46 When it will be refused. Replication and subse ings. N. S. 323). But see M'Sweeney v. Ahern, 1 Ir. L. T. 645, as to the practice in the Common Pleas. In replevin, however, the replication being in the nature of a defence, a motion for leave to file several replications need not be upon notice (Craig v. Murtagh, 7 Ir. C. L. R. 506). (w) Where the question can be raised by taking issue leave to reply will be refused. Thus leave to reply a traverse will not be given (Murphy v. Nugent, 6 Ir. Jur. O. S. 302). So also there is no necessity for replying a traverse of the averment of readiness and willingness in a defence of tender (Bennett v. Parker, Ir. R. 2 C. L. 89). Nor will leave be given to reply excess to a defence of son assault demesne (Hughes v. Shaw, 7 Ir. Jur. O. S. 292). Leave will, however, be always given to reply or rejoin where there is a bona fide question raised (Egan v. Kenelly, 1 Ir. Jur. N. S. 152; Daly v. Nolan, 7 Ir. Jur. O. S. 26). As to new assigning, see Keaney v. Tottenham, Ir. R. 2 C. L. 45; Tallon v. Harris, 9 Ir. Jur. N. S. 34; Tracey v. Cruise, Ir. R. 1 C. L. 576. 49. Every replication and subsequent pleading shall be quent plead pleaded, and notice of the filing, with a copy thereof, shall be served, and the particulars of any payments relied upon shall be indorsed or annexed thereto in a similar manner to that herein-before prescribed in respect of the defence, so far as the same shall be applicable thereto (x). Within what tume the replication is to be filed. Plaintiff's Course after filing replication. Appointing next friend for plaintiff being a minor or lunatic. How infants and lunatics may sue. (x) See ante, sections 39, 41, and 45, and the notes thereto as to the form, &c., of the defence. No time is fixed within which a replication, &c., must be filed, further than that the plaintiff may be ruled under the 106th stion of the Act if he do not go to trial within the time therein fixed. As to whether a plaintiff must, in order to obtain judgment after replication, serve notice of trial, or whether he may rule the defendant to rejoin or demur, and in default mark judgment, see Blunt v. Evans, 7 Ir. C. L. R. 97; S. C. in Cam. Scacc., 3 Ir. Jur. N. S. 340. As a general rule notice of trial must be served. 50. In any case in which the plaintiff shall be a minor or lunatic (y), and before the filing of the summons and plaint as a pleading, a consent in writing, signed by some fit and proper person, to act as next friend to such minor or lunatic, together with an affidavit to verify the signature of such person, shall be lodged in the office of the Clerk of the Rules, who shall thereupon enter a rule that such person shall be at liberty to sue as next friend for such minor or lunatic (3), and the name of such next friend shall be mentioned in the said summons and plaint as next friend to said minor or lunatic: provided always, that the Court or a Judge shall and may alter or discharge such rule in case it shall seem necessary or proper (a). (y) At Common Law an infant could not sue or appear except by prochein amy or guardian. A lunatic, on the other hand, might sue and appear in the same manner as other persous (Beverley's Case, 4 Co. 124). Under the Statute, however, a lunatic must now sue and defend by next friend and guardian. To proceed without appointing a next friend or guardian in cases where Consequence such a step is necessary, renders the proceedings irregular, if not void. And of not appointing a where an attorney appeared and defended for an infant without appointing next friend. a guardian, the proceedings were set aside, and the attorney ordered to pay the costs (Keegan v. Shaw, Ir. R. 2 C. L. 637); and see Hunter v. Hunter, Ir. R. 3 C. L. 40, as to the steps to be taken in such a case. See also the note to the next section, and the case of Callisher v. Mason, referred to there. The next friend of an infant plaintiff is liable to the costs of the action Liability of next friend { (Newton v. London, Brighton, &c., Railway Co., 7 D. & L. 328). It was to costs. formerly held that the infant himself was not liable (Grave v. Grave, Cro. Eliz. 33). But now it would appear that if taken in execution he will not be discharged, but left to his writ of error (Dow v. Clarke, 1 C. & M. 860). On the other hand, an infant defendant is liable to the plaintiff for costs and damages (Gardiner v. Holt, 2 Str. 1217); and it would seem the guardian is not (Ferguson v. Wilson, 4 Ir. Jur. O. S. 376). Where an action is brought by a lunatic, and money paid into Court, the Court will, where the circumstances require it, order the money, or a portion of it, to be paid out