CHAPTER IX.

ACTIONS AGAINST HEIRS AND DEVISEES ON BOND, &C., OF ANCESTOR (a). 1. Proceedings until Judgment.

[Indorse the claim on the writ of summons thus (b):] The plaintiff's claim is against the defendant as heir-at-law [or devisee of lands under the will of] A. B., deceased [or against the defendant C. D. as heir-at-law, and against the defendant E. F. as devisee of lands under the will of A. B., deceased] for [state the claim].

[At the end of the statement of claim, state the claim thus:] The plaintiff claims against the defendant as such heir-at-law [or devisee] as aforesaid [or against the defendant C. D. as such heir-at-law, and the defendant E. F. as such devisee as aforesaid] [state the claim].

[In other respects the ordinary forms will suffice. There is no need to describe the defendant as heir or devisee in the title of the action or in the body of the writ of summons.]

2. Special Judgment on a Verdict against an Heir for the Debt of his

Ancestor (c).

[Proceed as in the usual form, ante, p. 373, No. 1, to the end of the certificate, and then thus:] Therefore it is adjudged that the plaintiff recover against the defendant as [son and] heir-at-law of E. F., deceased, £- and his costs to be taxed: to be levied of the lands and tenements which were of the said E. F. in fee simple at the time of his death, and which came to and are now in the hands of the defendant by hereditary descent from the said E. F.

3. Extent against an Heir upon a special Judgment against him (c).

[Title, &c., of action as usual.]

Edward the Seventh [&c., as usual, ante, p. 390], to the sheriff of greeting: Whereas lately in the King's Bench Division of our High Court of Justice, in a certain action there depending wherein A. B. was plaintiff and C. D., [son and] heir-at-law of E. F., deceased, was defendant, by a judgment of our said Court bearing date the

(a) See generally 2 Pract. 14th ed. 1128 et seq.

day of

(b) These forms follow those given in R. S. C., App. A., Pt. III., Sect. VII., and prescribed by Ord. III., r. 4.

(c) See Wms. Saund., ed. 1871, pp. 19 et seq.

C.F.

36

A.D.

:

day of

it was adjudged that the said A. B. recover against the said C. D. as [son and] heir-at-law of the said E. F. the sum of £, together with interest thereon at the rate of £- per centum per annum, together also with certain costs as in the said judgment mentioned, which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £ as appears by the certificate of the said taxing officer, dated the 19- * to be levied of the lands and tenements, which were of the said E. F. in fee simple at the time of his death, in the hands of the said C. D. [according to the terms of the judgment] Therefore we command you that by the oath of honest and lawful men of your bailiwick you diligently inquire of what lands and tenements the said E. F. was seised in fee simple at the time of his death, and which descended to the said C. D. as [son and] heir-at-law of the said E. F. by hereditary right after the death of the said E. F., and of which the said C. D. on the day of, 19, on which day the said A. B. sued out his writ of summons for the debt aforesaid against the said C. D., was seised in his demesne as of fee, and how much those lands and tenements, with the appurtenances, are worth by the year, in all issues beyond reprises, according to the true value of the same; and, when the said inquisition shall have been by you so made, that without delay you deliver the said lands and tenements, with the appurtenances, to the said A. B. to hold to him and his assigns as his freehold, until the said £— and £— [costs], together with interest on the said sums at the rate of £4 per centum per annum from the day of 19—, shall be thereof fully levied: And in what manner you shall have executed this our writ make appear to us in our Court aforesaid, immediately after the execution hereof, under your seal and the seals of those by whose oath you shall make the said extent and appraisement, and have there the names of those by whose oath you shall make the said extent and appraisement, and this writ. Witness [name of Lord Chancellor], Lord High Chancellor of Great Britain, the in the year of our Lord [Indorse the writ as in a fi. fa.]

day of

4. The like, on a general Judgment (d).

Edward the Seventh [&c., as usual, ante, p. 390], to the sheriff of greeting: Whereas A. B. lately [&c., as in preceding form to the asterisk*]: And afterwards the said A. B. came into our said Court and prayed to have delivered to him all the lands and tenements of the said C. D. in your county, which descended to the said C. D. from the said E. F. his [father] in fee simple, whereof the said C. D. on on which day the said 4. B. sued out his writ of summons against him for the debt aforesaid, was seised: But because it is unknown what lands and tenements the said

(d) See Wms. Saund., ed. 1871, pp. 19 et seq.

