Compare with Sec. 445.

Neither a married woman, nor an infant, nor the plaintiff in the suit, although the parent of the infant defendant, can be assigned as a guardian; neither, generally, can a person out of the jurisdiction. Smiths C. P., p. 484.

Guardian neglecting his duty may be removed. Costs.

458. If the guardian for the suit of a minor defendant does not do his duty, or if other sufficient ground be made to appear, the Court may remove him, and may order him to pay such costs as may have been occasioned to any party by his breach of duty.

Το pay such costs. A guardian is liable for the costs of any proceedings originated by him, and for vexatious or improper conduct. Smiths C. P., p. 484.

in

Appointment place of guardian dying pen dente lite.

460. When the Guardian, ad litem of minor representative of deceased judgment-debtor.

Before decree, next friend or guardian ad litem not to receive money without leave of Court and giving security.

Next friend or guar

dian ad litem not to compromise without leave of Court.

Compromise without leave voidable.

Application of sections 440 to 462 to persons of unsound mind.

459. If the guardian for the suit dies pending such suit or is removed by the Court, the Court shall appoint a new guardian in his place.

enforcement of a decree is applied for against the
heir or representative, being a minor, of
a de-
ceased party, a guardian for the suit of such minor
shall be appointed by the Court, and the decree-
holder shall serve on such guardian notice of such
application.

461. No sum of money or other thing shall be received or taken by a next friend or guardian for the suit at any time on behalf of a minor, at any time before decree or order, unless he has first obtained the leave of the Court, and given security to its satisfaction that such money or other thing shall be duly accounted for, to, and held for the benefit of, such minor.

shall, without the leave of the Court, enter into any 462. No next friend or guardian for the suit agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian.

Any such agreement or compromise entered into without the leave of the Court shall be voidable against all parties other than the minor.

463. The provisions contained in sections 440 to 462 (both inclusive) shall, mutatis mutandis, apply in the case of persons of unsound mind, adjudged to be so under Act No. XXXV of 1858, or under any other law for the time being in force.

A person of unsound mind, not found so by inquisition, may sue by his next friend. Light v. Light, 25 Beav., 248. An idiot or lunatic, found so by inquisition, sues by the committee of his estate; and if it is necessary to file a bill against such lunatic or idiot, the

committee of the estate is made a joint defendant with him. Smiths C. P., p. 311.

The Act referred to here is one "to make better provision for the care of the Estates of Lunatics not subject to the jurisdiction of the Supreme Courts of Judicature."

464. Nothing in sections 442 to 462 applies to any minor or person of unsound mind, for whose person or property a guar dian or manager has been appointed by the Court of Wards or by the Civil Court under any local law.

Wards of Court.

Observe that Secs 440 and 441 are not made inapplicable

to these persons.

CHAPTER XXXII.

SUITS BY AND AGAINST MILITARY MEN.

Officers or soldiers who cannot obtain leave may authorize any person to sue or

defend for them.

465. When any officer or soldier actually serving the Government in a military capacity is a party to a suit, and cannot obtain leave of absence for the purpose of prosecuting or defending the suit in person, he may authorize any person to sue or defend in his stead.

The authority shall be in writing and shall be signed by the officer or soldier in the presence of (a) his commanding officer or of the next subordinate officer, if the party be himself the commanding officer, or (b) where the officer or soldier is serving in military staff employment, the head or other superior officer of the office in which he is employed. Such commanding or other officer shall countersign the authority which shall be filed in Court.

When so filed, the countersignature shall be sufficient proof that the authority was duly executed, and that the officer or soldier by whom it was granted could not obtain leave of absence for the purpose of prosecuting or defending the suit in person.

Explanation. In this chapter the expression 'commanding officer' means the officer in actual command for the time being of any regiment, corps, detachment or depôt, to which the officer or soldier belongs.

The section has been amended by making it plain that the chapter applies only to the cases of soldiers actually on military duty, and in other particulars.

Is a party to a suit. To a suit already instituted? The wording of this section and the next still leaves this point doubtful

to me.

For the purpose of prosecuting.-Not also of instituting? Formerly the words were "to commence, conduct and manage the

suit or the defence."

Person so authorized may act personally or appoint pleaders.

466. Any person authorized by an officer or soldier to prosecute or defend a suit in his stead may prosecute or defend it in person in the same manner as the officer or soldier could do if present; or he may appoint a pleader to prosecute or defend the suit on behalf of such officer or soldier.

A pleader. Not also a "recognized agent." Vicarius non habet vicarium.

467. Processes served upon any person authorized by an officer or soldier, as in section 465, or upon any pleader appointed as aforesaid by such person to act for, or on behalf of, had been served on the party in person or on his such officer or soldier, shall be as effectual as if they pleader.

Service on person so authorized, or on his pleader, to be good

service.

Service on officers and soldiers.

468. When an officer or solder is a defendant, the Court shall send a copy of the summons to his commanding officer for the purpose of being served on him. The officer to whom such copy is sent, after causing it to be served on the person to whom it is addressed, if practicable, shall return it to the Court with the written acknowledgment of such person endorsed thereon.

