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8 Beav. 92; Richardson v. Hastings, 7 Beav. 323.) A bill 158 16 Vict. praying relief contingently against one defendant only, in the event of the court not giving relief against another defendant, is demurrable. (Seddon v. Connell, 10 Sim. 79.) A bond creditor not having prayed an account of the testator's real estates in a suit for payment of his debt, was held not entitled to such relief under the prayer for general relief. (Chapman v. Chapman, 20 Law J. Ch. 465; 15 Jur. 265.) The rule as laid down by Lord Eldon, C., is, that if the bill contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief which those facts will sustain under the general prayer, but he cannot desert the specific relief prayed, and under the general prayer ask specific relief of another description, unless the facts and circumstances charged by the bill will, consistently with the rules of the court, maintain that relief. (Hiern v. Mill, 13 Ves. 119; Jones v. Smith, 1 Hare, 61.)
name is used as next friend
XI. Before the name of any person shall be used Person whose in any suit to be instituted in the said court as next friend of any infant(o), married woman (p), or of any infant, other party, or as relator in any information (q), suit, "&c. Yo such person shall sign a written authority to the sign a written
authority. solicitor for that purpose, and such authority shall be filed with the bill, information, or claim ().
(o) Where the interest of an infant renders it necessary to Suit by infile a bill, the suit is instituted by a next friend on his behalf, fant. and the consent of the infant is not necessary. (Mitf. Pl. 28.) The next friend is liable to the costs of the suit, and to the censure of the court, if the suit is wantonly or improperly instituted; but if the infant attains twenty-one, and afterwards thinks proper to proceed in the cause, he is liable to the whole costs. (Mitf. Pl. 26.) The next friend of an infant cannot be required to give security for costs. (Drinan v. Mannin, 3 Dru. & War. 154.) Even where the next friend of an infant was insolvent, and had been indemnified against costs, the court refused to stay proceedings in the suit until the next friend was changed or had given security for costs. (Murrell v. Clapham, 8 Sim. 74; Fellows v. Barrett, 1 Keen, 119; Davenpori v. Davenport, 1 Sim. & S. 101.)
(p) A married woman being under the protection of her Suit by mar. husband, a suit respecting her rights is usually instituted by ried woman. them jointly. The bill of the husband and wife, where it seeks relief in favour of the husband to the prejudice of the wife's interest, is considered by the court as the bill of the husband alone. In such a case, the proper course is to make the wife a defendant. (Hanrott v. Cadwallader, 2 Russ. & M. 545.) But it sometimes happens that a married woman claims some right in opposition to rights claimed by her hus
158 16Vict. band, and then the husband being the person, or one of the
persons, to be complained of, the complaint cannot be made by him. In such case the bill must be exhibited in her name by her next friend. But a bill cannot, in the case of a feme covert, be filed without her consent. (Mitf. Pl. 28.) Unless she be an infant, in which case a bill may be filed in her name by her next friend without her consent. (Wortham v. Pemberton, 9 Jur. 291.) Where the next friend of a sole infant plaintiff, after the infant had attained her majority, took proceedings in the suit without the plaintiff's authority, which were consequential on former proceedings, the costs of the next friend of the latter proceedings were disallowed. (Brown v. Wetherhead, 4 Hare, 122.)
