Drinan v Mannix

• Jurisdiction: Ireland
• Judgment Date: 25 November 1842
• Date: 25 November 1842
• Court: Court of Chancery (Ireland)

Drinan

and

Mannix.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

Where the same person is next friend of a married woman and of infant plaintiffs, he may be compelled to give security for costs upon the ground of insolvency alone.

Where a bill was filed in the Vacation, and the time for demurring to it expired in Vacation, and the defendant filed a demurrer, accompanying it with a notice that it was done without prejudice to the defendant's moving for an order for security for costs, and at the same time served notice of a motion to that effect;—Held, that the filing of the demurrer was not a waiver of the right to compel security for costs.

The bill in this cause was filed on the 3rd of August 1842, by Elizabeth Drinan, the wife of John Andrew Drinan, by George Drinan, her next friend, and by Charles Drinan, Elizabeth Drinan the younger, Mary Drinan, and Teresa Drinan, infants, by the said George Drinan, their relation and next friend, against Charlotte Mannix, and others, amongst whom was John Andrew Drinan.

The defendant, Mrs. Mannix, appeared on the 19th of August, and on the 3rd of September she filed a demurrer to the bill, and at the same time served a notice, stating that the demurrer was filed without prejudice to her right to move to compel the next friend of the married woman and the minors, to give security for costs. At the same time she served a notice that she would make an application to the Court for an order to that effect.

The motion was accordingly made at the Rolls,* grounded on an affidavit, stating that the next friend was insolvent, but not making any charge against his moral character, or alleging that the suit was an improper one for the minors' interest. The insolvency of the next friend was not denied on the part of the plaintiff, and the Master of the Rolls, on the 15th of November 1842, made an order that all further proceedings in the cause should be stayed, until the next friend of the plaintiff, Elizabeth, should give security for costs. From this order the plaintiffs appealed.

Mr. Haig, with whom was Mr. Pigot, Q. C., in support of the appeal.

As one of the plaintiffs here is an infant, the defendant has no right to compel his next friend to give security for costs upon the ground of poverty; Squirrell v. Squirrell (a); Fellows v. Barrett (b). The circumstance that he is also next friend of a married woman, cannot impose that obligation upon him, because that would interfere with the rights of the infant, whose privilege it is to institute a suit by any person, however poor. It is only for the benefit of the infant that the Court will interfere with a suit instituted in his name. If, therefore, the suit

be an improper one for the infant, or if the next friend be a person of immoral character, so that it would be a disadvantage to the infant to be at all connected with him, the Court will interfere, Walker v. Else (a) The practice of the Court with respect to suits instituted in the names of infants, will be found stated in the cases of Stone v. Robinson (b); and Nalder v. Hawkins (c). That explains the decision in Pennington v. Alven (d), which was relied on by the Master of the Rolls. The next friend there was guilty of the grossest immorality, and the suit itself was a most audacious one. It was upon that ground that the Master of the Rolls acted; and it is therefore no authority for compelling the next friend of an infant, against whom no such charge is alleged, to give security for costs. If different persons, were next friends of the married woman and the infant, it is quite clear that the next friend of the latter could not be compelled to give security for costs. As long as there is a single plaintiff from whom the defendant is not entitled to security for costs, he cannot stay the suit, because there are others against whom, if they stood alone, he would have that right. In Walker v. Easterby (e), it was held that when some of the plaintiffs reside within the jurisdiction, the defendant is not entitled to security for costs from one who is out of the country; and the same principle has been acted on by Courts of Law in Doe dem. Bunny v....