A pauper plaintiff is in the same position as other plaintiffs when deprived of costs under the County Courts Acts, for he may sue in those courts as a pauper.(1) When he is allowed to amend, he cannot insist as a matter of righ. upon doing so, without payment of costs. (2)

Dispaupering plaintiff and compelling him to pay costs. Where the plaintiff acts vexatiously, or seems to have no good cause of action, the proper course is to dispauper him, which is done by making the judge's order a rule of court, and then moving to discharge it.(3) Thus, where he withdrew the record, on the ground of its requiring amendment, he was dispaupered for acting vexatiously, for he might have applied to the judge at the trial to amend.(*) But though he may be liable to pay the costs of the day, if this arose from mere accident, the court will not dispauper him merely on that ground.(5) The dispaupering of a plaintiff has no retrospective effect, and he is liable only for costs subsequently incurred.(®) "Where a pauper omits to proceed to trial pursuant to notice, he may be called upon by a rule to show cause why he should not pay costs, though he has not been dispaupered, and why all further proceedings should not be stayed until such costs shall be paid."(7) Or if he has conducted himself vexatiously, he may be called on by the same rule to pay the costs of the day, and be dispaupered.(*) The pauper does not incur costs within the above rule of court, if he duly countermand notice of trial;(9) but he does so by withdrawing the record, because it required amendment, (10) or because the venue was wrongly laid. (") So he incurs these costs, when his attorney's clerk had by mistake not entered the record, and the cause could not be tried.(12) And the privilege of exemption from costs does not apply to collateral proceedings; thus where, having been obliged to pay the costs of the day, incurred as he alleged by his attor

Chinn v. Bullen, 8 C. B. 447.

(2) Foster v. Bank of England, 2 D. & L. 790; 6 Q. B. 878. (3) Hawes v. Johnson, 1 Y. & J. 10.

() Facer v. French, 5 Dowl. 554.

Hodges v. Toplis, 2 C. B. 921; 3 D. & L. 786.

(6) Pratt v. Delarue, 10 M. & W. 512.

(7) Rule Pr. 122, H. T. 1853.

(*) Bedwell v. Coulsting, 3 D. & L. 767.

Doe d. Pugh v. Price, 1 Bail C. R. 311.

(16) Facer v. French, 5 Dowl. 554; Gore v. Morphew, 8 Dowl. 137; Doe Lindsay v. Edwards, 2 Dowl. 471.

(11) Thompson v. Hornby, 9 Q. B. 978.

12) Hodges v. Toplis, 2 C. B. 921 3 D. & L. 786

ney's negligence, he obtained a rule calling on his attorney to repay him, which rule was discharged, he was held not exempted from paying the costs of the rule.(1)

Where the plaintiff in an action for slander, to which a justification was pleaded, was nonsuited on the merits, and brought a second action in formâ pauperis for the same cause of action, without paying the costs of the first, the court stayed the proceedings till the costs should be paid.(2)

(1) Bell v. Port of London Assurance Company, 1 L. M. & P. 691.

(2) Hoare v. Dickson. 6 D. & L. 577; Haigh v. Paris, 4 D. & L. 325; Weston v. Withers, 2 T. R. 512; Hullock on Costs.

CHAPTER II.

INFANTS.

1. Plaintiffs.

AN infant cannot sue in person, nor has he power to appoint an attorney to sue in his name, and the defendant may plead in abatement on that ground; (1) but the court will appoint a prochein amy or guardian for the purpose.(2) If there is a legal guardian, he is generally appointed; but if he cannot act, then any other person with his consent may do so.(3) No authority to the prochein amy from the infant to sue is necessary, though the infant be on the very eve of majority; but if there was fraud, the court might interfere.(*) The appointment is generally made before the writ of summons is issued, and is obtained by the person, who is to act as guardian or prochein amy, going with the infant before a judge at chambers, who, if in the Common Pleas, will grant an order for admission, or in the Queen's Bench or Exchequer will grant his fiat for a rule, which may be drawn up on taking the fiat to the Master of the court. Or if the prochein amy cannot attend, the order of admission or rule may be obtained from a judge at chambers on production of a petition to the court in the name of the infant, with a consent to act signed at the foot thereof by the prochein amy, and an affidavit, verifying the signature, thus:

(1) 2 Saund. 212 a (5).

(2) 3 Ed. 1, c. 48; 13 Ed. 1, c. 15; Cro. Car. 161; Fitzh. N. B. 27 J.; 2 Inst. 261; Roll. Abr. 287, 288.