Whether a party who is sued by a married woman has a right to object to the next friend, on the ground that he is not of substance to answer costs, has been the subject of a difference of opinion in different branches of the court. It has been lately held that a married woman cannot be allowed to sue by a next friend, who is incapable of giving security for costs. (Pennington v. Alvin, 1 Sim. & S. 264; Stevens v. Williams, 21 Law J. Ch. 57.) And notwithstanding that the same person was next friend to the infants and to a married woman, the court required costs to be given by the next friend. (Drinan v. Mannin, 3 Dru. & War. 154.) Lord Langdale, M. R., however, was of opinion that as it appeared from the cases that a married woman may sue in formâ puuperis, it seemed too much to contend that she could not sue by a next friend, who, though not able to say that he had the present means of paying the costs which might be awarded against him, nevertheless swore that he was perfectly solvent, and refused a motion for staying the proceedings until security for costs had been given. (Dowden v. Hook, 8 Beav. 399.) An application by a married woman, plaintiff, for leave to change her next friend, is in the discretion of the court, and will not be granted if there be reason to believe that the defendant's security for costs will be thereby prejudiced. (Jones v. Faw
cett, 2 Phill. C. C. 278.) Relator. (9) In charity cases the relator, who is responsible for the
costs of the suit, must be a responsible person, and if shown to be in indigent circumstances, will not be allowed to sue. (Fellows v. Barrett, 1 Keen, 120; see Mitf. Pl. 22.) But where in an information and bill the same individual who was named as the relator was also the plaintiff suing in his own right, the court would not dismiss the information and bill upon the ground that the relator, having been required by the Attorney General to give security for costs, had failed to do
so. (Ail.-Gen. v. Knight, 3 My. & C. 154.) Solicitor's
(r) A solicitor may, in the exercise of the general authority authority to given him by his client, defend a suit, but he ought to have a file bill. special authority from his client for instituting a suit. (Wright
v. Castle, 3 Mer. 12.) But such authority may be by parol
as well as in writing, and in the former case it may be proved 158 16Vict. by circumstances and by the subsequent conduct of the party. (Lord v. Kellett, 2 My. & K. 1.) If the plaintiff denies and the solicitor asserts authority to have been given, and there is nothing but assertion against assertion, the court holds that the solicitor ought to have secured himself by having an authority in writing, and that not having done so he must abide the consequences of having the bill dismissed, with costs to be paid by him. (Wright v. Castle, 3 Mer. 12 ; Allen Bone, 4 Beav. 493; Pinner v. Knights, 6 Beav, 174; Wilson v. Wilson, 1 Jac. & W. 457 ; Russell v. Jackson, 9 Hare, 387.) A suit instituted by a solicitor without the authority of his client was dismissed on motion, with the costs of the suit and the costs of the motion, in each case as between solicitor and client. (Crossley v. Crowther, 9 Hare, 384.) If a solicitor files a bill in the name of his client, without having a proper authority from him for so doing, the course for the client to pursue, if he wishes to get rid of the suit, is to move that the bill may be dismissed, and that the costs of the suit as between solicitor and client may be paid, not by the client, but by the solicitor filing the bill. (Allen v. Bone, 4 Beav. 493.) It is advisable for a plaintiff, whose name has been used without authority, to apply with due diligence after he has made the discovery, that his acquiescence may not be inferred. (Hall v. Luver, 1 Hare, 571 ; Wilson v. Wilson, 1 Jac. & W. 457.) The notice to dismiss the bill must be accompanied by an affidavit of the plaintiff, that the bill had been filed without his authority; and to avoid the effect of such an application, the solicitor against whom it is made must show distinctly upon affidavit that he had such special authority.
XII. Within a time to be limited by a general Interrogaorder of the Lord Chancellor in that behalf, the forces to be plaintiff in any suit in the said court commenced cord Office by bill may, if he requires an answer from any within time defendant thereto, file in the Record Office of the prescribed. said court interrogatories (s) for the examination of the defendant or defendants, or such of them from whom he shall require an answer, and deliver to the defendant or defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular defendant or defendants; and no defendant shall be called upon or required to put in any answer to a bill unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor, within the time so to be limited,
158 16Vict. or within such further time as the court shall think C. 86.
fit to direct.
