
    GRANTMAN a. THEALL.
    
      Supreme Court, Seventh District;
    
    
      General Term, March, 1865.
    Guardian ad Litem.—Security for Costs.
    A defendant sued by an.infant plaintiff who appears by a guardian ad litem, is not . entitled to require the guardian to give security for costs.
    The provisions of the Revised Statutes requiring the next friend of an infant plaintiff to give security for costs, do not apply to a guardian ad litem for an infant plaintiff, appointed under the provisions of the Code of Procedure.
    
    ' - Appeal from an order vacating an order requiring security for costs. i ,,
    The plaintiff in this action was an infant, appearing by John Grantman, his guardian ad litem, appointed under the provisions of the Code of Procedure.
    On the 9th of February last, the defendant presented to Mr. Justice E, D. Smith, at chambers, an affidavit, stating among other things that the plaintiff was an infant, and that his guardian was irresponsible, and that costs coaid not be collected of him ; and thereupon the justice granted an alternative order requiring the plaintiff to file security for costs. On the 13th of February, both parties having appeared before the justice,'and having been heard by him, he made an order vacating the order granted on the 9th, and from the order last made the defendant now appealed.
    
      
       It is generally agreed that the provisions of the Revised Statutes on the subject of security for costs, arc not repealed by the Code of Procedure. The extent to which the case in the text goes, is to hold that the part of those provisions which relate to the next friend of an infant, is not applicable to a guardian of an infant plaintiff under the Code. (Compare Rutter a. Puckhoffer, 9 Bosw., 639.)
      It is to be observed, however, that the court have power to require security for costs, in their discretion, independent of the authority given by statute-(People a. Oneida C. P., 18 Ward, 652; Swift a. Collins, 1 Den., 659 ; Dyer a. Dunivan, 3 How. Pr., 135.) It is a common-law power akin to that which the courts exercise in staying proceedings in a second suit, until costs of a former suit on the same subject shall have been paid. (Compare Jackson a. Miller, 3 Cow., 57 ; Jackson a. Edwards, 1 Ib., 138.)
      It is undoubtedly a very common practice to deny applications for security upon the ground that a case within the statute is not made out; but it may very well be that the court have power to require it in their discretion, and in a proper case would do so. (Compare, further, Fulton a. Rosevelt, 1 Paige, 178; Tenbroeck a. Reynolds, 13 How. Pr., 462.)
    
   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.

James C. Smith, J. (dissenting).

The Revised Statutes provide (2 Rev. Stat., 620, § 1, subd. 5), that when a suit shall be •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 costs. The only question presented' by the appeal is, whether this provision is applicable to the case of an infant suing by guardian, as provided by the Code of Procedure (§§ 115, 116). The plaintiff insists that, as before the Code the provision referred to applied only to cases where a next friend was required to be appointed (2 Rev. Stat., 446, § 2, 3 ed.; 4 How. Pr., 93), it is abrogated by the Code, which expressly provides that when an infant is a party he shall appear by guardian (§§ 468, 469). I have attentively considered the argument submitted by the plaintiff’s counsel, but it has failed to convince me that the Legislature, in directing that infants shall in all cases appear by guardian, intended thereby to relieve a sole infant plaintiff from the requirement of the statute to file security for costs.

Obviously, one object of the Code in this change, if not the only one, was to dispensé- with the terms “ next friend” and “prcrchein ami,” and to apply a uniform term of designation to the person by whom an infant may appear in an action, whether such infant is plaintiff or defendant, sole party or joined with others. But notwithstanding the change of name, the duties and responsibilities of such person, towards the infant at least, remain the same as formerly ; he is to the infant plaintiff precisely what a “ next friend” was before the Code. Not only is this true of his liabilities at common law, but also of those imposed by statute. The Revised Statutes provide that in certain cases the next friend shall, if required by the officer to whom application is made for his appointment, execute a bond to the infant, conditioned to account to him for all moneys recovered in the suit. (2 Rev. Stat., 446, 3 ed., §§ 5, 6, 7.) I apprehend this provision is still in forpe, and applies to the guardian of an infant plaintiff, appointed as provided by the Code.

