most convenient mode of service possible was here in- Parties, tended. generally. A devisee of realty, also a legatee, propounded a will in the latter capacity. The defendant, heir-at-law and next of kin, opposed probate as next of kin only. The citation of the parties in the capacities in which they did not appear, was treated by the court as a work of supererogation, as the decision was intended under the statute to settle the question once and for all, both as to realty and personalty. On the issuing of other citations to the parties already before it, the court declined to express its opinion further.1 Yet the heir-at-law, though already before the court as party to a proceeding in relation to a will of realty and personalty in another capacity, has been cited to see proceedings, and so also havé devisees under an earlier will.2 As seen, where a will of personalty affects realty also, an affidavit must be filed that the heir-at-law has been cited before a receiver pendente lite is appointed, and his citation prior to receivership is requisite therefore.3 But the Probate Court had power to appoint a receiver of realty, pending a suit in probate concerning the validity of the will.4 Where such a will is that of a bastard, citation of the Queen's Proctor to see proceedings must precede proof in solemn form.5 Citing the Queen's proctor, when? A creditor has only a right to a constat of the deceased's Creditors as parties. estate, and may not dispute the validity of a will, for it is indifferent whether his debt is paid by an executor or administrator. Though he may not oppose a will, he can (Their powers.) 1 Emberley v. Trevanion, 29 L. J., Prob. 142. 2 Lister v. Smith, 32 L. J., Prob. 13; 3 Sw. & Tr. 53 (b). 3 Purdey v. Field, 33 L. J., Prob. 73. C. P. Act, 1857, s. 71, post, Appendix; Grant v. G., 38 L. J., Prob. 55. Wyman v. Ashwell, 29 L. J., 6 Or statement of the amount. 8 Menzies v. Pulbrook, 2 Curt. Parties, generally. When cited? They may not contest an administration. Misjoinder of parties. call on all who have a right to administer before an administration is granted, that they or he as grantee may administer, and so his debt be paid, but he may not deny or contradict a will, nor an interest by relationship.2 He may not, therefore, it appears, take part in a suit, the result of which will be probate of a will or an intestacy, the latter to be followed, doubtless, by a grant to the successful party. Yet creditors having an indirect, but substantial interest, in the probate of a will or codicil, have been cited on leave given.3 They have no right to contest an administration already granted. But a creditor and administrator, i. e., a party already in possession of a grant, may oppose a will. An executor having probate may oppose a later will. Each is then entitled to his costs. 11. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice." 1 Elme v. Da Costa, 1 Phillim. 173. 2 Dabbs v. Chisman, 1 Phillim. 155. 3 Dixon v. Allenson, 3 Sw. & Tr. 573. 4 Newsom, 2 N. C. 15. 5 Dabbs v. Chisman, 1 Phillim. 160 (C). 6 See C. L. P. Act, 1852, ss. 35, 37; 2 Ch. D. 369; Roberts v. Evans, W. N. (9th Feb. 1878), p. 26; and see Rules C. B. (1862), 42: "Either party desiring to alter or amend a pleading must apply to the court upon motion; but if the alteration Rule 13 of the old rules was held not inconsistent with Parties, generally. the practice as to citations to see proceedings under the old probate practice. Its object "was to give the High Court the power, which the amalgamated Courts, or some of them, did not possess, of bringing before it as plaintiffs or defendants persons whose presence was necessary in order to do complete justice." It was held not to be a substitution for, but an addition to, the old practice of citing persons as interveners.2 12. Any application to add or strike out or substitute a plaintiff Striking out or defendant may be made to the court or a judge at any time or substitubefore trial by motion or summons, or at the trial of the action in tion of a summary manner.3 parties. 13. Where a defendant is added or substituted, the plaintiff shall, Amended writ unless otherwise ordered by the court or a judge, file an amended on substitucopy of and sue out a writ of summons, and serve such new de- tion. fendant with such writ or notice in lieu of service thereof in the same manner as original defendants are served. 14. Any two or more persons claiming or being liable as co- Partners. partners may sue or be sued in the name of the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct. Provided that, in the case of a co-partnership which has been dissolved, to the knowledge of the plaintiff, before the commencement of the action, the writ of summons shall be served upon every person sought to be made liable. 15. Any person carrying on business in the name of a firm A person sued apparently consisting of more than one person may be sued in the as a firm. name of such firm. 16. Infants may sue as plaintiffs by their next friends, in the Persons under disability. or amendment required be merely verbal or in the nature of a clerical error it may be made by order upon summons. In re Wartley, 4 Ch. D. 180; Vallance v. Birmingham, &c., 2 Ch. D. 369; see Honduras Rail. Co. v. Lefevre, and Edwards v. Lowther, 2 Ex. D. 301; also the New Westminster Rail. Co. v. Hannah, W. N. 35, on appeal; Norris v. Beazley, 2 C. P. D. 80. As to bringing third parties in, see Rule 11; Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644: Bower v. Hartley, 1 C. P. Act, 1857, s. 61, ante, p. 347. 