(3) Claridge v. Crawford. 1 D. & R. 13.

(4) Morgan v. Thorne, 7 M. & W. 400: 9 Dowl. 228.

Form of Petition to sue by Prochein Amy.

[State title of court, and cause,(1) and address of petition, as ante,

p. 632.]

The humble petition of A. B., the under the age of twenty-one years,

Showeth,

plaintiff in this suit, an infant

That your petitioner has, as he is advised, a good cause of action against the said C. D., for [state cause of action, as in the forms, ante, p. 131] and that your petitioner is about to commence an action against the said C. D. in this honourable court, for the same, but as your petitioner is an infant under the age of twenty-one years, to wit, of the age of years:

Your petitioner therefore humbly prays your lordship, [or in Exchequer, "your honours,"] to admit him to prosecute the said action by P. F., your petitioner's next friend.

And your petitioner will ever pray, &c.

Witness, W. P.

A. B.(2) [or, A. B., signed by me for bim, (or her) being his next friend.

Form of Consent of Prochein Amy.

P. F.]

I hereby consent and agree that the above-named A. B. shall be at liberty to prosecute this action by me, as his next friend, according to the prayer of the above petition. Witness my hand, this

18

Witness, W. P.

Form of Affidavit verifying Signatures.

I. W. P., of

[Title of court and cause.]

day of

P. F.

make oath and say that A. B., the above-named plaintiff did on, &c., duly sign the petition hereunto annexed, marked A. in my presence, [or state that the prochein amy signed it, the infant being unable to do so, stating why. See n. 2] and I further say that at the same time I was present, and did see P. F., the person mentioned in the prayer of the said petition, duly sign the consent of agreement thereunder written as the next friend of the said A. B. Sworn, &c.

W. P.

"A special admission of prochein amy or guardian to prosecute or defend for an infant shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified.”(3)

(1) The cause is intituled solely in the infant's name as plaintiff. (2) It seems the prochein amy may sign the petition in the name of the infant: Morgan v. Thorne, 7 M. & W. 408. But in such a case perhaps the affidavit should state the reason why the infant cannot sign, as in Eades v. Booth 8 Q. B. 718; 3 D. & L. 770.

Declaration.]-A copy of the order of admission or rule of court is annexed to and delivered with the declaration ;(1) and the fact ought also to be alleged in the declaration.

Form of Declaration.

·Į A. B. by P. F., who is admitted by the Court of Our Lady to wit. S the Queen before the Queen herself, [or, "by the justices," or "by the barons,"] here as the next friend of the said A. B. who is an infant under the age of 21 years, to prosecute for the said A. B. in this behalf, complains, &c.

Change of prochein amy.]-As the prochein amy is appointed by, and is an officer of the court, if the infant wishes to remove him, he must apply to the court for that purpose; and an entry of the change should be made on the record. (*) But on the plaintiff coming of age, he may, it seems, remove the prochein amy of his own authority, and appear thereafter by his own attorney.(3)

Security for costs.]-The plaintiff's attorney may be compelled to disclose the place of residence of the prochein amy or guardian,() and the proper course for that purpose is to apply at chambers for a stay of proceedings until the address is given.(3) But the mere fact of the prochein amy not being found at the address given by his attorney is no ground for calling for security.() The court will order the prochein amy to give security for costs, if it is sworn that he is insolvent.(7) It is also a good ground for applying to a judge to revoke the appointment, and stay the proceedings, until a responsible person is obtained,(") which the court will do, if it appear that the prochein amy appointed had been long insolvent, and had not exerted himself to obtain a responsible person to act.(") The infant plaintiff is, it seems, never

(1) Otherwise it will be a ground of error, if judgment be given against the infant; Bird v. Pegg, 5 B. & Ald. 418; See 1 Lev. 224; 2 Sellon, 66.

(2) Davis v. Locket, 4 Taunt. 765; Morgan v. Thorne, 7 M. & W. 400.

(3) Bac. Abr. "Infant," K. 2.

(*) Tomlin v. Brookes, 1 Wils. 246.

(5) Hayes v. Carr, 3 M. & Gr. 852; 1 Dowl. N, S. 522.

() Ibid.

(7) Mann v. Berthen, 4 Moo. & P. 215, overruling Yarmouth v. Mitchell, 2 D. & R. 423.

(8) Watson v. Fraser, 8 M. & W. 660.

() Duckett v. Satchwell, 12 M. & W. 779; 1 D. & L. 980.