CHAPTER VI. OF INFANT BEING BOUND BY CONDITIONS ANNEXED TO A It is a rule of law, that whenever an estate or office is granted to an infant, to which there is annexed a condition, if the infant do not a certain thing, he shall forfeit the estate or office, the infant is bound by this condition; but, if the condition had annexed any penalty, other than the forfeiture, the infant would not be bound by this penalty. The grantor may reasonably require that the estate should return to him, if the things are not done, the doing of which constituted the consideration of the grant; but it is not reasonable that he should have the power of inflicting a penalty on infants, whose indiscretion might, in such case, destroy their privilege. (a) Whenever there is a condition implied by law, that requires fidelity or skill, an infant is bound by it. () This is the case in the grant of all offices. If, then, an infant have the grant of an office, and do not execute it with skill or fidelity, he forfeits. his office. If the condition implied by law, which is annexed to an estate, works a forfeiture, when the forfeiture is to arise from some tortious act of the tenant, an infant is as much bound as an adult. For instance, the law declares that tenants who commit waste shall be liable to treble damages, and forfeit their estate. In this case the infant is bound; but in other cases, if there be no tort committed, where the acts of an adult will forfeit his estate, an infant will not. If an adult should alien his life estate, or should alien his mortmain, he forfeits his estate; but an infant would not.' (a) Co. Lit., 246. (b) 8 Co., 44; Co. Lit., 253. 1 By the common law, infants were capable of holding such offices as did not concern the administration of justice; but only required skill and dil It is a general rule that an infant shall not be prejudiced by laches. And, therefore, it is, when a stranger dies seized of land belonging to an infant, and the land descends to the heirs of the stranger, the infant's right of entry is not taken away.' Yet there are a variety of exceptions to this rule in the English law, most of which can have no existence in the United States. Where an estate is granted to an infant or his ancestor, and a condition is annexed to the estate, a non-performance of this condition will bar him of a right to the land forever. (a) Infants are bound by the statutes of limitation, unless their rights are especially saved. (b)' An infant can hold no judicial office, from a supposed want of discretion. He can hold a ministerial office, for this can be executed by deputy, unless, for the due performance of it, the (a) Co. Litt., 246. (b) Pre. in Can., 518; Cro. Eliz., 636; Co. Lit., 3. igence in their execution. Bac. abr. tit. Infancy, E. And if any condition annexed to such office was not fulfilled, it was forfeited. 3 Mod. Rep., 224. It was held in Barrett v. Seward, 22 Vt., 176 (POLAND, J, dissenting) that an infant might receive a special deputation from the sheriff, under a statute giving to the sheriff power to depute any proper person to serve a writ, at the risk of the plaintiff, etc. The case was decided upon the ground of the sheriff's liability, under the statute, for all acts of his special deputy, equally and to the same extent that he would be for the acts of his general deputy, and if such deputy was appointed at the request of the plaintiff in the writ, the sheriff would still be liable to the defendant, and to third persons, the same as for the acts of a general deputy. The same result was arrived at in Moore v. Graves, 3 N. H., 408, and upon the same ground. In Harvey v. Hall, 22 Vt., 211, it was decided that an infant could not be specially authorized to serve mesne process by the magistrate signing the same. The case was put upon the ground that in the case of a special authorization by a magistrate, as the infant would not be liable to the defendant for any injury he might sustain, either for misfeasance, or nonfeasance, for a false returu, etc., that there would be no principal to be made liable in these particulars-there being no statute making the magistrate liable, as in the case of a sheriff. 1 Allen v. Sayer, 2 Vern., 368. 2 Havens v. Patterson, 43 N. Y., 218. Tyler on Inf., etc., 168. 3 7 Wait's Act. and Def., 280; Tyler on Inf., etc., 171; Ang. on Lim., § 194. law requires that an oath be administerd to the holder of the office. For this reason, an infant cannot be an attorney. In cases where the office is executed by deputy, the chancellor, the supreme guardian of all infants, appoints the deputy. (a) In cases where an infant may execute an office, he is bound by his official acts, and liable for his defaults; as when an infant jailer suffers an escape, he is liable for the escape. (b)1 An infant cannot execute a power over real estate, which requires any discretion; but if the special manner of executing the power be pointed out in the instrument granting the power, so that no room is left for the exercise of discretion, an infant may execute it. (c) But an infant may execute a general discretionary power over personal estate, if such infant be of sufficient age to bequeath such estate by will. (a) Hob., 325. (b) 5 Co., 17; 3 Mod., 222. (c) 3 Atk., 69; 1 Vern., 303; Pow. on Pow. 1 The statutes of many