1841.

WATSON

v.

FRASER.

Platt shewed cause. It is laid down generally in the Exch. of Pleas, books of practice, that the insolvency of a prochein amy is no ground for requiring security for costs (a). In an Anonymous case in Marshall's Reports (b), Sir James Mansfield, C. J., observed, "that the infant might have a good right of action, and was not to lose his cause because his prochein amy was not a man of responsibility." The doctrine laid down by Buller, J., in Doe d. Selby v. Alston (c), that, "when an infant sues, the Court will oblige the prochein amy or guardian, or attorney, to give security for the costs," must be considered as overruled by that and subsequent cases. In an Anonymous case in 2 Chit. Rep. 359, the Court doubted whether such an application could be entertained; and in Yarmouth v. Mitchell (d), it was held that an infant need not give security for costs, though his prochein amy is sworn to be insolvent. A party ought not to be delayed his suit on this ground; if he were, it would in many cases be a denial of justice. The Court does not appoint a prochein amy for the benefit or protection of the defendant, but of the infant plaintiff, in order that he may have some person to direct him in the conduct of his suit. It does not appear that this infant has any property whatever; and why is the defendant to be placed in a better situation, by the appointment of a prochein amy, than if he were sued by a poor man, in which case no security could be required, as was held in an Anonymous case in 2 Taunt. 61 (e). The rule, at all events, ought not to be in this alternative form.

Addison, contrà. --The case of Turner v. Turner (f) affords a precedent for the rule being in the alternative. As to the main question, would the Court, in the exercise

Exch. of Pleas, of its discretion, have granted the order appointing the

1841.

WATSON

v.

FRASER.

plaintiff as prochein amy, if they had known that he was
an uncertificated bankrupt? The appointment must have
been procured by fraud practised on the Court, which is
quite a sufficient reason for revoking it. [Parke, B.—The
Court certainly has a discretion in the matter, and the
question is, whether they have not been imposed upon.]
What was said by Buller, J., in Doe d. Selby v. Alston, is an
express authority in favour of the application; and in Mann
v. Bertram (a), which is more recent than any of the cases
which have been cited on the other side, it was held, that
where an infant sues by guardian who is sworn to be in
insolvent circumstances, the Court will require him to give
security for costs. In the case of Yarmouth v. Mitchell, the
prochein amy was the father of the infant, which distin
guishes that case from the present, because the father is
the natural guardian of an infant. Here, though the
father is living, a stranger has been
stranger an uncertificated bankrupt.
cases that are analogous in principle. In Heaford v.
Knight (b), where the plaintiff was discharged under the
Insolvent Act, after issue joined, and before notice of trial
given, the Court stayed the proceedings until the assignee
or some creditor of the plaintiff should give security for
costs. So, in Webb v. Ward (c), which was
brought by an uncertificated bankrupt, the plaintiff was
required to give security for costs. He also cited Weston
v. Withers (d). An infant pays no costs, for it is the pro-
chein amy who is liable for the costs of the action.

selected, and that There are several

an action

PARKE, B.-This rule must be made absolute on some terms or other, for it is impossible for us to allow an uncertificated bankrupt to continue to be the prochein amy

of

1841.

WATSON

v.

FRASER.