to the wife of the lunatic (Rock v. Slade, 7 Dowl. 22; Glidden v. Treble, 9 C. B. N. S. 367); or to the person in whose charge the lunatic is living (Little v. Hewatt, Ir. R. 1 C. L. 566; Bray v. O'Keeffe, 6 Ir. Jur. O. S. 246). See also In re Barrett, 7 Ir. Jur. O. S. 22, where the Court ordered the money to be invested. Paying money into action brought by Court where lunatic. How next friend ap pointed. At what stage of the the appointproceedings ment to be made. (z) It is necessary to obtain a rule in the manner pointed out before a person can act as next friend or guardian (Byrne v. Walsh, 5 Ir. L. R. 217), and in order to obtain it satisfactory evidence of the fitness of the person propo d to be appointed must be furnished to the Clerk of the Rules by the attorney applying for the rule (Ronayne v. Perrin, 10 Ir. C. L. R. App. 36). In the case of an infant or lunatic plaintiff the name of the next friend need not be stated in the writ of summons and plaint before service; it is sufficient if it be inserted at the time of filing (Grady v. Hunt, 3 Ir. C. L. R. 522; Callisher v. Mason, 1 Ir. L. T. 45); if not inserted then, an application to the Court for leave to insert it must be on notice (Phillips v. M'Evoy, 7 Ir. Jur. O. S. 111). See also the 10th G. O. of 1854, as to the effect of an order to prosecute or defend for an infant. (a) The guardian or prochein amy is in effect an officer of the Court, and Removing may be removed by an application to the Court at the instance of the infant, if a proper case be made out. If the prochein amy be insolvent in circumstances, the Court will not necessarily order security for costs to be given (Yarworth v. Mitchell, 2 D. & R. 423); but it may either remove him (Savage v. Mapother, 10 Ir. Jur. N. S. 117), or stay the proceedings till some proper person is appointed, or reasonable efforts made to procure one (Duckett v. Satchwell, 12 M. & W. 779). As to removing the guardian of an infant defendant, see Ferguson v. Wilson, 4 lr. Jur. O. S. 376. Where a prochein amy or guardian is removed, and another appointed, the change ought to be suggested, or noticed upon the record (Davies v. Lockett, 4 Taunt. 765). 51. In any case in which a defendant served with any summons and plaint shall be a minor or lunatic, the like proceeding shall be taken to appoint a guardian to defend for such minor or lunatic before filing any defence or demurrer, guardian or Lext friend. Appointing a defendant being a guardian for minor or lunatic. Marking a judgment against an infant defen dant. Security for costs, when and how to and the name of the person so appointed shall be mentioned in the defence as guardian to such minor or lunatic (b). (b) As to the necessity of appointing a guardian to an infant defendant, and the manner in which the appointment is made, see the notes to the last section. The guardian need not be appointed until the time for filing the defence; and an infant defendant may, consequently, move to compel the plaintiff to give security for costs without appointing a guardian (Callisher v. Mason, 1 Ir. L. T. 45). As to the liability of the guardian for costs, see Ferguson v. Wilson, ubi supra. Notwithstanding the provisions of sects. 96, 98, post, it would appear to be irregular to mark a judgment by default against an infant, unless a guardian has been appointed (Jarman v. Lucas, 15 C. B. N. S. 474). And the Court will not, in cases within the 98th section, put the infant to his writ of error, but will set aside the judgment (Carr v. Cooper, 1 B. & S. 230); and see M Master v. M'Assey, 9 ir. C. L. R. App. 12. 52. Any defendant served with any writ of summons and plaint in any action shall thereupon be deemed to be in Court be obtained. for the purpose of making application to the Court or a Judge to compel the plaintiff to give security for costs, and for other like purposes: provided that no order for security for costs. shall be made by reason of any plaintiff being resident out of the jurisdiction of the Court, at the instance of any defendant, unless upon a satisfactory affidavit that such defendant has a defence upon the merits (c). Security for costs. When plaintiff resident out of jurisdiction. Temporary residence within jurisdiction. Temporary absence. (c) Applications to compel a plaintiff to give security for costs are of frequent occurrence, and it will, therefore, be well to state here some of the cases in which such an order may be obtained, and how and in what manner the application is to be made. As a general rule, when the plaintiff is resident out of the jurisdiction of the Court, the defendant may, it he has a defence upon the merits, obtain