of the States exclude an infant from holding a civil office; but the doctrine of the common law is, no doubt, correctly stated in the text. See Bac. Abr., tit. Infancy, and cases there cited. The office of a clerk of the peace, being merely ministerial, may be held by him. Crosby v. Hurley, 1 Alcock & Nap., 431. In New York he is incapable of holding any civil office. The People v. Dean., 3 Wend., 438. By the common law, also, he might act as executor, but this right is also taken away by statute in many of the United States. If he be elected constable, and execute process as such, it was held, that he is a trespasser. Green v. Burke, 23 Wend., 490. CHAPTER VII. OF SUING BY GUARDIAN, AND WHEN BY PROCHEIN AMI OF THE LIABILITY OF GUARDIAN AND PROCHEIN AMI FOR COSTS. OF INFANT DEFENDANTS' APPEARANCE BY GUARDIAN. WHEN an action at common law was brought in favor of an infant, he was obliged to sue by guardian; (a) and could not sue in any other way. But, by the statutes of Westminster, he may sue by his prochein ami in certain cases. (b) It is contended by some that he may sue by prochein ami in all cases; but the authorities teach a different doctrine. If it was allowable for an infant to sue by his prochein ami in all cases, he might squander his property in needless suits, in spite of his guardian; (c) and, indeed, it would be wholly destructive of that necessary control of the guardian over the infant, with which the law has invested him. I apprehend the infant can never sue, by prochein ami, against the mind of the guardian. The cases in which an infant sues by prochein ami. are cases of necessity.' When the infant sues his guardian, it must be by prochein ami; and also when he has no guardian; and if his guardian be absent out (a) Roll., 225, 250. (b) Co. Lit., 135; Cro. Car., 86. (c) Hut., 92; Cro. Jac., 640. 1 The offices of guardian and prochein ami are entirely distinct; and the privilege of suing by prochein ami did not exist before the statutes of Westm., 1, c. 48, and Westm., 2, c. 15; and is given only in cases of necessity, as where an infant is to sue his guardian, or is eloigned, or where the guardian will not sue for him. In all except these special cases, the suit should be by guardian, and not by prochein ami. Bac. Abr., tit. Infancy, K. The subject is now quite generally governed by statute in the States, so that any extensive discussion of the question would be profitless. The cases cited, in general, relate to the former common law practice, and are principally valuable now as illustrating that practice, and as furnishing guides under the statutory practice, in so far as that practice has not departed from common law. Infants are, and have been, always regarded as favored suitors, and the courts make it their duty to watch over the interests of minor plaintiffs or defendants, and will act as guardians of their rights. of the country, and cannot appear for him; and when the guardian so far countenances the suit, that he will not forbid the infant to sue by prochein ami: but if the guardian will not consent that the suit should be brought, he cannot sue by prochein ami. When an infant commences a suit otherwise than by guardian or prochein ami, the defendant may plead his disability. (a) An infant wife may appear by an attorney, appointed by her husband. The practice of suing by prochein ami is the same in Connecticut as in England. I know it has been questioned by some, whether an action could be brought in those States where there is no statute to warrant it by prochein ami. The answer to this objection is, that the statutes of England, as ancient as the statutes of Westminster, which were enacted long before the emigration of our ancestors to this country, and applicable to the circumstances of this country, have been considered, with us, as high authority as the common law itself. The term prochein ami, means any person who claims to appear as such for the infant. And any person may sue for an infant in his name, without his consent; but the court before whom the suit is brought, if he be an improper person, or has brought an improper claim before the court, will dismiss the suit." (a) 2 Rol., 287; 2 Saund., 213. 1 But after plea pleaded, a defendant cannot move to set aside the plaintiff's proceedings, on the ground that the suit is prosecuted without the appointment of a prochein ami. Fellows v. Niver, 18 Wend., 563. 2 See 6 Com. Dig. Pl., 302: Bothur v. McCall, 31 Ala., 449; Ivey v. McKinnon, 84 N. C., 651. The prochein ami is but a species of attorney, who may prosecute for the infant, but can do nothing to operate to his injury, and cannot, therefore. release or compromise a suit, prosecuted in behalf of a minor. He is admitted to proceed, for otherwise the infant might be prejudiced by the neglect or refusal of his guardian. Isaacs v. Boyd, 5 Port. (Ala.), 388; Hamilton v. Foster, 1 Brevard, 464 It is held in Keeran v. Clowser, 5 Black. (Ind.), 604, that, unless the prochein ami of an infant plaintiff is appointed by the court, the defendant is not obliged to plead to the action, and may have the suit discharged. A judgment of nil dicit against an infant is held not to be void, but erroWhite v. Albertson, 3 Dev., 241. neous. Upon a presentment against the infant for a misdemeanor, the infant has |