C. D., on the aforesaid day of suing out the writ aforesaid, had by hereditary descent from the said E. F. his [father], we command you that by the oath of honest and lawful men of your bailiwick you diligently inquire what lands and tenements the said C. D., on the said day of suing out the writ aforesaid, had by hereditary descent from the said E. F. his [father], and how much those lands and tenements are worth by the year, according to the true value of the same, in all issues beyond reprises: And, when the said inquisition shall have been by you diligently made, that without delay you deliver to the said A. B. the said lands and tenements, with the appurtenances, according to the true value of the same, to hold to the said A. B. and his assigns as his freehold, until [&c., conclude as in the preceding form].

Between A. B., an infant, by N. F.,

his [or her] next friend....Plaintiff,

The same as usual, except that the fact that the plaintiff is an infant suing by his next friend must be stated in the title and body thus: "A. B., an infant, by N. F., his [or her] next friend."

I, N. F., of

3. Authority of Next Friend (b).

[Title of proposed action.]

[insert name, address and addition of next solicitor, to use my name as

friend], hereby authorize Mr. X. Y., of

next friend of the above-named plaintiff A. B., an infant, in an action against the above-named defendant C. D. for [state the cause of action, as indorsed upon the writ of summons].

Dated

(Signed) N. F.

(a) By R. S. C., Ord. XVI., r. 16, "Infants may sue as plaintiffs by their next friends, in the manner heretofore practised in the Chancery Division; and may, in like manner, defend by their guardians appointed for that purpose. . . : If the infant be

a married woman, rules relating to married women will also apply (see post, Ch. XII.). As to actions against firms in which an infant is a partner, see Lovell v. Beauchamp, [1894] A. C. 607, and form No. 13, ante, p. 544.

(b) By R. S. C., Ord. XVI., r. 20, "Before the name of any person shall be used in

4. Application to substitute new Next Friend (c).

[Formal parts as usual in application to Master] for an order that the above-named N. F., the present next friend of the infant plaintiff A. B., be removed, and that R. S., of [insert name, address and addition], be appointed to act as next friend of the said A. B. in this action, and that the writ of summons and all subsequent proceedings herein be amended by substituting therein the name of the said R. S. as the next friend of the said A. B. instead of that of the said N. F.

5. Affidavit in support of Application.

The affidavit should show: 1, the reasons why the appointment of a new next friend is sought; 2, The relation, if any, of the proposed new next friend to the infant; 3, That he is a fit and proper person to be appointed; and 4, That he consents to act, exhibiting the written consent.

6. Authority of new Next Friend (d).

I, R. S., of -, hereby authorize Mr. X. Y., of solicitor, to use my name as next friend of the above-named plaintiff A. B. in this action instead of the name of the above-named N. F.

Discovery can now be had from an infant plaintiff and from his next friend. By Ord. XXXI., r. 29, "This order shall apply to infant plaintiffs and defendants and to their next friends and guardians ad litem."

8. Special Case.

By R. S. C., Ord. XXXIV., r. 4, "No special case in any cause or matter to which a . . . infant . . is a party shall be set down for argument without leave of the Court or a Judge, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such . . . infant, are true." For forms, see "Special Case," post.

any action as next friend of any infant, or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Central Office, or in the District Registry if the cause or matter is proceeding therein." Intitule the authority in the action.

By Ord. XVI., r. 11, “. . . No person shall be added . . . as the next friend of a plaintiff under any disability without his own consent in writing thereto. . . .”

(c) If the original next friend dies or becomes incapacitated from acting, an order must be obtained for the appointment of a new next friend.

(d) See note (b), p. 564.