an order to stay the proceedings until security for costs be given, and it is no answer to the application that the plaintiff is possessed of considerable property within the jurisdiction (Hickman v. Forde, 8 Ir. Jur. N. S. 133; Nagle v. Power, 1 Jones, 420); but in England an order was refused where the plaintiff was possessed of property within the jurisdiction of a real or permanent nature, available to process (Swinbourne v. Carter, 23 L. J. Q. B. 16). In Nagle v. Power, ubi supra, the Court refused the order, the plaintiff consenting to allow the defendant to set off the rent payable by him against any costs that he might become entitled to. The order will be made only when the plaintiff is actually resident out of the jurisdiction; and if he have a temporary residence within the jurisdiction at which he is residing, he will not be compelled to give security (Tom v. Nagle, 13 Ir. C. L. R. App. 38; Allain v. Chambers, 8 Ir. C. L. R. App. 7; Jones v. Haslem, 11 Ir. Jur. N. S. 37; Redmond v. Mooney, 7 Ir. Jur. N. S. 277); in which latter case the plaintiff had resided for fourteen years in America, and had, on his return to Ireland, only taken lodgings. When the absence of the plaintiff out of the jurisdiction is merely temporary, he will not be ordered to give security for costs (Taylor v. Fraser, 2 Dowl. 622). Notwithstanding that the plaintiff is actually resident abread, no order officer. will be made if he be a Peer (Marquis of Donegal v. Ingram, 5 Ir. Jur. O. S. 395: Earl of Kingston v. Sheehy, Hay. & Jon. 358), or a naval or mili- Military tary officer engaged abroad in the public service (Miller v. Young, 1 L. Rec. O. S. 338), provided his domicile be Irish (Chappell v. Watts, 29 L. J. Q. B. 167), or a seafaring man with an occasional residence within the Sailor. jurisdiction (Conway v. Wilson, 2 Ir. C. L. R. 47; Keller v. Slattery, Hay & Jon. 577), with which compare Kerr v. Perry, 6 Ir. Jur. N. S. 239). Where there are several plaintiffs, if any one of them reside within the Several plaintiffs. jurisdiction, security will not in general be ordered to be given (Orr v. Bowles, 1 Hodges 23; M'Connell v. Johnston, 1 East, 431); but an order will be made where the action is brought by husband and wife, if the hus- Husband and band be resident abroad, although the wife be resident here (Habgood v. wite. Paul, 8 Ir. C. R., Ap. 33). upon the merits. Where security for costs is sought for by reason of the plaintiff's residence Defence abroad, the Statute expressly requires that the defendant must have a defence upon the merits. A defence of infancy is a meritorious defence within the meaning of the section (Dickson v. Buller, 9 Ir. C. L. R., Ap. 13). So also a defence of set-off (Martin v. Titmarsh, 6 Ir. Jur. O. S. 269), or a defence of tender (Anon., 7 Ir. Jur. O. S. 164). And it has been held that it is sufficient if the defendant have a defence to part of the action, as for fence. instance, where he pays money into Court (The United General Life Assurance Company v. Beale, 8 Ir. C. L. R. Ap. 30; Fox v. Atkinson, 7 Ir. Jur. O. S. 259; Mahony v. Kelcher, 6 Ir. Jur. O. S. 239). Partial de interpleader. Security for costs where plaintiff resident within jurisdiction. A plaintiff resident out of the jurisdiction will be compelled to give se- Security for curity for costs, notwithstanding that the action has been brought by order costs in, of the Court of Chancery (Swan v. Reade, 11 Ir. Jur. N. S. 58). So will Writ of a claimant in an interpleader suit (Hoban v. Munro, Ir. R. 2 C. L. 74), Revivor. or the plaintiff in a writ of revivor (O'Brien v. Upton, 4 Ir. L. R. 419; Archdall v. Supple, 3 Ir. L. R. 287). As to giving security when a party appeals to the Court of Error, see sect. 172, post, and Moore v. Great S. IV. Railway Co., 9 Ir. C. L. R. Ap. 6. And as to giving security upon a suggestion of breaches, see Thompson v. Donnely, 6 Ir. L. R. 30. Although a plaintiff be resident within the jurisdiction, he will be ordered to give security for costs in certain cases. The order will not, however, be made (except in cases falling within 33 & 34 Vict.. c. 109), merely because the plaintiff is a pauper, or bankrupt, or insolvent (Delahay v. Kelly, 2 Ir. C. L. R. 34), and this is so, even in a qui tam action (Gregory v. Elgin, 2 C. & M. 336). But if the plaintiff, in addition to being a pauper, has brought the action as the nominee of, or on behalf of others, the action will be stayed until security for costs be given (Rice v. Dublin and Wicklow Railway Co., 8 Ir. C. L. R. 155; Larkin v. Lawder, 7 Ir. L. R. 227; Egan v. Kirkaldy, 3 Ir. L. R. 542). Compare with these cases M'Caffrey