pauper, the court refused to grant a rule for staying the proceedings, until the costs were paid of a prior ejectment for the same cause: but it was admitted, that he would not in such second action be allowed to sue in formá pauperis. And where an order was made pendente lite, admitting the plaintiff to prosecute his action in formâ pauperis, and an application by the defendant for security for, and taxation of the costs previously incurred, was not made till nearly two years afterwards; the court of Exchequer refused the application, and allowed a retrospective operation to the order. If a pauper be admitted to defend a suit in Chancery, in formâ pauperis, his solicitor can only recover of him money actually paid out of pocket, for the defence of the suit. And though a pauper be not liable to pay costs, yet he is entitled to receive them from his adversary a.

Infant must sue by prochein amy, or guardian.

An infant, or person under the age of twenty one years, not being capable of appointing an attorney, must sue by his prochein amy or guardiane, unless where he sues as co-executor with others, in which case it is holden, that the executors of full age may appoint an attorney for themselves and the infant, as they make together but one representative f. And hence, he cannot be an informer upon a penal statutes; for, by the 18 Eliz. c. 5. § 1. "every informer upon a penal statute must exhibit his “suit in proper person, and pursue the same only by himself or his attor"ney." An infant defendant must in all cases appear and defend by Defend by guarguardian, even where he is sued as co-executor with others h: And common bail cannot be filed for him under the statute, though he be sued jointly with other defendants. If he appear by attorney, it is error; though if an infant plaintiff appear by attorney, it is cured by the statutes of jeofails1. It also seems, that in an action against baron and feme, the feme being under age, she ought to appear by guardian".

dian.

Mode of appointing prochein amy, or

To constitute a prochein amy or guardian, the person intended, who is usually some near relation, should come with the infant, before a judge at his chambers; or else a petition" should be presented to the judge, on be- guardian.

Goodtitle v. Mayo, H. 29 Geo. III. K.

B. and see 2 Str. 1121.

M'Clel. & Y. 282.

1 Car. & P. 533.

1 Bos. & Pul. 39.

e Co. Lit. 135. b. 8 Inst. 261. 390. F. N. B. 27. 2 Wms. Saund. 5 Ed. 117. f. (1).

12 Wms. Saund. 5 Ed. 212, 13. (6). But see Com. Dig. tit. Pleader, 2 C. I. where it is said, that if several sue jointly, and some are within age, and some of full age, and all appear by attorney, it is no error; for those of full age may make an attorney for all.

Rule, or order, for admission of.

half of the infant, stating the nature of the action, and, if for the defendant, that he is advised and believes he has a good defence thereto; and praying, in respect of his infancy, that the person intended may be assigned him, as his prochein amy or guardian, to prosecute or defend the action. This petition should be accompanied with an agreement, signifying the assent of the intended prochein amy or guardian, and an affidavit, made by some third person, that the petition and agreement were duly signed. On being applied to in either of these ways, the judge will grant his fiat; upon which a rule or order should be drawn up, with the clerk of the rules, in the King's Bench, for the admission of the prochein amy or guardiand. In the Common Pleas, the order for the admission is made by the judge, and entered by the prothonotaries on their remembrance roll: which admission is either special, to prosecute or defend a particular action, or general, to prosecute or defend all actions whatsoevere; though it is said, that, by the practice of the King's Bench, a special admission of a guardian, to appear in one cause, will serve for others. The infant's father

is usually appointed his prochein amy: but where the father, being a necessary witness for the infant, cannot be appointed, the court of King's Bench, on motion, will appoint some other person, with the father's con

sent 5.

The rule or order for the admission of a prochein amy, should be obtained before declaration, and a copy thereof annexed to it; or the defendant is not compellable to plead1: and the attorney for the plaintiff, if required, must give notice to the defendant's attorney, of the place of abode of the prochein amy. In like manner, the rule or order for the admission of a guardian should be obtained before plea, and a copy of it annexed thereto; for if an infant defendant appear by attorney, though it be in consequence of common process, with a notice requiring him to appear in that manner, the plaintiff may obtain an order for striking out the appearance, and that the defendant appear by guardian within a certain time, being usually four or six days; or, in default thereof, that the plaintiff may be at liberty to name a guardian, to appear and defend for him*: And a similar order may be obtained, where the defendant neglects to Entry of chang- appear at all. If a prochein amy or guardian be changed, pending an ing. action, the fact ought to be stated by an entry on the recordm.

Security for, or payment of

costs, by infant,

An infant plaintiff cannot be compelled to give security for costs, on the ground of the insolvency of his prochein amy": and the latter alone is liable to the payment of costs; and if he refuse to pay them on demand,

he may be proceeded against by attachment. Yet, where an infant plaintiff was taken in execution for costs, the court refused to discharge him on motion. And it has been adjudged; that costs are payable by an infant defendant.

