next friend

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In common law, next friend (Law French prochein ami) is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian.

This disability often arises from minority, mental incapacity, or lack of access to counsel, consequently every application to the court on behalf of a minor or a lunatic or a person detained without access to an attorney, who does not have a legal guardian or someone authorized to act on their behalf with a power of attorney, must be made through a next friend (prochein amie, proximus amicus).

Prior to the Married Women's Property Act 1882 in British law (and similar acts in the same time period in American law) it was also usual for a married woman to sue by a next friend, but that act, allowing a married woman to sue in all respects as a feme sole, has rendered a next friend unnecessary in the case of married women.

When a relative who is next of kin acts as a next friend for a person, that person is sometimes instead referred to as the natural guardian of the person.

Historically, in the case of a minor, the father is prima facie the proper person to act as next friend; in the father's absence the testamentary guardian if any; but any person not under disability may act as next friend so long as he has no interest in the action adverse to that of the minor. A married woman could not historically act as next friend, but this practice is no longer current, at least in the United States. A minor frequently defends a suit, not by a next friend, but by a guardian ad litem often appointed by the court with jurisdiction over the case or a court with probate jurisdiction.

In the case of mental incapacity, a conservator, guardian, or committee, but if they have no such representative, or if the committee has some interest adverse to the claimant, they may sue by a next friend.

A next friend has full power over the proceedings in the action as if he were an ordinary plaintiff, until such time as a guardian or guardian ad litem is appointed in the case, but is only entitled to present evidence on the same basis as any other witness.

One notable use of next friend status was in connection with many suits brought by detainees at Guantanamo Bay prior to the enactment of the Military Commissions Act of 2006.

See also

• McKenzie Friend

References

 This article incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). Encyclopædia Britannica (11th ed.). Cambridge University Press.