2 Kennaway v. K., 1 P. D. 150. 3 See Tildesly v. Harper, 3 Ch. D. 273. Parties, generally. Infants. Lunatics. Infants appear by guardian. Appearance on summons, &c. Next friend. Consent for persons under disability. Proceedings by or against paupers. manner heretofore practised in the Chancery Division, and may, in like manner, defend by their guardians appointed for that purpose. Married women may sue and be sued as provided by the Married Women's Property Act, 1882.1 Of the mother and uncle of a minor, the former being appointed guardian by will and sole executrix, the latter cannot, usually, be appointed guardian ad litem without the citation of the former.1 17. Where lunatics and persons of unsound mind not so found by inquisition might respectively before the passing of the principal act have sued as plaintiffs or would have been liable to be sued as defendants in any action or suit, they may respectively sue as plaintiffs in any action by their committee or next friend according to the practice of the Chancery Division, and may in like manner defend any action by their committees or guardians appointed for that purpose. 18. An infant shall not enter an appearance except by his guardian ad litem. No order for the appointment of such guardian shall be necessary, but the solicitor applying to enter such appearance shall make and file an affidavit in the Form No. 8 in Appendix A., Part II., with such variations as circumstances may require. 19. Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not provided for. No order for the appointment of such guardian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last rule mentioned. 20. Before the name of any person shall be used in 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. 21. In all causes or matters to which any infant or person of unsound mind, whether so found by inquisition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent of the court or a judge by the next friend, guardian, committee, or other person acting on behalf of the person under disability, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by any committee of a lunatic shall be valid as between him and the lunatic_unless given with the sanction of the Lord Chancellor or Lords Justices sitting in lunacy. 22. Any person may be admitted in the manner heretofore accustomed to sue or defend as a pauper on proof that he is not 1 Jenkins, 38 L. J., Prob. 72; 1 P. & D. 690. worth 251., his wearing apparel and the subject-matter of the cause Parties, or matter only excepted. generally. 23. A person desirous of suing as a pauper shall lay a case Qualification. before counsel for his opinion whether or not he has reasonable grounds for proceeding. Case must be counsel. 24. No person shall be permitted to sue as a pauper unless the submitted to case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party, or his solicitor, that the case contains Preliminaries a full and true statement of all the material facts to the best of his before suit. knowledge and belief, shall be produced before the court or judge or proper officer to whom the application is made, and no fee shall be payable by a pauper to his counsel or solicitor. 25. A person admitted to sue or defend as a pauper shall not Immunity be liable to any court fee. from court 26. Where a person is admitted to sue or defend as a pauper the fees. court or a judge may, if necessary, assign a counsel or solicitor, or Counsel and both, to assist him, and a counsel or solicitor so assigned shall not solicitor may be at liberty to refuse his assistance unless he satisfies the court or be assigned to judge that he has some good reason for refusing. paupers by the 27. Whilst a person sues or defends as a pauper no person shall court. take, or agree to take, or seek to obtain from him any fee, profit, or Paupers reward, for the conduct of his business in the court, and any person exempt from who takes, or agrees to take, or seeks to obtain any such fee, profit, any fees. or reward shall be guilty of a contempt of court. 28. If any person admitted to sue or defend as a pauper gives, Dispaupered, or agrees to give, any such fee, profit, or reward, he shall be forth- when? with dispaupered, and shall not be afterwards admitted again in the same cause to sue or defend as a pauper. 29. No notice of motion shall be served or summons issued, and no petition shall be presented, on behalf of any person admitted to sue or defend as a pauper, except for the discharge of his solicitor, unless it is signed by his solicitor. Notice of motion, &c., when ? 30. It shall be the duty of the solicitor assigned to a person Duty of pauadmitted to sue or defend as a pauper to take care that no notice per's solicitor. is served, or summons issued, or petition presented, without good cause. 31. Costs ordered to be paid to a person admitted to sue or defend Pauper's as a pauper shall, unless the court or a judge shall otherwise direct, costs. be taxed as in other cases. To sue as a pauper is a great privilege of law; it belongs only to the necessity arising from absolute poverty and from the absence of any other mode of obtaining justice. It takes away one of the principal checks upon vexatious litigation; the legal claim to so great a privilege ought therefore to be clearly made out, and the pauper must be a necessary party. Paupers cited to see proceedings who are not bound to intervene may not harass executors or |