition(n) should be presented to the judge on behalf of the infant, stating the nature of the action, [*100 ] and, if for the defendant, that he is advised and believes he has good defence thereto; and praying, in respect of his infancy, that the person intended may be assigned him, as his prochein amy or guardian, to prosecute or defend the action. This petition should be accompanied with an agreement,(a) signifying the assent of the intended prochein amy or guardian, and an affidavit, (b) made by some third person, that the petition and agreement were duly signed. On being applied to in either of these ways, the judge will grant his fiat ; (c) upon which a rule or order should be drawn up, with the clerk of the rules, in the King's Bench, for the admission of the prochein amy or guardian. (d) In the Common Pleas, the order for the admission is made by the judge, and entered by the prothonotaries on their remembrance roll: which admission is either special, to prosecute or defend a particular action, or general, to prosecute or defend all actions whatsoever;(e) though it is said, that, by the practice of the King's Bench, a special admission of a guardian, to appear in one cause, will serve for others.(f) The infant's father is usually appointed his prochein amy: but where the father, being a necessary witness for the infant, cannot be appointed, the court of King's Bench, on motion, will appoint some other person, with the father's consent.(g)

The rule or order for the admission of a prochein amy, should be obtained before declaration, and a copy thereof annexed to it; or the defendant is not compellable to plead :(h) and the attorney for the plaintiff, if required, must give notice to the defendant's attorney, of the place of abode of the prochein amy.(ii) In like manner, the rule or order for the admission of a guardian should be obtained before plea, and a copy of it annexed thereto; for if an infant defendant appear by attorney, though it be in consequence of common process, with a notice requiring him to

(99) Say. Rep. 51.

(i) Bligh v. Minster & others, T. 28 Geo. III. K. B.

(hh) 2 Str. 784.

(*) 8 Co. 58, b. 9 Co. 30, b. 2 Wms. Saund., 5 Ed. 212, (4, 5.) Barnes, 413, 418. 2

[A] See accord Sheppard v. Hibbard, 19 Wend. 96. White v. Albertson, 3 Dev. 241. Hamilton v. Foster, 1 Brevard, 464. Bedell v. Lewis, 4 J. J. Marshall, 452. Nicholson v. Wilson, 13 Geo. Rep. 467.

appear in that manner, the plaintiff may obtain an order for striking out the appearance, and that the defendant appear by guardian within a certain time, being usually four or six days; or, in default thereof, that the plaintiff may be at liberty to name a guardian, to appear and defend for him:(kk) [A] And a similar order may be obtained, where the defendant neglects to appear at all. (1) If a prochein amy or guardian be changed, pending an action, the fact ought to be stated by an entry on the record.(mm)[B]

An infant plaintiff cannot be compelled to give security for costs, on the ground of the insolvency of his prochein amy :(n) and the latter alone

is liable to the payment of costs;(o)[c] and if he refuse to pay [*101] them on demand, he may be proceeded against by attach

ment. (a) Yet, where an infant plaintiff was taken in execution for costs, the court refused to discharge him on motion. (b) And it has been adjudged, that costs are payable by an infant defendant. (c)[D]

(kk) Barnes, 413, 418. 7 Taunt. 488. 1 Moore, 250, S. C., and see 2 Chit. Rep. 22, (a). 3 Bing. 609.

(l) 2 Str. 1076. 2 Wils. 50.

(n) 1 Marsh. 4, and see 2 Chit. Rep. 359.

(mm) 4 Taunt. 765.

(0) Cro. Eliz. 33. 1 Str. 548. 2 Str. 708. And the prochein amy is primâ facie liable to the plaintiff's attorney for his costs, as well as to the defendant. 2 Esp. Rep. 473. (a) Cas. Pr. C. P. 32. Willes, 190. Barnes, 128. (b) 2 Str. 1217. 13 East, 6, and see Barnes, 183. (c) Dyer, 104. 1 Bulst. 189. 2 Str. 1217.

Pr. Reg. 102, S. C.
1 Bos. & Pul. 480.

