of his property-then, supposing he would, if sane, be entitled ought to be put on this rule? It is obvious that, in the But still if it is for his protection and for his obvious benefit, then the Court ought to interfere to give him, while his senses are sleeping, the same sort of protection to which he would be entitled if his senses were awake, and he could act for himself." or against paupers. Special provision is also made by the rules with regard to Actions by proceedings by or against paupers. Before a person can be admitted to sue or defend as a pauper, proof must be given that he is not worth £25 (now substituted for the former limit of £5), his wearing apparel and the subject-matter of the cause or matter only excepted. Before a person can be admitted to sue as pauper, counsel's opinion must be obtained that he has a reasonable ground for proceeding, and the case so laid before counsel, with his opinion, and an affidavit of the party or his solicitor that the case is fully and truly stated, must be produced to the Court or its officer. There is, however, no similar restriction with regard to the right of defending as a pauper. The person admitted to sue or defend is exempted from Court fees. Counsel and solicitor may be assigned to him, and no fees can be taken from him (1). In a case which came very recently before the Appeal Committee of the House of Lords, where a petition for leave to prosecute on appeal in formá pauperis, it appeared that the petitioner sought, as one of the public, to establish a right of fishing in a tidal river adjoining land belonging to the defender, aud that subscriptions had been collected to assist the petitioner in the litigation, it was decided that as the question involved was one respecting an alleged public right, leave to appeal in formá pauperis ought not to be granted (2). It frequently happens that the defendant in his turn has () See as to proceedings by and against paupers, R. S. C. 1883, Order XVI. r. 22-31, inclusive; and see Tucker v. Collinson, 16 Q. B. D. 562, as to right of pauper to be heard in person where no counsel assigned; Re Robinson, 33 Ch. D. 265, as to (2) Bowie v. Marquis of Ailsa, 13 Thirdparty notice. Contribution or indemnity some right or claim more or less connected with the subjectmatter of the action, which he desires to enforce against some third person. Special provision is made for meeting cases of this description, so as to enable all the questions in dispute to be determined in one action. Where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice (called the third-party notice) to that effect, stamped with the seal with which writs of summons are sealed. A copy of this notice must be filed with the proper officer and served on the party according to the rules relating to the service of writs of summons. This notice must state the nature and grounds of the claim, and must, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering the defence. A copy of the statement of claim, or if there be no statement of claim, then a copy of the writ, must be served along with the third party notice (1). The policy of the law expressed in the rule is plain. If A. is suing B., and B. denies his right to sue, but says, "even if he is entitled to sue, C. has indemnified me; let him come here and fight his own battle, or help me to fight mine," the object of the rule of procedure is that there should be a discussion and a decision once for all, of the real substance of the dispute (2). In giving leave to a defendant to serve notice of claim for contribution or indemnity on a third party, the Court will not consider whether the claim is a valid one, but only whether the claim is bona fide, and whether if established it will result in contribution or indemnity (3). Where a defendant claims to be entitled to contribution or indemnity against any other defendant to the action, a notice against co- may be issued and the same procedure is to be adopted, for the defendant. determination of such questions between the defendants, as would be issued and taken against such other defendant, were he a third party. Sometimes during the course of an action or other proceeding, (1) R. S. C., 1883, Order xvI. rr. 48-55. (2) Per Bacon, V.C., Edison and Swan United Electric Light Co. v. Holland, 33 Ch. D. 499; and see Carshore v. North Eastern Railway Co., 29 Ch. D. 344; Johnstone v. Salvage Association, 19 Q. B. D. 458; Birmingham and District Land Co. v. London and North Western Railway (3) The Court of Appeal has intimated that if the third party objects to the order bringing him before the Court, he has a right to appeal against it: Barton v. London and North Western Ry. Co., 38 Ch. D. 147. one of the parties to it marries, dies, or becomes bankrupt, Abateand where an action became defective in this way, it is tech- ment. nically said to "abate." The rules provide that: A cause or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite (1). This rule applies only when the cause of action survives or continues in some person who is before the Court, and accordingly, where a sole plaintiff went into liquidation (for this purpose the equivalent of bankruptcy (see