Bonett ex rel. Bonett v. Stowell

Kellogg, J. The plaintiff, being an infant, commenced and prosecuted this suit by his father as his natural guardian. On trial the •wife of this guardian was offered, and, against the objection of the defendant, was allowed to testify, as a witness in support of the action. The sole question in the case is, was she a competent witness for the plaintiff? If her husband’s relation to the suit was such as to make him a party to it, she was incompetent. Cram, Adm’r, v. Cram, 33 Vt. 15. Judge Reeye, in his treatise on Domestic Relations, p. 265, says that the better opinion is that no execution for costs can issue against an infant, for costs came in place of the common law amercement pro falso clamore, and the infant could not be subject to an amercement, and, of course, could not be liable for its substitute. Finley v. Jowle, 13 East, 6, recognizes the rule that an infant plaintiff is not liable to costs, though in that case it was held that the infant, having concealed his infancy and prosecuted the suit without a prochein ami or guardian, was not entitled, when taken in execution, to be relieved or discharged out of custody. It has always been the rule that a recovery for costs, where an infant plaintiff fails in the action, is against the guardian or prochein ami who promotes or prosecutes the suit, and not against the infant. In such a case, the guardian or prochein ami is considered to undertake the conduct of the action at his own personal risk in respect to costs, and he becomes liable for the costs accordingly ; though, if his conduct was proper in bringing and conducting the suit, the infant’s property would ultimately be [260] made liable to refund the costs. The appointment of a guardian ad litem or proehein ami may be revoked by the court, on cause shown, on the application either of the infant or the adverse party. On the infant coming of age, the authority of the guardian or proehein ami ceases, and the infant may remove him and appoint an attorney to continue the action. 2 Chitty’s Archbold’s Pr., (9th edit.,) 1167, ei seq. In this case the guardian was not a party to the cause of action which was in litigation, but was merely the manager and conductor of the suit for the infant, who was the real party, and for whose sole benefit a recovery for damages would enure. In Brown v. Hull, 16 Vt. 673, it was held that when an infant commences an action in the name of his next friend, the person so named as next friend is not to be regarded for any purpose as a party to the suit. The rule must be the same in the ease of a guardian as in case of a proehein ami; and, as the guardian in this case was not a party to the subject matter of the litigation, we think that he was not a party to the suit in such a sense as would exclude his wife from testifying as a witness on the trial. Judgment of the county court for the plaintiff affirmed.