[A] See 2 Troub. & Haley's Pract. 513, 3d Ed. [B] See Shuttlesmith v. Hughes, 6 Rich. 329. [c] Where an infant suing by his prochein ami recovers a judgment, which is reversed, the judgment and costs shall be against the prochein ami. Yerger v. Stone, 7 Monr. 119. [D] An infant may bring an action on a contract, but he must sue by guardian, or next friend. MGiffin v. Stout, Coxe, 92. Doe v. Brown, 8 Blackf. 443, or he will be nonsuited, at the trial. M Daniel v. Nicholson, 2 Rep. Con. Ct. 344. In Connecticut, in an action by a minor, an express admission of a prochein ami to prosecute seems to be unnecessary; the admission of the prochein ami named in the writ being implied, until disallowed. Judson v. Blanchard, 3 Conn. 579. It is not the province of the court to appoint a guardian or next friend to sue for, but only to defend an infant party. Priest v. Hamilton, 2 Tyler, 49. Nor can an infant appear or plead by attorney. Jeffrey v. Robideaux, 3 Mis. 33. Clark v. Turner, 1 Root, 200. Mockey v. Grey, 2 Johns. 192. And as defendant he must appear by guardian. Knapp v. Crosby, 1 Mass. 479. Miles v. Boyden, 3 Pick. 213. Alderman v. Tirrell, 8 Johns. 418. Bedell v. Lewis, 4 J. J. Marsh. 562. Comstock v. Carr, 6 Wend. 526. Meredith v. Sanders, 2 Bibb, 101. There should be no judgment by default, unless there is a guardian ad litem. Chalfant v. Monroe, 3 Dana, 35. Young v. Whitaker, 1 A. K. Marshall, 398. Rowland v. Cook, lb. 453. If an infant defendant does not appear upon service of the summons, the plaintiff may have a rule to assign a guardian and enter an appearance. Judson v. Storer, 2 South. 544. The power of a next friend commences with the suit, and he can therefore maintain a suit for such causes of action only as may be prosecuted without a previous special demand, unless the defendant has waived the necessity of a demand. Miles v. Boyden, 3 Pick. 213. Brown v. Hull, 16 Verm. 673. The next friend and guardian will be admitted by the court without any other record than a recital in the count. Clark v. Gilmanton, 12 New Hamp. 515. A prochein ami is one admitted by the court to prosecute for an infant, because otherwise the infant might be prejudiced by the refusal or neglect of his guardian. He is but a species of attorney, who may prosecute a right for an infant, but can do nothing to operate to his injury, and therefore cannot release or compromise a suit prosecuted on behalf of a minor. Isaacs v. Boyd, 5 Port. 388. The suit of an infant may be dismissed without the consent of the prochein ami. The court may control him, as well as a guardian ad litem, and should permit or direct what is most for the interest of the infant. Longnecker v. Greenwade, 5 Dana, 516. A judgment irregularly obtained against an infant, is erroneous, and may be set aside, after he has attained full age, on motion and rule; the fact of infancy must be tried in such case per pais, and not by inspection. Haigler v. Way, 2 Rich. 324. It seems, however, that the court is not bound to set aside the judgment, after the infant has attained full age, but may consider lapse of time, the conduct of the

*CHAPTER V.

Of the ORIGINAL WRIT; and PROCESS thereon, previous to the CAPIAS, in the KING'S BENCH and COMMON PLEAS.

AN original writ is a mandatory letter from the king in Chancery, sealed with his great seal;(aa) and, in the King's Bench, may be the means of commencing all personal actions, against every person not being an attorney or officer of the court, or a prisoner in the actual custody of the marshal. Formerly, indeed, it was not usual to proceed in the King's Bench, by original writ, in debt, detinue, or other action of a mere civil nature:(66) but the modern practice is different ;(cc) and, in Lord Mansfield's time, where the defendant pleaded to the jurisdiction, in an action of debt commenced by original writ, the court gave judgment on demurrer for the plaintiff: and declared, that if such a plea should come before them again, they would inquire by whom it was signed. (d) On the other hand, an original writ seems to have been formerly the only way of proceeding against peers, and members of the house of commons; (e) as it is still, against the former,(ƒ) and also against corporations, or hundredors, (g) on the statute 7 & 8 Geo. IV. c. 31; or where, by reason of the defendant's being abroad, or keeping out of the way, he cannot be arrested or served with process.

Another benefit attending this mode of proceeding in the King's Bench is, that after judgment in an action by original, a writ of error will not lie in the Exchequer chamber, where it is often brought for the mere purpose of delay, but only in parliament.(h) The reason is, that at common law, no writ of error lay, except in Parliament, from the judgment of this court; and the statute() which gave a writ of error in the Exchequer chamber, only extends to such actions as are first commenced in the King's Bench: therefore, though a writ of error will lie in the Exchequer chamber, on a judgment by bill, which originates in the King's Bench, yet it is otherwise where the judgment is upon an original writ, which issues out of Chancery, where the action in that case is first commenced.(k)

*But, in order to save the great and unnecessary expense of suing forth special writs in small and trifling suits, it was enacted [*103 ]

(aa) Finch, L. 237. 3 Blac. Com. 273. Steph. Pl. 5.