(s) See Orders 15—20, 7th August, 1852, form of interrogatories, schedule (C). Every interrogatory should be founded upon statements or charges contained in the bill, and if there was nothing in the prior part of the bill to warrant an interrogatory, the defendant was not compellable to answer it. (Dan. Ch. Pr. 359, 2nd ed.) A defendant was at liberty, by answer, to decline answering any interrogatory, or part of an interrogatory, from answering which he might have protected himself by demurrer; and he was at liberty so to decline, notwithstanding he might answer other parts of the bill from which he might have protected himself by demurrer. (38th Order, August, 1841.) A defendant could not under this order decline to answer any interrogatory merely on the ground that the bill was open to a general demurrer. (Mason v. Wakeman, 2 Phill. C. c. 516.) This order did not protect a defendant from answering any interrogatory from which he could not have protected himself from answering by demurrer. (Padley v. Lincoln Waterworks Company, 2 Mac. & G. 86 ; 2 Hall & T. 295; see Dan. Ch. Pr. 537, 686, 2nd ed.)
but after that time de
Defendants XIII. Whether the plaintiff in any suit in the may answer without leave
said court commenced by bill does or does not rewithin the quire any answer from the defendant or any one or time now allowed,
more of the defendants to the bill, such defendant though not or defendants without
may, required so
leave of the court,
any to do by put in a plea, answer, or demurrer to the plaintiff's plaintiff;
bill within the time now allowed to the defendant for demurring alone to a bill (t), or within such other time as shall be fixed by any general order
of the Lord Chancellor in that behalf (u); but after fendant must that time a defendant or defendants not required to
answer the plaintiff's bill shall not be at liberty to put in a plea, answer, or demurrer to the bill, without leave of the court (v); provided that the power of the court to grant further time for pleading, answering, or demurring to any bill, upon the application of any defendant or defendants thereto, whether required to answer the bill or not, shali remain in full forcc, and shall not be in anywise prejudiced or affected (w): provided also, that if the court shall grant any further time to any defendant for pleading, answering, or demurring to the bill, the plaintiff's right to move for a decree under the
provisions hereinafter contained (s) shall in the 158 16Vict. meantime be suspended.
(1) A defendant may demur alone to any bill within twelve days after his appearance thereto, the day of appearance not being reckoned. (16th Order, May, 1845, s. 10; 11th and 13th Orders, May, 1845.)
(u) A defendant required to answer a bill must put in his plea, answer or demurrer thereto, not demurring alone, within fourteen days from the delivery to him or his solicitor of a copy of the interrogatories which he is required to answer; but the court shall have full power to enlarge the time, from time to time, upon application being made to the court for that purpose. (19th Order, 7th August, 1852.)
(v) Applications for time to plead, answer, or demur are to be disposed of by the judges sitting at chambers. (15 & 16 Vict. c. 80, s. 26.)
(w) The power of the court to enlarge or abridge the time for doing any act or taking any proceeding in a cause, upon such (if any) terms as the justice of the case requires, is unaffected by the Orders of May, 1845 (see 21st Order, May, 1845); and by the Orders, 7th August, 1852. (See 46th Order.)
(r) Sect. 15.
XIV. The answer of the defendant to any bill Defendant's of complaint in the said court may contain, not contain not only the answer of the defendant to the interroga- only answer tories so filed as aforesaid, but such statements tories, but material to the case as the defendant may think it statements necessary or advisable to set forth therein, and such his case. answer shall also be divided into paragraphs numbered consecutively, each paragraph containing as nearly as may be a separate and distinct statement or allegation(y).
(y) See 21st Order, 7th August, 1852, and form of answer, schedule (D).
XV. The plaintiff in any suit commenced by Plaintiff may, bill shall be at liberty, at any time after the time inexpiry of allowed to the defendant for answering the same swering, but shall have expired (but before replication), to move cation, move the court, upon such notice as shall in that behalf for a decree be prescribed by any general order of the Lord or decretal Chancellor, for such decree or decretal order as he may think himself entitled to; and the plaintiff and Affidavits defendant respectively shall be at liberty to file may be filed. affidavits in support of and in opposition to the motion so to be made, and to use the same on the