630 HELMS v. FRANCISCUS.

dants had been legally married; of the other allegations of the
plaintiffs, they knew nothing.

On the 10th of January, 1826, the infant defendants Carsten
Newhaus, John H. Newhaus, and Jacob Newhaus, answered by
their guardian ad litem, and admitted the will of the testator; that
the executors had obtained letters testamentary; and that John
Franciscus had been appointed their guardian; but as to all else,
knowing nothing, they left the plaintiffs to sustain their case by
proof.

By a writing filed on the 11th of April, 1826, it was agreed
between the solicitors of the plaintiffs, and the solicitor of the
defendant Franciscus, that a commission should issue to four per-
sons named, of Baltimore, to take testimony; a commission was
accordingly issued, testimony taken and returned; and no excep-
tions were taken to it. And on the 13th of July, 1826, it was, on
the petition of the plaintiffs, Ordered, that a commission issue to
the four persons named, to take testimony in Bremen, unless be-
fore the 27th instant, the defendants name, and strike commis-
sions, which they having failed to do, a commission issued accord-
ingly.

The plaintiffs, by their petition, stated, that Frederick A.
Wandelohr, who had been made a plaintiff only, as the next friend
of the plaintiff Anna, was a material and important witness for
them; but being, as he then stood, interested in the event of the
suit, and therefore incompetent; they prayed that he might be
discharged; and that Charles F. Mayer should be allowed to take
his place; the said Mayer having consented to do so, and to
become bound in all respects, as the next friend of the plaintiff
Anna.

1st September, 1826.—BLAND, Chancellor.—It is clear that any
one, so long as he stands before the court as the next friend of an
infant or a feme covert plaintiff, being liable for costs, is therefore
an interested and incompetent witness, (a) But where the object
is not to favour the escape of such a next friend from any liability,
arising from the suit's having been improperly instituted or con-
ducted b j him, he may be made a competent witness by being
discharged, and having another put in his place; and the court
will, on application, at any time before the final hearing, allow a

(a) Head v. Head, 3 Atk. 547.