And the prochein amy is primá facie liable to the plaintiff's attorney for his costs, as well

as to the defendant. 2 Esp. Rep. 473.

a

128. Pr. Reg. 102. S. C.

2 Str. 1217. 13 East, 6. and see Barnes, 183. 1 Bos. & Pul. 480.

C Cas. Pr. C. P. 32. Willes, 190. Barnes,

Dyer, 104. 1 Bulst. 189. 2 Str. 1217.

CHAP. V.

Original writ, what, and when

it lies, in K. B.

When necessary.

Benefit of proceeding by.

Of the ORIGINAL WRIT; and PROCESS thereon, previous to the CAPIAS, in the KING'S BENCH and COMMON PLEAS.

AN original writ is a mandatory letter from the king in Chancery, scaled with his great seala; and, in the King's Bench, may be the means of commencing all personal actions, against every person not being an attorney or officer of the court, or a prisoner in the actual custody of the marshal. Formerly indeed, it was not usual to proceed in the King's Bench, by original writ, in debt, detinue, or other action of a mere civil natureb: but the modern practice is different ; and, in Lord Mansfield's time, where the defendant pleaded to the jurisdiction, in an action of debt commenced by original writ, the court gave judgment on demurrer for the plaintiff; and declared, that if such a plea should come before them again, they would inquire by whom it was signed. On the other hand, an original writ seems to have been formerly the only way of proceeding against peers, and members of the house of commons; as it is still, against the former, and also against corporations, or hundredors 8, on the statute 7 & 8 Geo. IV. c. 31; or where, by reason of the defendant's being abroad, or keeping out of the way, he cannot be arrested or served with process.

Another benefit attending this mode of proceeding in the King's Bench is, that after judgment in an action by original, a writ of error will not lie in the Exchequer chamber, where it is often brought for the mere purpose of delay, but only in Parliament . The reason is, that at common law, no writ of error lay, except in Parliament, from the judgment of this court; and the statute which gave a writ of error in the Exchequer chamber, only extends to such actions as are first commenced in the King's Bench: therefore, though a writ of error will lie in the Exchequer chamber, on a judgment by bill, which originates in the King's Bench, yet it is otherwise where the judgment is upon an original writ, which issues out of Chancery, where the action in that case is first commenced.

C.

when not to be

sued out.

But, in order to save the great and unnecessary expence of suing forth Special writs, special writs in small and trifling suits, it was enacted by the statute 5 Geo. II. c. 27. § 5. that "no special writ or process should be issued out " of any superior court, where the cause of action should not amount to the "sum of ten pounds or upwards a." And, by the statute 7 & 8 Geo. IV. c. 71. "where the cause of action in any court shall not amount to the "sum of twenty pounds, exclusive of any costs, charges and expences, "that may have been incurred, recovered or become chargeable, in or "about the suing for or recovering the same, or any part thereof, no "special writ or writs, nor any process specially therein expressing the "cause or causes of action, shall be sued forth or issued from any "court, in order to compel any person or persons to appear thereon in "such court; and all proceedings and judgments that shall be had on "any such writ or process, shall be, and are thereby declared to be void "and of no effect:" But a bailable writ is not necessarily a special writ, within the meaning of the above statutes. It is also a rule of the court of King's Bench, that "in all actions in which the plaintiff shall proceed against the defendant by special original writ, and shall recover less than the sum of fifty pounds, he shall not, on taxing costs, be allowed any more or other costs, than he would have been entitled to, in case he had proceeded by bill; except in such actions, in which he could not proceed by bill, or in which any defendant shall be actually outlawed." But the costs of a special original were allowed, in an action brought on a bond, the penalty of which was more than fifty pounds, though the sum found due was only twenty pounds.

Costs, when allowed on.

ment, or remo

val of actions.

De cursu, or magistralia.

Original writs are calculated for the commencement or removal of For commenceactions. And they are either de cursu, or magistralia: the former were framed in the king's court, before the division of it by magna charta, and are to be found in the register of original writs; the latter were made out by the masters in chancery, pursuant to the statute of Westm. 2. (13 Edw I.) c. 24. by which it is enacted, that "whenever it shall happen in Chancery, that in one case a writ is found, and not in a similar "case, falling under the same law, and requiring the like remedy, the " clerks of the Chancery shall agree in making a writ, or refer the plain"tiffs to the next parliament." Of the register of original writs, upon Register of which Fitzherbert's natura brevium is a comment, it has been said, that every man who is injured will be sure to find in it a method of relief, exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. 2. for framing new writs when wanted, is almost rendered useless by the very great perfection