Crandall v. Slaid

52 Mass. 288

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1846
• Status: Published

Opinion

Wilde, J.

The defendants claim costs against the prochein ami, on the ground that the plaintiff, being an infant, is not liable therefor; and this claim seems to be supported bv the English practice. But our practice has been different, and is conformable to our statutes regulating the recovery of costs. By the Rev. Sts. c. 121, § 1, it is provided that <• in all civil actions, the party prevailing shall recover his costs against the other party, except in cases in which a different provision is made by law.” And so was the law previously to the revised statutes. By St. 1784, c. 28, § 9, it was provided that t! in all actions, as well those of qui tarn as others, the party prevailing shall be entitled to his legal costs against the other.” According to the language and clear meaning of this statute, the court held, in Smith v. Floyd, 1 Pick. 275, that an infant plaintiff was liable to costs. And we can have no doubt of the correctness of that decision. The statute would admit of no other construction. The infant was plaintiff, and was therefore liable by the express language of the statute. It was said, in that case, that after judgment against the infant plaintiff, the defendant might proceed against the prochein ami. But he had indorsed the writ, and was liable, not as prochein ami, but as indorser. And in all cases, if the defendant doubts the ability of the infant to pay costs, the . prochein ami may be compelled to indorse the writ, or to procure a sufficient indorser, or to become nonsuit.

It is said in Blood v. Harrington, 8 Pick. 552, that a pro chein ami is answerable for costs. But that dictum is inconsistent with the decision in Smith v. Floyd, and is not supported by any statute on the subject of costs.

Exceptions overruled.