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Berrain v. Katzen8/25/1993
rnal at 1292. The bill passed the House and was transmitted to the Senate where the Judicial Proceedings Committee expanded the custodial mother's window of exclusive right to sue from three months to six months, an amendment accepted by the House. 1927 House Journal at 1619.
Former Rule 205 d, which we also adopted in 1957, was derived from Md. Code (1951), Art. 16, § 180 which provided:
"All infants and other persons under any disability to sue, may sue by their guardian or committee, if any, or by their prochein ami ; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other persons; but before the name of any person shall be used in any suit to be instituted as next friend of any infant or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill or other proceeding."
The function of the next friend, or prochein ami , has its genesis in ancient English statutory' law. The first statute permitting a next friend to sue on behalf of infants was promulgated by Parliament as 3 Edw. 1, Cap. 48 (1 Westminster 48) in 1275 and was limited to those cases where the guardian had acted to bar his ward's cause of action. In 1285, Parliament extended the right of a next friend to sue on behalf of an infant to all actions by 13 Edw. 1, Cap. 15 (2 Westminster 15). As was explained in J. H. Thomas's arrangement of Lord Coke's First Institute :
"At common law, infants could neither sue nor defend, except by guardian ; by whom was meant, not the guardian of the infant's person and estate, but either one admitted by the court for the particular suit on the infant's personal appearance, or appointed for suits in general by the king's letters patent. But this rule was found inconvenient, it sometimes happening, that an infant was secreted by those having legal custody of him, and so prevented from applying to have a guardian ad litem appointed. Hence was seen the necessity of permitting any persons to litigate for the infant's benefit, who should be disposed to risk the expense. On this principle the Statute of Westminster the first enables any one to sue as prochein amy for an infant in an assize, where the infant himself is essoigned by his guardian, or otherwise disturbed from suing the assize. The statute of Westminster the second extended this provision, by permitting the Prochein amy to sue in all actions; and though in this statute, as well as in the former, eloignment of the infant was mentioned, yet by construction it is not deemed necessary, but the prochein amy may sue, whether that circumstance occurs or not, it being considered merely as an instance of the necessity of the case, and as such only taken notice of by those who framed the statute."
J. H. Thomas, Lord Coke's First Institute of the Laws of England 199 n. 29 (1827).
13 Edw. 1, Cap. 15 was one of the "statutes found applicable and proper to be incorporated" into the laws of Maryland when the first Maryland Constitution was adopted in 1776. Art. 5 of the Declaration of Rights (1776); Kilty's English Statutes To Be In Effect In Maryland 212 (1811). See also 1 John P. Poe, Pleading and Practice in Courts of Common Law, § 313 (Herbert T. Tiffany ed., 5th ed. 1925); Ward B. Coe, Alexander's British Statutes in Force in Maryland, 158-61 (2d ed. 1912). Pursuant to section 18 of Article IV of the Maryland Constitution permitting this Court to promulgate rules of procedure in equity cases, General Equity Rule 10 was promulgated in 1883 providing that "all infants and o
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