an infant suing before us. It is the duty of the Court, in Exch. of Pleas, its discretion, to appoint a proper person to act as the prochein amy of an infant, when he requires the aid of one. The object of appointing one at all is, to protect the rights of the infant, by the nomination of a person of mature years to act for him. I by no means wish to be understood as laying down the general position, that the poverty of a prochein amy is always a ground for removing him; but in the present case, it appears to me, that (whether intentionally or not it is unnecessary to inquire, and it is not intended to cast any imputation on the attorney in the cause,) an imposition has in some way been practised on the Court, and that they have unknowingly appointed an improper person to act as prochein amy for this plaintiff. The natural and proper individual to be appointed as prochein amy is the father of the infant, instead of whom they have brought forward an uncertificated bankrupt, a person incapacitated by law from acquiring any property which he can call his own; a fact which, the moment it becomes exposed to the Court, will induce them, in the exercise of their discretion, to interpose and remove him. Even as regards the benefit of the infant himself, an uncertificated bankrupt is an improper person to be appointed, as all his property belongs to his assignees. The father is, as I have stated, the proper and natural guardian of every infant, and as such ought always, in the first instance, to be appointed to act as his prochein amy; and if, as appears to be the case here, his evidence is likely to become necessary in the course of the cause, a special application should be made to the court to have him removed, and another prochein amy appointed. The Court would then have an opportunity of seeing who the person proposed to be substituted was, and would take care that he was a fit and proper individual for that purpose; they would, at least, take care to have some more respectable person than an uncertificated bankrupt. But the father of an infant can

Exch. of Pleas, not be allowed to do that per saltum, which ought to be

1841.

WATSON

v.

FRASER,

done in a regular course. Without, therefore, laying down any general rule on that subject, it suffices to say, that, in this particular case, we consider a deception has been practised on the Court in appointing this person, who ought not to be allowed to continue as prochein amy to this infant any longer. This rule must, therefore, be made absolute to set aside the appointment.

The rest of the Court concurred.

FOSTER V. PRYME.

Rule absolute.

June 11.

pearance be en.

tered in term

time or vaca

tiff has the whole

Whether an ap- CLEASBY had obtained a rule to shew cause why the judgment of nonpros signed in this cause should not be set tion, the plain- aside for irregularity. It appeared that the writ of summons was served on the 13th of April, and on the 7th of next following May, the last day but one of Easter Term, an appearance was entered. A demand of declaration was served on the plaintiff on the 13th of May, and on the 2nd of June judgment of nonpros was signed.

of the term

to declare in; and therefore, where an appearance was

entered in Eas

ter Term, and judgment of nonpros signed in Trinity

Term, it was held that the judgment was irregular.

Petersdorff now shewed cause.-The plaintiff ought to have declared before the end of the term next after the service of the writ. Formerly, in actions by bill, if an appearance was entered of the term in which the writ was returnable, the plaintiff had the whole of the next term to declare in; but now, in actions commenced by writ of summons, inasmuch as an appearance may be entered by the defendant in vacation as well as in term time, the plaintiff ought to declare within the term next after the execution of the writ, otherwise a judgment of nonpros

1841.

may be signed. 1 Arch. Prac. 283 (a). The writ in this Exch. of Pleas, case was served in Hilary Vacation, and judgment was not signed until Trinity Term.

Cleasby, in support of the rule.-The plaintiff has still the whole of the following term after the defendant has entered an appearance to declare in. The practice is correctly stated in Lush's Prac. 336 (b), where it is said"The plaintiff is not compellable to declare until the end of the term next after that in or of which the appearance is entered, it being enacted by 13 Car. 2, stat. 2, s. 3, that upon appearance to be entered in the term wherein the process is returnable, with the respective officers in that behalf, for the said person or persons, by attorney or attornies, in the said respective Courts from whence the said process issued, unto such process, unless the plaintiff in such processs named shall put in to the Court from whence such process did issue, his declaration against the person so arrested in some personal action or ejectione firmæ of lands or tenements, before the end of the term next following after appearance; that then a nonsuit, for want of a declaration, may be entered against the plaintiff in the said courts respectively. The judgment of nonpros given by this statute differs from the nonsuit upon an original at common law; though in terms confined to bailable actions, it has always been construed as applicable also to serviceable process. The defendant must appear by attorney at such a time that his appearance may have relation back to the return of the writ. Accordingly, the judgment states the appearance to have been made on the return day. As the appearance must now be dated of the day on which it is entered, and the doctrine of relation is abolished, it would seem that, in order to avail himself of the statute, the defendant must cause it to be entered on the eighth day inclusive after the service."

(a) 6th Edit.

(b) And see Tidd's New Prac. 224.

FOSTER

v.

PRYME.