Opinion
June Term, 1828.
From Perquimans.
An infant is liable for the costs of a suit conducted by his prochein amy, and upon a judgment of nonsuit a fi. fa. may issue against his property.
TROVER for a negro, and on the trial the defendant claimed under a sale made by the sheriff upon a fi. fa. which issued against the plaintiff for the cost of a suit wherein he had been nonsuited. The plaintiff was an infant at the commencement of that suit and prosecuted it by his prochein amy.
No counsel for the plaintiff.
Hogg for the defendant.
The jury, under the instruction of his Honor, Judge Martin, returned a verdict for the defendant, and the plaintiff appealed.
I know of no distinction between an infant and an adult, as to their liability for costs, nor can I see any reason why one should exist. The officers of the court are equally entitled in the one case as in the other. In both they labor at the instance of the party. It is true that process is not applied for by the infant personally, but it is by one who is appointed by law to represent him and to superintend (432) his interest — his guardian or next friend. The suit is in his name and for his benefit; the costs must be paid by some one, and if they are thrown on the guardian or next friend, few would undertake to sue in behalf of infants. A due regard to the interest of infants, therefore, requires that they should be answerable. A guardian is selected by the court and gives bond, and the court should see that no one assumes the character of next friend but a person of responsibility and who it is probable has the interest of the infant at heart. If they abuse their office they are liable to the infant.
PER CURIAM. Judgment affirmed.