The exceptions to the charge were taken in time when set out in appellants’ statement of case on appeal *368 (Lowe v. Elliott, 107 N. C., 718), though it is better practice and fairer both to appellee and appellant, to make such exceptions on a motion for a new trial, since if a slip has been made the .Judge may perhaps correct it and save parties the costs and delay of an appeal. McKinnon v. Morrison, 104 N. C., 354.
We find no error in the charge in the particulars excepted to. There are many precedents to support it. It is true that, ordinarily, if insanity is found to exist, it is presumed to continue till the opposite is shown. State v. Vann, 82 N. C., 631. But here the main contention in the action being as to the mental capacity of Larkin Smith, the preliminary action of the Clerk in appointing next friends to conduct the proceeding is not such a finding as to change the burden of proof and prejudge the very question at is=ue
While there is no specific exception to the judgment, any error therein which is apparent upon the face of the record the Court will take notice of and correct. Thornton v. Brady, 100 N. C., 38. The next friends are not parties to tlae action. Mason v. McCormick, 75 N. C., 263; George v. High, 85 N. C., 113; Tate v. Mott, 96 N. C., 19. They are appointed by the Court to act for and represent the real party in interest. The verdict and judgment having settled that Larkin Smith was compos mentis, the order appointing next friends was properly set aside. He then could have continued the action as to so much of it as asked to set aside the prior power of attorney to defendant, or have discontinued it. He elected to do the latter. The costs of the proceedings instituted in his behalf, and by order of the Court, should, prima facie, be taxed against him. It is to be presumed that the order of the Court appointing next friends was made regularly, after due inquiry, and in the interest of Larkin Smith. He is the party plaintiff, in fact and in law, and appeared by next friends, who merely represented him, under the authority and appointment of the Court. The Code, § 180. It is *369contended, however, that though not strictly parties to the action, the next friends in the case at Bar, in resisting the motion to discharge them, were in fact (as virtually found by the verdict of the jury) resisting the will of Larkin Smith, a person of full age and competent to appear for himself; that such next friends officiously and unnecessarily caused themselves to be appointed, and that they, and not Larkin Smith, should pay the costs incurred by their false clamor. There is some force in this suggestion. While “ next friends” may not be embraced in the strict letter of The Code, § 535, they come within the purview of that section. R was held error to tax trustees of an express trust who are parties to an action with the costs unless the Court had adjudged that they were guilty of “ mismanagement or bad faith in such action.” Smith v. King, 107 N. C., 273. A fortiori it is error to tax “ next friends ” who are not parties without at least a similar finding. This is not alleged here in the answer nor found by the Court. Indeed, the presumption, by virtue of their appointment by the Court, is that they acted in good faith, and they cannot be liable to costs unless there is an express finding against them of the facts requisite to tax them with costs. An analagous rule obtains in criminal actions, as to which it is held that an order taxing a prosecutor with the costs is erroneous unless the Court finds the facts which would authorize such order, and that the absence of such finding from the judgment would be an-error apparent on the face of the record which the Court would correct without assignment of error. State v. Roberts, 106 N. C., 662. It is further held in the same case, that it is, notwithstanding, still open to the Solicitor, when the case goes back for correction of the judgment, to move the Court below that it pass upon the facts, the Court not having found the facts either wray so as to make its judgment a finality, but having simply omitted to find them.
*370We find no error, except in the judgment as to costs, which should not have been awarded against the next friends without a distinct finding by the Court “ of mismanagement or bad faith” by them in the institution or conduct of the action. To the end that such fact may be passed upon by the Court below, and the costs awarded in accordance therewith, the cause is remanded. The judgment in all other respects is affirmed.