Where Crown concerned as Parens Patriæ. Of Informations on behalf of Idiots and Luatics. Lunatic must be a party, unless to avoid his own acts. the Attorney or Solicitor-general is authorized to institute informations by particular Acts of Parliament, as in the case of proceedings under the Marriage Act, 4 Geo. 4, c. 76, and under the Acts (s) for giving additional facilities in applications to courts of equity regarding the management of estates or funds belonging to charities. With respect to idiots and lunatics, it is to be observed that suits on their behalf are usually instituted by the committees of their estates; but that sometimes where there has been no committee, or where the interest of the committee is likely to clash with those of the persons whose estates are under their care, informations have been exhibited on their behalf by the Attorney-general, as the officer of the Crown (t). Where informations have been filed on behalf of persons found lunatic, but who have had no committee appointed, the Court will proceed to give directions for the care of the property of the lunatic, and for proper proceedings to obtain the appointment of a committee (u). Persons incapable of acting for themselves, though not coming under the description of idiots or lunatics, have been permitted to sue by their next friend without the intervention of the Attorney-general (x). It seems that when an information is filed on behalf of a lunatic, he must be named as a party to the suit, and that merely naming him as a relator will not be sufficient (y); but in the cases of the Attorney-general v. Parkhurst (z), and Attorney-general v. Woolrich (a), a distinction appears to be taken between cases where the object of the suit is to avoid some transaction of the lunatic, on the ground of his incapacity, and those in which it is merely to affirm a contract entered into by him for his benefit, or to assert some claim on his behalf. In the former case it was held that the lunatic ought not to be named as plaintiff, because no man can be heard to stultify himself. If he is named, however, it will (s) 59 Geo. 3, c. 91; and 2 Will. 4, c. 57. (t) Attorney-general v. Parkhurst, 1 Cha. Ca. 112; Attorney-general v. Woolrich, ibid. 153; Attorneygeneral v. Tiler, 1 Dick. 378; 2 Eden, 230. (u) Attorney-general v. Howe, Ld. Red. 23, n. 3. (r) Liney v. Wetherley, Ld. Red. 23, n. a. (y) Attorney-general v. Tiler, } Dick. 378. (:) I Cha. Ca. 112. (a) Ibid. 153. Lunatics. be no ground for demurrer (b). The reason for making a On behalf of lunatic a party in proceedings of this nature appears to be, Idiots and that as no person can be bound by a decree in a suit to which he or they under whom he derives title are not parties, and as a lunatic may recover his understanding, the decree will not have the effect of binding him unless he is a party to the suit; and upon the same principle it is held, that where a suit is instituted on behalf of the lunatic by his committee, the committee must be named as a co-plaintiff, in order that the right which the committee acquires in the lunatic's estate, by virtue of the grant from the Crown, may be barred. The Idiots not necessame reason does not apply to cases of idiots, because in con- sary parties. templation of law they never can acquire their senses; they are, therefore, not considered necessary parties to proceedings on their behalf (c). lar Statutes. missioners' Act. With respect to informations exhibited under particular Of informations Acts of Parliament: By the 59 Geo. 3, c. 91, which was under particupassed for giving additional facilities in applications to Courts of Equity regarding the management of estates or funds belonging to charities, the commissioners appointed under the 58 Geo. 3, c. 91, and 59 Geo. 3, c. 81, or any five or more Charity Comof them, are authorized and empowered, whenever, upon any investigation had or taken by or before them, any case shall arise or happen in which it shall appear to the said commissioners that the directions or orders of a Court of Equity are requisite for remedying any neglect, breach of trust, fraud, abuse or misconduct, in the management of any trust created for any charitable purposes, as therein mentioned, or of the estates or funds thereunto belonging, or for the regulating the administration of any such trust, or of the estates or funds thereof, to certify the particulars of such case in writing under their hands to His Majesty's Attorney-general; and thereupon His Majesty's Attorney-general is authorized and empowered, if he shall so think fit, either by a summary application in the nature of a petition, or by information, as the case may require, to apply to or commence a suit in His Majesty's High Court of Chancery, or to or in His Majesty's (b) Ridler v. Ridler, Eq. Ca. Ab. 279. (c) Attorney-general v. Woolrich, 1 Cha. Ca. 153. Under particular Court of Exchequer, sitting as a Court of Equity, stating and Statutes. setting forth the neglect, breach of trust, fraud, abuse or mis Marriage Act. conduct, or other cause of complaint or application, and praying such relief as the nature of the case may require. This Act has been continued by the 2 Will. 4, c. 57, sec. 11, by which Act the Attorney-general's certificate that the particulars of the case in question have been duly certified to him by the commissioners, is made sufficient evidence of such certifying by the commissioners (e). It is to be observed, that in proceedings under these Acts the Attorney-general is not considered liable to costs in the event of failure; but although as an officer suing in discharge of his public duty he can never be made to pay costs in a Court of Equity, yet it is not the rule of a Court of Equity that he cannot receive costs, and that in an information under the first-mentioned Act the defendant was ordered to pay the Attorney-general his costs (ƒ). By the Marriage Act, 4 Geo. 4, c. 76, s. 23, it is enacted, that if any valid marriage solemnized by licence shall be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under the age of twentyone years, not being a widower or widow, contrary