
    Benjamin Smith et al. v. John Anderson.
    Columbia,
    Dec. 1828.
    None but a solvent person should be admitted prochein amy to prosecute the action of an infant plaintiff; but the Court of Appeals will not rescind the appointment of a prochein amy, whose solvency is doubtful: tor the person admitted may be removed, at any stage of the suit, on proof of his insolvency, and another substituted, unless security is given for the payment of costs.
    Tried before Mr. Justice Gaillard, at Union, Fall Term, 1828.
    One of the plaintiffs in this case being an infant, a motion was made to admit William Smith, the father, prochein amy to prosecute the action. The motion was resisted on the ground of the father’s insolvency. He was stated to be notoriously insolvent, but the fact was not admitted. The defendant proposed going into evidence of the alleged insolvency, which the presiding Judge refused to examine, as circumstances were stated which rendered the father peculiarly qualified for the management of the suit; and, on the other hand, the object of the defendant might be attained, by taking out a rule requiring security for costs to be given at the next term. The motion was therefore granted; and the defendant now moved to rescind the order.
    A. W. Thomson for the motion.
    O’Neall, contra.
    
   Colcock, J.

delivered the opinion of the Court.

It is not to be doubted, that the Court should always appoint a solvent person prochein amy of an infant plaintiff; for one of the objects of the appointment is to obtain a responsible person to answer for the costs: although in ordinary Cases any man, whether solvent, or insolvent, may commence an action in his own behalf. We cannot, however, rescind the order in this case; first, because it is not certain that the father is insolvent; and secondly, because, as the action has been brought, it may by possibility work an injury to the infant. But the defendant in the action is not without remedy ; for it is in the power of the Court, even after such an appointment has been made, upon proof of the insolvency of the prochein amy, to appoint another ; as is said in the case of Turner v. Turner, 1 Str. 708. see also 2 Sellon’s Pr. 68. Or if the father will give security for the costs, although he is insolvent, the Court may appoint him, or continue him in office if he has been appointed.

Motion refused.  