(bb) 4 Inst. 76. Trye, 55, 77, and see Lord Hale's Treatise, in 1 Harg. Law traets, 360, 362, 364. 2 Blac. Rep. 850. 3 Blac. Com. 42.

(cc) Cas. temp. Hardw. 317.

(d) See also the statute 13 Car. II. stat. 2, c. 2, 8 6, which speaks of actions of debt, &c., depending by original writ in the King's Bench, as well as in the Common Pleas.

(e) Trye, 9, 13. Lil. Ent. 21. 2 H. Blac. 267, 299.

(f) 3 Maule & Sel. 88.

(h) 1 Sid. 424. Trye, 6. 2 H. Blac. 304. (*) Run. Eject. 205, 6. Gilb. K. B. 319.

(g) Trye, 11. Barnes, 415.
() 27 Eliz. c. 8.

defendant, and other circumstances as confirming the judgment, or rendering the interference of the court improper. lb. The proper practice, in such cases, appears to be, on affidavit of the defendant's infancy, to order a rule to show cause, on the return of which the judgment may be set aside, or an issue made up to try the fact of infancy, or such other material fact as the case may present. 16.

by the statute 5 Geo. II. c. 27, § 5, that "no special writ or process should be issued out of any superior court, where the cause of action should not amount to the sum of ten pounds or upwards."(a) And, by the statute 7 & 8 Geo. IV. c. 71,(b) " where the cause of action in any court shall not amount to the sum of twenty pounds, exclusive of any costs, charges and expenses, that may have been incurred, recovered or become chargeable, in or about the suing for or recovering the same, or any part thereof, no special writ or writs, nor any process specially therein expressing the cause or causes of action, shall be sued forth or issued from any court, in order to compel any person or persons to appear thereon in such court; and all proceedings and judgments that shall be had on any such writ or process, shall be, and are thereby declared to be void and of no effect:" But a bailable writ is not necessarily a special writ, within the meaning of the above statutes. (c) It is also a rule of the Court of King's Bench, (d) that "in all actions in which the plaintiff shall proceed against the defendant by special original writ, and shall recover less than the sum of fifty pounds, he shall not, on taxing costs, be allowed any more or other costs, than he would have been entitled to, in case he had proceeded by bill; except in such actions, in which he could not proceed by bill, or in which any defendant shall be actually outlawed." But the costs of a special original were allowed, in an action brought on a bond, the penalty of which was more than fifty pounds, though the sum found due was only twenty pounds.(e)

Original writs are calculated for the commencement or removal of actions.(f) And they are either de cursu, or magistralia :(g) the former were framed in the king's court, before the division of it by magna charta, (h) and are to be found in the register of original writs: (i) the latter were made out by the masters in chancery, pursuant to the statute of Westm. 2, (13 Edw. I.) c. 24, by which it is enacted, that "whenever it shall happen in Chancery, that in one case a writ is found, and not in a similar case, falling under the same law, and requiring the like remedy, the clerks of the Chancery shall agree in making a writ, or refer the plaintiffs to the next parliament." Of the register of original writs, upon which Fitzherbert's natura brevium is a comment, it has been said, (kk) that every man who is injured will be sure to find in it a method of relief, exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2, for framing new

writs when wanted, is almost rendered useless by the very great [*104] perfection of the ancient forms. And indeed, says the learned commentator, (a) "I know not whether it is a greater credit to our laws, to have such a provision contained in them, or not to have occasion, or at least very rarely, to use it."

(a) 3 Bur. 1484.

(b) 1, and see stat. 51 Geo. III. c. 124, % 1, continued by 57 Geo. III. c. 101.

(i) 1 Inst. 16, b. 54, b. 73, b. Gilb. C. P. 4, 5. (kk) 3 Blac. Com. 183, 4.

(d) R. M. 23 Geo. III. K. B.
(f) Trye, 1, 12, 93.

407, 670. 7 Co. 4, a. 8 Co. 48, 9.

3 Blac. Com. 183.

(a) 3 Blac. Com. 184, and see 1 Madd. Chan. 5, &c. as to the Chancellor's common law authority in ordering original writs to be made out by the cursitors.