to the provisions of the Act, by means of such party falsely swearing as to any matter to which such party is required personally to swear, (such party wilfully and knowingly so swearing); or if any valid marriage by banns shall be procured by a party thereto to be solemnized by banns between persons, one or both of whom shall be under the age of twenty-one years, not being a widower or widow, such party knowing that such person as aforesaid under the age of twenty-one years had a parent or guardian then living, and that such marriage was had without the consent of such parent or guardian, and knowing that banns had not been published according to the provisions of the Act, and having caused or procured the undue publication of banns; then and in every such case it shall be lawful for (e) These Acts are perpetual; and it has been held that, although the Act under which the Commissioners were appointed have expired, still the Attorney-general may, under the authority of those mentioned in the text, proceed upon any certificate of the Commissioners, made while their authority was in existence. Attorney-general v. Bullin, Rolls, Jan. 22, 24, 1835. (f) Attorney-general v. Lord Ashburnham, 1 S. & S. 394. Statutes. his Majesty's Attorney-general (or for his Majesty's Solicitor- Under particular general in case of the vacancy of the office of Attorneygeneral), by information in the nature of an English bill, in the Court of Chancery or Court of Exchequer, at the relation of a parent or guardian of the minor whose consent has not been given to such marriage, and who shall be responsible for any costs incurred in such suit, (such parent or guardian previously making oath as is thereinafter required,) to sue for a forfeiture of all estate, right, title and interest in any property which hath accrued or shall accrue to the party so offending by force of such marriage; and such Court shall have power in such suit to declare such forfeiture, and thereupon to order and direct that all such estate, right, title and interest in any property as shall then have accrued or shall thereafter accrue to such offending party by force of such marriage, shall be secured under the direction of such Court for the benefit of the innocent party, or of the issue of the marriage, or of any of them, in such manner as the said Court shall think fit, for the purpose of preventing the offending party from deriving any interest in real or personal estate, or pecuniary benefits, from such marriage; and if both the parties so contracting marriage shall in the judgment of the Court be guilty of any such offence as aforesaid, it shall be lawful for the said Court to settle and secure such property, or any part thereof, immediately for the benefit of the issue of the marriage, subject to such provisions for the offending parties, by way of maintenance or otherwise, as the said Court, under the particular circumstances of the case, shall think reasonable, regard being had to the benefit of the issue of the marriage during the lives of their parents, and of the issue of the parties respectively by any future marriage, or of the parties themselves in case either of them shall survive the other. In all cases of informations which immediately concern the rights of the Crown, its officers proceed upon their own authority, without the intervention of any other person (g); but where the information does not immediately concern the rights of the King, they generally depend upon the relation of some person (g) Ld. Red. 18; Attorney-gene- ney-general v. Croft, 1 Bro. P. C. Vern. 277. 370; Attor- 222. ral v. Of Relators. In what cases necessary. Of Relators. In what cases Plaintiffs. whose name is inserted in the information, and who is termed the Relator (h). This person in reality sustains and directs the suit, and he is considered as answerable to the Court and the parties for the propriety of the proceedings, and the conduct of them (i). It sometimes happens that this person has an intethey ought to be rest in the matter in dispute, of the injury to which interest he is entitled to complain. In this case his personal complaint being joined to and incorporated with the information given to the Court by the officer of the Crown, they form together an information and bill, and are so termed. In some respects, however, they are considered as distinct proceedings; and the Court will treat them as such, by dismissing the bill and retaining the information, even though the relief to be granted is different from that prayed. Thus in Attorney-general v. Vivian (k), where the record was both an information for a charity and a bill, and the whole of the relief specifically prayed was in respect of an alleged interest of the relator in the trust property, which he did not succeed in establishing, Lord Gifford, although he dismissed the bill with costs, retained the information for the purpose of regulating the charity. Where the Suit of the Crown. But although it is the general practice, where the suit imrelates to rights mediately concerns the rights of the Crown, to proceed without a relator, yet instances have sometimes occurred where relators have been named. In such cases, however, it has been done through the tenderness of the officers towards the defendant, in order that the Court might award costs against the relator if the suit should appear to have been improperly conducted, it being a prerogative of the Crown not to pay costs to a subject (l). It has been said, that as the King by reason of his prerogative does not pay costs to a subject, so it is beneath his dignity to receive them. But many instances occur in the course of practice, in which the Attorney-general receives costs. In the Court of Exchequer it is the every day practice for the Crown to receive costs in interlocutory applications which are refused; and in the Court of Chancery, when collusion is suspected between the defendants and the relators, the Attorneygeneral attends by a distinct solicitor, and always receives his (h) Ld. Red. 18; 2 Ves. J. 247, n. (k) 1 Russ. 226; 2 Swan. 215. (4) Vide 3 Bl, Com. 400. |