Howett v. Alexander, 12 N.C. 431, 1 Dev. 431 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 431, 1 Dev. 431

Silvanus Howett v. Henry Alexander.

From Perquimons.

An. inf «it is liable for the costs of a suit conducted by his prochein amij, and upon a judgment of non suit, a fi. fa. may issue against his property.

Trover for a negro, and on tlie trial the Defendant claimed under a sale made by the Sheriff upon a ji. 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.

The Jury, under the instruction of his honor Judge MartiN, returned a verdict for the Defendant, aud the Plaintiff appealed. /

No Counsel appeared for the Plaintiff.

Hogg, for the Defendant.

An infant is liable to pay costs, in every case in which a judgment is rendered against him.''

Th (-English Courts, sometimes oblige a prochein amy or guardian, to pay costs by an attachment. But it is not settled, whether an execution may issue against the infant himself. Under our statute of 1777", (licv. ch. 115,) there can be no doubt on the subject.

in the State of Massachusetts, where there is a similar act, this case has been expressly decided, (ámií/i v. Floyd* \ Pickering, 275.)

HeNdersoN, Judge.

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 labour at the instance of the party. It is true, that process is not applied for by the jnpasrá personally, but it is by one who is appointed by *aw rffiD'e,sent him, and to superintend his interest — his guardian or* next friend. The suit is in his name, ami for jjjg benefit; the cost 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 bas tbe interest of the infant at heart. If they abuse their office, they are liable to the infant.

Per Curiam. — Judgment affirmed.