The opinion of the court was delivered by

In procuring the patent without compulsion of the law or request of the party interested, the plaintiff below laid the defendants under a moral obligation which, though sufficient as a consideration for an express promise, raised no promise by implication of law; and this was given in charge to the jury. But to give effect to this moral obligation in another shape, the plaintiff, in the character of a prochien-ami, was placed- on the vantage-, ground of those for whose use the patent was to be procured, and who, in the event of the defendants’ neglect or refusal, might by their guardian have procured it at the defendants’ expense. But merely as the executor of their father’s will, under which they do not derive title to the land, the plaintiff stood in no priwity to them as regards this transaction; and his relation of uncle gaye him no *173right to interfere in it in the character of a prochein-ami. In the seventh section of the act constituting the Orphans’ Court, the term is used along with the word tutor, to signify a curator, appointed by the court, and as another term to designate the office of a guardian; beside whom I know of but one other prochein-ami whose acts, as such, are recognized by the law. An infant may sue by his qext friend appointed, at the common law, hy the court in which the action is pending, and by our practice, without any appointment at all, in order to supply the want of capacity in the infant to afford in his own'person, a party responsible on the record for the costs; but as the execution of the trust is under the supervision and control of the court, there is no reason why our practice of constituting a prochein-ami, without the express sanction of the court, should be disturbed. Such a next friend is in the nature of a guardian ad litem, the chief difference being, that the former is the curator of an infant plaintiff, and the latter of an infant defendant. 1 Tidd. prac. 69. But it would be another matter to permit an arbitrary and irresponsible agent to affect the estate of the infant, or acquire rights of his own, by acts in pais. Every thing might have been regularly done on the part of the plaintiff, by procuring the authority of the guardian, if there were one, or by becoming guardian himself. But it would be not only dangerous, but unwarranted hy any principle of law, to recognize an irregular guardianship like the present; and though desirous to give effeetto the imperfect obligation that evidently rests on the defendants, yet, sitting in a court whose judgments are precedents for transactions, the morality of which may happen to be the other way, we mustnoUct the hardship of the case warp the abstract principle by which it is to be governed.

Judgment reversed.