Hardy ex rel. Boyle v. Scanlin

1 Miles 87

Opinion

Per Curiam.

It is the duly of the court to protect the infant so far as to give him an opportunity to be heard ; and it, is clearly within out power to make such an order as will lead to a trial that shall be fair for both parties. An unwilling guardian might embarrass the proceedings, and, before the defendant can be compelled to plead, there should be an adverse party on record responsible for costs. Though an infant must appear and defend by guardian, yet he may sue either by guardian or prochein amy. Co. Litt. 135, b. Without, then, making absolute this rule, the court, on the application of Boyle, will give him leave to withdraw his name from the record; and on the application of Hardy, will give leave that the plaintiff’s declaration be withdrawn, and the name of a suitable person be substituted as prochein amy for that of James Boyle, guardian.

Whereupon, application was made by each party, and leave granted accordingly ; and the court being informed that Benjamin Duncan was willing to act for the infant, made an order for his admission as prochein amy.

Rule discharged.