Hulburt v. Newell

By 2 R. S. 446, § 2, before any process can be issued in the name of an infant who is sole plaintiff, some competent and responsible person must be appointed to appear as next friend in the suit, who shall be responsible for the costs thereof. Where the suit is commenced 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 the payment of the costs that may be incurred: In such case, where the defendant at the commencement of the suit shall be entitled to require security for costs, the attorney shall be bable for snob costs not exceeding $100, whether security has been demanded or not. (2 R. S. 620, §1-7.)

From the plain reading and intent of the statute, a next friend is only necessary where an infant is sole plaintiff, and it is only in such cases that such next friend is chargeable with the costs of the suit. The attorney is only liable where the defendant could have required security for costs to be filed—and this can he done only where the suit has been commenced in the name of an infant, and not where an infant is only named as one of several plaintiffs. A suit cannot he said to have been commenced in the name of one of several plaintiffs. It is then a suit in *94their joint names, and not in the name of either one of the parties who unite in the prosecution. Here the suit was in the name of the husband and wife, and not in that of the wife alone, and no security could have been required at the commencement of the suit, or at any other time. The husband, being an adult, was hable for the whole costs, at all events, in case of defeat. This makes the statute harmonious in all its provisions, on the subject of suits brought by infants. Ho next friend is necessary, except where the infant is sole plaintiff, and then the liability for costs is imposed. Hor can the defendants require security for costs to be filed in any other case. The suit must be commenced in the name of the infant. So that, whether we adopt what writers have denominated a rigorous construction, by adhering to the sense of the words of the statute, or that tempered by the equity and spirit of the law, the attorney is not responsible.

Motion denied, but without costs.