post, p. 913)), and a trustee was appointed, and no one appeared at the trial, either for the plaintiff or for his trustee, the Court considered that the action had abated, and ordered the action to be struck out of the list (2). An addition was introduced by the Rules of 1883, that: : Whether the cause of action survives or not, there shall be no abatement by reason of the death of either party, between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death. In case of the marriage, death, or bankruptcy, or devolution. of estate by operation of law, of any party to a cause or matter, the Court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party, be made a party, or be served with notice of the proceedings. The Court has power to impose terms, and generally to make such order for the disposal of the cause or matter as may be just (3). (1) R. S. C., 1883, Order xvII. r. 1. See as to this rule Stanhope v. Stanhope, 34 W. R. 447, and see as to the maxim actio personalis moritur cum persona, ante, p. 497. (2) Eldridge v. Burgess, 7 Ch. D. 411. (3) R. S. C., 1883, Order XVII. r. 2: see Atkins v. Shepherd, 43 Ch. D. 131; Jones v. Simes, 43 Ch. D. 607. Object of service. Substituted service. CHAPTER III. SERVICE OF WRIT. When the proper indorsements have been made on the writ it must be served on the defendant or defendants, as the case may be, either personally or on a solicitor authorized to accept service on his or their behalf. "The object of all service," said Lord Cranworth in a well-known case, "is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required” (1). No service of the writ is required where the defendant by his solicitor undertakes in writing to accept service and enters an appearance. In such cases a copy of the writ is usually left at the solicitor's office. A solicitor not entering an appearance in pursuance of a written undertaking to do so, is liable to attachment (2). If in any case the plaintiff is unable to effect prompt personal service, the Court or judge may make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may be just (3). Every application to the Court or a judge for an order for substituted or other service, or for the substitution of notice for service, must be supported by an affidavit setting forth the grounds upon which the application is made. The object of the rule was stated by the Court of Appeal to be to obviate the difficulties that the plaintiff might be exposed to by reason of a defendant's going abroad and keeping abroad, and it being impossible to effect personal service, and to prevent the plaintiff's right being entirely defeated by reason of these difficulties. The intention of the framers of the rule was to (1) Hope v. Hope, 4 De G. M. & G. 328, 342. (2) R. S. C., 1883, Order Ix. r. 1; Order XII. r. 18; see generally as to service of orders, &c.: Order LXVII. (3) R. S. C., 1883, Order Ix. r. 2, and see Order LXVII. r. 6, as to substituted service of notice of pleadings. enable the Court in such cases to order substituted service, and that when such substituted service was directed it should have all the effects of personal service (1). tuted The principle upon which the Court proceeds in directing Substisubstituted service is that substituted service should be service. ordered : 1. Upon such persons as are impliedly authorized to accept that particular service, or; 2. Upon persons who will certainly communicate the process so served to the party. Thus it has been ordered upon general agents, special agents, former solicitors, &c. (2). "It is," as was said by an eminent judge, "the essential foundation of the administration of justice, that a person against whom an action or other proceeding is brought, should have notice of the proceedings before he is concluded" (3). The Court, when an application for leave to effect substituted service is made, decides as to the propriety of granting it, and if service be effected according to the order, it is, while the order remains undischarged, equivalent for all purposes to actual service. Substituted service will not be ordered, unless there be reasonable ground shewn for supposing that the person so served will have notice of it (4). Where a solicitor is acting for the party, substituted service on him may properly be ordered, and so upon any other persons with whom the Court is satisfied that the party is in communication. The rules have also made special provisions for service in the Special following cases :— When husband and wife are both defendants, they shall both be served, unless the Court or a judge shall otherwise order (5). When an infant is a defendant, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a judge otherwise orders, be deemed good service on the infant. The Court or judge may, however, order that service on the infant shall be deemed good service (6). When a lunatic or person of unsound mind not so found by inquisition is a defendant, service on the committee of the lunatic, or on the person with whom the person of unsound (1) Watt v. Barnett, 3 Q. B. D. 186, 366. (2) Annual Practice, p. 226. Barnett, 3 Q. B. D. 185. (1) Furber v. King, 29 W. R. 535. provisions as to service. |