Berrain v. Katzen8/25/1993
ther persons under any disability to sue may sue by their guardian or committee, if any, or by their prochein ami ; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other persons." In re Paca, 140 Md. 45, 116 A. 842 (1922). The provision was subsequently adopted as Md. Code (1888), Art. 16, § 125. The provision appeared in the same form continuously until it was repealed by ch. 399, § 1, of the Acts of 1957. The provision was incorporated into the Maryland Rules of Procedure as Md. Rule 205 d the same year.
We have had the opportunity to discuss the role of the next friend representing a minor in Maryland. In Deford v. State, Use of Keyser, 30 Md. 179 (1869), we said:
"The prochein ami is, in contemplation of law, admitted by the court to prosecute for the infant; though, according to the practice of our courts, never by any actual order passed for that purpose. He becomes an officer of the court, and subject to its orders and direction; and whether there be a guardian or not, appointment by a different authority, makes no difference, and does not affect the authority of the prochein ami to prosecute for the infant. He stands very much in the relation of an attorney to the case, and as it is supposed that he is appointed by the court, it is competent at any time for the court to revoke his authority and remove him, and if it be necessary, to appoint another in his place."
Id. at 199(citation omitted). See also Reichard v. Izer, 95 Md. 451, 52 A. 592 (1902); Trahern v. Colburn, 63 Md. 99 (1885); B. & O. R.R. Co. v. Fitzpatrick, 36 Md. 619 (1872).
In one of the earliest reported American cases interpreting 13 Edw. 1, Cap. 15, the Connecticut Supreme Court's decision in Apthorp v. Backus, Kirby 407 (1788) reflects the longstanding view regarding the duty of the next friend and the court in overseeing the exercise of that duty. There a suit was brought on behalf of Henrietta Apthorp, a minor, by her next friend and guardian, Perez Martin, an attorney, to recover land purchased by her father, Stephen, since deceased, in Chelsea in 1768. The case was heard by a jury which returned a verdict for the plaintiff. The defendant appealed, challenging the appointment of the next friend. The court stated:
"If, however, the suit and appearance are considered as by prochien amy, because the term next friend is also used in the declaration, and may denote the special kind of guardianship intended, still they are good: For though we have no statute, as there was originally in England, authorizing suits by prochein amy, yet long practice, and the reason of the case, are sufficient. It is for the benefit of infants who have no guardians, or such as from particular circumstances cannot or will not sue for them, as the case may require, to admit their suits by prochein amy, whose power and responsibility relative thereto, are the same as guardians: And there can be no danger to the infant from such practice; for the court under whose inspection the suit is prosecuted, is bound to take care for the infant; and if the prochein amy is not a responsible and proper person, or misconducts the suit, or institutes one not apparently for the benefit of the infant, will displace him, and, if need be, appoint another.
"It is, indeed, the duty of Judges of Probate to see that infants who need guardians have them; but, through want of information, or for other reasons; they frequently fail to do it. Their neglect should not prejudice the infant, or deprive him of the benefit of a friend, who may be willing to step in and protect him in a particular suit; and if the infant does not happen to liv
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