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13 E. 1, STAT. 1, CAP. 15, PROCHEIN AMI 159 fend by guardian.1 He must appear to be an infant, for if he sue at full age by guardian or prochein ami, it is error. So it is erroneous for him to sue without saying, by whom, which shall be intended in proper person, or to commence a suit by attorney and afterwards proceed by guardian or conversely, although by Stat. 21 Jac. 1, c. 13, s. 2, in eject- ment and personal actions if he sue by attorney it is aided after verdict, and by Stat. 4 Ann. c. 16, s. 2, after judgment by confession, nil dicit, non sum informatus, or after writ of inquiry executed; since which Statutes, however, the plaintiff's infancy may be pleaded in abatement, Foxwist v. Tremaine, 2 Wms. Saund. 212. But the non-age of a plaintiff is no ob- jection to an action on a bond in the State's name for the infant's use, Fridge v. the State, 3 G- & J. 103. The above mentioned Acts do not ap- ply to infants defending by attorney, which is still error where the judg- ment is against them, but not if it is in their favor, Bird v. Pegg, 5 B. & A. 418, and if there are other defendants of full age, the judgment will be reversed as to all, see Kemp v. Cook, 18 Md. 130, but the infant in that case, having acquiesced in the judgment after he came of age, was held barred by his laches, and the Court intimated that a motion to strike out the judgment was not the proper mode of taking advantage of the error. If an infant defendant appear by attorney, the Court will at the instance of the plaintiff compel an amended appearance by substituting a guardian, 3 Power* and duties of next friend.—A prochein ami is not a party to the suit in a technical sense, though he is responsible for costs. He is an officer of the court specially appointed to look after the interest of the infant in whose behalf he acts. No formal order of admission is neces- sary under Maryland practice. The court can at any time revoke his authority and remove him and if necessary appoint another. Deford v. State, 30 Md. 179; Trayhern v. Colbourn, 63 Md. 99; Richard v. Izer, 95 Md. 467. One of the duties of a next friend is to employ an attorney to con- duct the suit. In the absence of a regularly constituted guardian for the infant, the next friend may receive the money recovered, give a sufficient acquittance therefor and enter satisfaction of the judgment, and the at- torney employed by him may do the same; contra, where the infant has a regularly appointed guardian. B. & O. R. R. Co. v. Fitzpatrick, 36 Md. 619. A next friend may make a suggestion and affidavit for removal. De- ford v. State, supra; Albert v. State, 66 Md. 325. But he is not an in- competent witness under Code 1911, Art. 35, sec. 3. Johnson v. Johnson, 105 Md. 81. While the court, after the majority of the infant, may discharge the next friend and give control of the suit to the former, it must make such equitable order as will protect the next friend from costs already incurred and relieve him from future liability therefor. Wainwright v. Wilkin- son, 62 Md. 146; Reichard v. Izer, 95 Md. 466. Under the Act of 1898, ch. 241, the next friend of an infant suing at law has power to compromise the suit under certain conditions. Code 1911, Art. 75, sec. 56; dark v. Southern Can Co., 115 Md. —. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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