
    William M‘Daniel against Theophilus Nicholson.
    su^bytiSao! thetriab°nslllí: at
    The plaintiff had brought a sum. pro. against the defendant, but, living out of the state, had been ordered to give security for costs. In the course of the trial it appeared, that the plaintiff was a minor, whereon he was ordered to be non-suit, not having sued by prochcin ande, or guardian, nor having offered any person to become his guardian in this stage of the trial. His counsel then moved that the security should be discharged, because the plaintiff had moved back into the state, and was residing then in Edgefield District. The motion was refused, from which the plaintiff appeals, and moves the Court to reverse that decision.
   The opinion of the Court was delivered by

Mr. Justice Grimke.

The motion, when made in the Circuit Court, was to the discretion of the presiding J udge, and I considered, that as the plaintiff knew he was not of age when he brought his action, he should not obtain, by returning into the state, a discharge of the order, by which he was bound to give security for costs, especially as he had not substituted any one to be his guardian, and who would be responsible for the same. It is true that a minor may commence an action, but he cannot file his declaration, until he has some person appointed his prochain amie, or guardian; - . , .f.. . he did not do so, and went on to trial, he must be nonsuit, whatever were the merits of the In the present case of a sum. pro. he ought, at least, to have got some person appointed to act for him in that character, before the trial came on; but as he has not done so, his security must take the consequences.

I am of opinion, therefore, that the motion ought to be discharged.

Colcoch and Cheves, J. concurred.

Johnson, J.

I concur in this case, on the ground that the Court had no power on a mere motion to discharge the security of the plaintiff from his liability on his bond, after the termination of the action.  