If from any cause the copy cannot be so served, it shall be returned to the Court by which it was sent, with information of the cause which has prevented the service.

469. If, in the execution of a decree, a warrant of arrest is to be executed within the limits of a cantonment, garrison, Execution of warrant military station or military bázár, the officer charged of arrest in canton- with the execution of such warrant shall deliver the ments, &c. same to the commanding officer.

The commanding officer shall back the warrant with his signature, and if the person named therein is within the limits of his command shall cause him to be arrested and delivered to the officer so charged.

The person.-Whether a soldier or a civilian. But see the Mutiny Act as to the arrest of a soldier.

CHAPTER XXXIII.

INTERPLEADER.

The right of a man to call upon two or more claimants to 'interplead' and settle their dispute between themselves, without involving him in it, was recognized by the common law, but to a very limited extent, as the technical rules of pleading excluded the principle except in two cases, namely, where a chattel had come into a mans possession by accident or by bailment. In equity, where these rules did not exist, the operation of the principle was extended to all cases where the same thing, debt or obligation was the subject of

two claims, and the person seeking relief was threatened with double vexation in respect of one and the same liability.

The Statute 1 & 2 Will. 4, c. 58, enables courts of law to give relief by interpleader on the application of a defendant in any action of assumpsit, debt, detinue, or trover, showing that he claims no interest, and that the right is claimed by, or supposed to belong to, some third party who has sued, or is expected to sue, and that the defendant does not collude with such third party, but is ready to bring into court or otherwise dispose of the subject-matter as the court shall direct. This enactment does not affect the jurisdiction in equity, though it has greatly diminished the necessity for bills of interpleader where both the claims are legal.

The Common Law Procedure Act, 1860, considerably enlarged the jurisdiction of the Common Law Courts in respect to interpleader, and the new Rules of the Supreme Court (Order I, Rule 2) direct that with respect to interpleader the procedure and practice now used by courts of common law under the above two Acts shall apply to all actions and all divisions of the High Court of Justice, and "the application by a defendant shall be made at any time after being served with a writ of summons and before delivering a defence." Presumably, therefore, an action of interpleader is no longer necessary, if it is not actually precluded.

Among the general principles which have been acted upon in the application for an interpleader between claimants generally, are-That the applicant be already defendant in an action at the suit of one of the claimants; that the claims of both claimants be in respect of the very same matter, Slaney v. Sidney, 14 M. & W., 800; that the applicant claim no interest in the matter in dispute (ib.); that the applicant be not colluding with either party. Belcher v. Smith, 9 Bing., 82.

470. When two or more persons claim adversely to one another the When interpleadersame payment or property from another person, whose only interest therein is that of a mere stakesuit may be instituted. holder and who is ready to render it to the right owner, such stakeholder may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to whom the payment or property should be made or delivered, and of obtaining indemnity for

himself:

Provided that if any suit is pending in which the rights of all parties can properly be decided, the stakeholder shall not institute a suit of interpleader.

I apprehend that, as formerly was the case in England, it is not necessary that an action or suit should have been actually commenced by either or any of the claimants against the party seeking relief: but it is sufficient that a claim is made against him, and that he is in danger of being molested by double vexation. See Langston v. Boylston, 2 Ves. Jr., 107; Stevenson v. Anderson, 2 V. & B., 407; Morgan v. Marsack, 2 Mer., 107; Angell v. Hadden, 15 Ves., 244, 16 Ves., 202; Fairbrother v. Prattent, Dan., 64, 5 Pri., 303.

Kerrs Inj., p. 118, tells us :-The equity on which the right to support a bill of interpleader is founded, is that there is a conflict between two or more persons severally claiming the same debt, duty, or obligation by different or separate interests, and that the person who is liable to discharge the debt, duty, or obligation does not know which of the claimants is in fact entitled, but is threatened with double vexation by having two or more processes going ou against him at the same time in respect of a subject-matter in which he claims no interest, and in relation to which he has not incurred any independent liability to either of the claimants. The protection of the Court is therefore sought, on the most obvious equity, that the claimants should be put to interplead and settle the contest between themselves, without involving the plaintiff in a dispute in which he is not interested to any greater extent than as a mere stakeholder. Langston v. Boylston, 2 Ves. Jr. 109; Martinius v. Hellmuth, Coop. 245; Stevenson v. Anderson, 2 V. & B. 407; Pearson v. Cardon, 4 Sim. 218, 2 R. and M. 609; Glyn v. Duesbury, 11 Sim. 147; Crawford v. Fisher, 1 Ha. 346; East and West India Dock Co. v. Littledale, 7 Ha. 60; Crawshay v. Thornton, 2 M. and C. 19; Jones v. Thomas, 2 Sm. and G. 190; Desborough v. Harris, 5 D. M. and G. 439, 455; Nelson v. Barter, 2 H. and M. 334, 33 L. J. Ch. 705.

Claim adversely.-It appears from Kerrs Inj., p. 121:-The claims must be not only in respect of the same debt, duty, or thing, but must, moreover, be in reality conflicting claims. A mere pre