Yet, if the position of the plaintiff’s counsel is correct, this-provision, which was intended solely for the benefit of the infant, is also repealed by the change of name. I do not think the Legislature so intended.

If, then, the legislature, by substituting the term guardian for that of next friend, have not discarded any former rule designed for the protection of the infant, what reason is there for supposing that they intended to abrogate the wholesome statute requiring security for the costs of the defendant'( They have not done so in express terms; there was no necessity of resorting to doubtful language, and a repeal by implication is not to be favored^ The plaintiff’s counsel suggests, that the words guardian” and “ next friend” or “proohein ami” have an ancient, fixed, and technical meaning, and were never synonymous, and the Legislature must be understood to have employed them in their technical sense. In fact, however, they have not a well-defined, distinct, and technical meaning. Originally, at common law, the guardian of the infant was the person to prosecute as well as defend suits in his behalf. But as guardians were sometimes themselves the very persons who disturbed and injured the infants in their rights, the Legislature at length interposed, and by statute (1 Westm., ch. 48) enacted, “ that if an infant be eloigned or disturbed by his guardian or feofee, or any other, whereby he cannot prosecute his assize, any one of his nearest friends who pleases may sue for him.” Afterwards, by the statute of 2 Westm., chap. 15, a general privilege was allowed in all cases for minors to sue by their next friend, who was to be admitted for that purpose. (2 Sellon’s Pr., 64.) In the books, the names of guardians and prochein ami are oftentimes taken the one for the other, because it frequently happens that they used to be one and the same, as the guardian in socage was also proehem ami, &c. (Ib.) After the statute of 2 Westm., it seems to have been the rule that an infant shall sue by proeheim, ami and defend by guardian ; but even then the distinction was one of terms merely, for as well the guardian as the prochein ami could only be admitted on proper petition and application to the court; and any person who, as friend to the infant, was willing to prosecute or defend for him, was competent to be so admitted, (Ib.) It is difficult, therefore, to discover any substantial difference in the meaning of the terms, which furnishes a reason for requiring an infant plaintiff to give security for the defendant’s costs when he appears by next friend, and relieving him from that requirement when he appears by guardian.

The plaintiff’s counsel draws another argument from the fact that the Code of 1848 did not make guardians liable for costs, and the Legislature supplied the omission in 1849 by section 316 of the Code. It is argued that, as there was then a statute in force making the next friend liable (2 Rev. Stat., 446, § 2), the legislation of 1849 would have been unnecessary, if next friend and guardian were considered the same thing. But by a similar argument, the provision of the Eevised Statutes last above referred to might be shown to have beep unnecessary, since at common law the next friend was liable for costs. (Wille’s R., 190; 11 Wend., 164). The answer is, that the statute was declaratory merely (Revisors’ notes, 5 Rev. Stat., Edm. ed., 479); and so is section 316 of the Code, not only in making the person by whom an infant plaintiff sues liable for costs, but also in subjecting him to attachment. (2 Sell. Pr., 67 ; Tidd’s Pr., 72).

• It is also argued by the plaintiff’s counsel, that if security can be required in this case, the attorney is liable for costs, if it is not given, under section 7 (2 Rev. Stat., 620); and as that section did not apply to suits in the Court of Chancery (9 Paige, 381), this court must either reverse the rule of chancery and extend the statute to equitable as well as legal actions, or else the liability of the attorney must depend on the nature of the suit. It is unnecessary now to consider the question whether, under our present statutes, the liability of the attorney exists in all cases, or only in actions of a legal nature, as that question is not before us; but it is enough to say that no practical difficulty and no injustice would result from holding that it exists in all legal actions at least, and hence the argument does not appear to be of much weight in the present •case.

I am of opinion that the order appealed from should be reversed.

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