Frederick Henry Collins, an Infant (by Henry Collins, his Next Friend) v Brook
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1860 |
| Date | 14 May 1860 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 1360
IN THE EXCHEQUER CHAMBER
S. C. 29 L. J. Ex. 255; 6 Jur. (N. S.) 999, 8 W. R. 474, 2 L T. 774.
in the exchequer chamber (Appeal from the Court of Exchequer.) frederick hinry collins, an Infant (by Henry Collins, his Next Friejid) v. BROOK. May 14, 1860.-Where an infant, suing by prochein ami, has obtained judgment lor damages and costs, which have been paid to the attortiey appointed by the prochein ami to conduct the suit for him, he may maintain an action against such attorney to recover the amount as money received for his use. So Held in the Exchequer Chamber (affirming the judgment of the Court of Exchequer). [S. C. 29 L. J. Ex. 255 ; 6 Jur. (N. S.) 999, 8 W. R. 474, 2 L T. 774.] This was an appeal against the decision of the Court of Exchequer in discharging a rule to enter the verdict for the defendant, pursuant to leave reserved at the trial. The pkadings and facta of the case sufficiently appear in the report, 4 H. & N. 270. [701} Koriman argued for the defendant (a) The question is this-An infant, suing by procbein ami, recovers judgment for damages and costs, the attorney employed by the prochein ami to conduct the suit in Court receives them,-can the infant sue die attorney for money had and received to his use1* It is submitted that he cannok The right to sue for money had and received depends on privity between the parties; but there is no privity between the infant and the attorney. A prochein ami ia in the game position as an attorney on the record . 2 Inst. 259, 390; Statute of MertoB, 20 Hen. 3, c. 10; 2 Inst. 99, 225. The prochein ami, like the attorney on the record in other cases, is a person who conducts the suit on behalf of the party intere^ed, though the attorney is appointed, by the party, and the prochein ami by the Court In Morgan v. Thorne (7 M. & W. 400), Parke, B., said, "It appears perfectly clear that every prochein ami is to be considered as an officer of the Court, specially appointed by them to look after the interests of the infant." And Alderson, B., (a) May 12 and 14. Before Williams, J., Crompton, J., Willes, J., Byles, J., and Blackburn, J. 5H.ftN. m COLLINS V. BROOK 1361 said, "The truth is, that cases of this nature fall within the equity of the Statute of Westminstei 1st, 3 Edw. 1, c. 48, which gives an infant the right to sue by his proehein ami against his guardian in chivalry, who shall have aliened any portion of the inheritance of the infant. ... It is, in fact, almost the same thing as appointing an attorney ; the law, if we may so speak, appoints an attorney to act on behalf of the infant " A prochem ami is not a party to the suit Smclaii v. Sinclair (13 M. & W. 640) That a prochein ami is in the position of an attorney on the record, further appears from the form of the commencement of a declaration in an action by an infant: Chandler v Vildt (2 Saund. 117 k ), 2 Chit. Plead. [702] 14, 7th ed The relation of the attorney employed to the infant is riot that of attorney and client, but it rather resembles the situation of a town agent employed by a country attorney to conduct a smt The attorney has a right to sue the prochein ami for his costs, because the contract is with him, not with the infant Marnell v. Pickmoie (2 Esp 472), Hawkes v. L'dtrdl (3 H & N 243) The power of the prochein ami to receive the damages is absolute, and he can give a valid discharge for them, even though he has commenced the act4en without consulting the infant Morgan v. Thorne (7 M. & W. 400), Fitzh. N. B 27 (I.). The suit of an infant is subject only to the direction of the prochein ami and not of the infant: Tolei's case (1 Salk. 176), Vin. Abridg. tit. Attorney (D.) The prochein ami has power to enter satisfaction on the roll : While, v. Hall (Moor, 842). Bobbins v. Fennell (11 Q B 248) is one of a series of cases which establish that a sub-agent is not bound to account to the principal, but only to his immediate employer. That case is the same as the present, except that here the intermediate party is the prochein ami, there he was the...
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