The Revised Statutes provide (2 Rev. Stat., 620, § 1, subd. 5), that when a suit shall be •commenced in the name of any infant whose next friend has not given security for costs, the defendant may require such plaintiff to file security for costs. The only question presented' by the appeal is, whether this provision is applicable to the case of an infant suing by guardian, as provided by the Code of Procedure (§§ 115, 116). The plaintiff insists that, as before the Code the provision referred to applied only to cases where a next friend was required to be appointed (2 Rev. Stat., 446, § 2, 3 ed.; 4 How. Pr., 93), it is abrogated by the Code, which expressly provides that when an infant is a party he shall appear by guardian (§§ 468, 469). I have attentively considered the argument submitted by the plaintiff’s counsel, but it has failed to convince me that the Legislature, in directing that infants shall in all cases appear by guardian, intended thereby to relieve a sole infant plaintiff from the requirement of the statute to file security for costs.
Obviously, one object of the Code in this change, if not the only one, was to dispensé- with the terms “ next friend” and “prcrchein ami,” and to apply a uniform term of designation to the person by whom an infant may appear in an action, whether such infant is plaintiff or defendant, sole party or joined with others. But notwithstanding the change of name, the duties and responsibilities of such person, towards the infant at least, remain the same as formerly ; he is to the infant plaintiff precisely what a “ next friend” was before the Code. Not only is this true of his liabilities at common law, but also of those imposed by statute. The Revised Statutes provide that in certain cases the next friend shall, if required by the officer to whom application is made for his appointment, exe*312cute a bond to the infant, conditioned to account to him for all moneys recovered in the suit. (2 Rev. Stat., 446, 3 ed., §§ 5, 6, 7.) I apprehend this provision is still in forpe, and applies to the guardian of an infant plaintiff, appointed as provided by the Code.
Yet, if the position of the plaintiff’s counsel is correct, this-provision, which was intended solely for the benefit of the infant, is also repealed by the change of name. I do not think the Legislature so intended.
If, then, the legislature, by substituting the term guardian for that of next friend, have not discarded any former rule designed for the protection of the infant, what reason is there for supposing that they intended to abrogate the wholesome statute requiring security for the costs of the defendant'( They have not done so in express terms; there was no necessity of resorting to doubtful language, and a repeal by implication is not to be favored^ The plaintiff’s counsel suggests, that the words “ guardian” and “ next friend” or “proohein ami” have an ancient, fixed, and technical meaning, and were never synonymous, and the Legislature must be understood to have employed them in their technical sense. In fact, however, they have not a well-defined, distinct, and technical meaning. Originally, at common law, the guardian of the infant was the person to prosecute as well as defend suits in his behalf. But as guardians were sometimes themselves the very persons who disturbed and injured the infants in their rights, the Legislature at length interposed, and by statute (1 Westm., ch. 48) enacted, “ that if an infant be eloigned or disturbed by his guardian or feofee, or any other, whereby he cannot prosecute his assize, any one of his nearest friends who pleases may sue for him.” Afterwards, by the statute of 2 Westm., chap. 15, a general privilege was allowed in all cases for minors to sue by their next friend, who was to be admitted for that purpose. (2 Sellon’s Pr., 64.) In the books, the names of guardians and prochein ami are oftentimes taken the one for the other, because it frequently happens that they used to be one and the same, as the guardian in socage was also proehem ami, &c. (Ib.) After the statute of 2 Westm., it seems to have been the rule that an infant shall sue by proeheim, ami and defend by guardian ; but even then the distinction was one of terms merely, *313for as well the guardian as the prochein ami could only be admitted on proper petition and application to the court; and any person who, as friend to the infant, was willing to prosecute or defend for him, was competent to be so admitted, (Ib.) It is difficult, therefore, to discover any substantial difference in the meaning of the terms, which furnishes a reason for requiring an infant plaintiff to give security for the defendant’s costs when he appears by next friend, and relieving him from that requirement when he appears by guardian.
The plaintiff’s counsel draws another argument from the fact that the Code of 1848 did not make guardians liable for costs, and the Legislature supplied the omission in 1849 by section 316 of the Code. It is argued that, as there was then a statute in force making the next friend liable (2 Rev. Stat., 446, § 2), the legislation of 1849 would have been unnecessary, if next friend and guardian were considered the same thing. But by a similar argument, the provision of the Eevised Statutes last above referred to might be shown to have beep unnecessary, since at common law the next friend was liable for costs. (Wille’s R., 190; 11 Wend., 164). The answer is, that the statute was declaratory merely (Revisors’ notes, 5 Rev. Stat., Edm. ed., 479); and so is section 316 of the Code, not only in making the person by whom an infant plaintiff sues liable for costs, but also in subjecting him to attachment. (2 Sell. Pr., 67 ; Tidd’s Pr., 72).
• It is also argued by the plaintiff’s counsel, that if security can be required in this case, the attorney is liable for costs, if it is not given, under section 7 (2 Rev. Stat., 620); and as that section did not apply to suits in the Court of Chancery (9 Paige, 381), this court must either reverse the rule of chancery and extend the statute to equitable as well as legal actions, or else the liability of the attorney must depend on the nature of the suit. It is unnecessary now to consider the question whether, under our present statutes, the liability of the attorney exists in all cases, or only in actions of a legal nature, as that question is not before us; but it is enough to say that no practical difficulty and no injustice would result from holding that it exists in all legal actions at least, and hence the argument does not appear to be of much weight in the present •case.
*314I am of opinion that the order appealed from should be reversed.
Order affirmed.