v. Brennan, 10 Ir. C. L. R. 159; Sutton v. Purdon, 7 Ir. Jur. N. S. 324. And in actions of ejectment, a defendant taking defence may be compelled to give security for costs if it appears that the defence has Defendant in ejectment. been really taken in the name of the nominal defendant, by other persons, for the purpose of avoiding costs (Stewart v. Bartholomew, 1 Ir. L. R. 377; Doe v. Richardson, 2 Huds. & B. 117). Under the 23 & 24 Vict., c. 154, sec. 75, an overholding tenant may, in the cases provided for there, be ordered to give security for costs. In a qui tam action, if the proceedings Qui tam are collusively taken in the name of a nominal plaintiff, the Court will make an order for security for costs (Browne v. Redmond, 11 Ir. C. L. R. Ap. 26; E Nominal plaintiff. actions. Limited Manner in cation is to be made. 52nd G. O. Preliminary notice. Notice of motion. and see Powell v. Reynolds, 3 Ir. Jur. O. S. 59, 2 Ir. Jur. O. S. 292, as to ordering security to be given in actions for penalties under the 3 & 4 Vict. ch. 108, sect. 89. By the 25 & 26 Vict. ch. 89, sec. 69, if a limited company be plaintiff, the Court may stay the action until security for costs be given, if it appears that there is reason to believe that the assets of the company will be insufficient to pay the defendant's costs in case he succeeds. Finally, the defendant may compel the plaintiff to give security for costs in the cases provided for by the 33 & 34 Vict. c. 109, which see post in the Appendix. Assuming that the defendant is entitled to call upon the plaintiff to give which appli- security for costs, the next question is-when and in what manner the application is to be made? This is provided for by the 52nd G. O. of 1854, which directs that "where a defendant served with a summons and plaint shall require security for costs from the plaintiff, he shall be at liberty to apply by notice to the plaintiff for such security; and in case the plaintiff shall not, within twenty-four hours after service thereof, undertake by notice to comply therewith, the defendant shall be at liberty to apply to the Court or a Judge for such security, by motion on notice, grounded upon affidavit; and every such application shall be made before defence filed, unless the Court shall, under special circumstances, think fit to make such order, after defence filed." Accordingly, when a defendant requires security for costs, his first step is to serve the preliminary notice. In cases where the order is sought on the grounds of the plaintiff residing out of the jurisdiction, the plaintiff, when served with the notice, has a right to call on the defendant for an affidavit of merits, and if this be not complied with it may be grounds for refusing the application, or making the defendant pay the costs of the motion (Samuelson v. Andrews, Ir. R. 3 C. L. 575; Coveney v. Gibson, 6 Ir. C. L. R. 130). Supposing that the plaintiff, when applied to, fails to undertake to give security, the defendant's next step is to serve notice of motion. In actions brought under the Summary Procedure on Bills of Exchange Act, the defendant should, in the first instance, have obtained liberty to appear and defend (Jackson v. Burton, 8 Ir. Jur. N. S. 131; Martin v. Wilson, 7 Ir. Jur. N. S. 335). The notice of motion should not be served till the expiration of twenty-four hours from the service of the preliminary notice (Jack v. Noble, 17 Ir. C. L. R. 381). It must be served before the filing of the defence, and an omission to do so is not cured by the fact of the preliminary notice having been served (Jacob v. Bernal, 8 Ir. Jur. N. S. 46; Bush v. Curran, 9 Ir. C. L. R. Ap. 30; Lunham v. Dublin, Wicklow, and Wexford Railway Co., 2 Ir. L T. 24). Where the plaintiff omitted to file the plaint for a period of four months, the defendant was held entitled to require security for costs, though the application was not made until after the filing of the plaint (blake v. Blake, 1 Ir. L. T. 701). Obtaining an extension of the time to plead is not a waiver of the defendant's right to apply for security (Griffith v. Slator, 16 Ir. C. L. R. Ap. 1; Clarke v. Riordan, 9 Ir. C. L. R. Ap. 34). Neither is the giving of an undertaking to appear and defend by the defendant's attorney (Clark v. Marsh, 1 Ir. L. T. 622). But if after serving notice of motion the defendant files his defence, he thereby waives his right (Beausang v. Condon, 13 Ir. C. L. R. Ap. 37); unless with the copy of the defence he serves a notice, stating that the defence is tiled without prejudice to his motion (Gallon v. Armstrong, 9 Ir. C. L. R. Ap. 46; Taylor v. Low, 3 Ir. C. L. R. 223). And if the defendant has ruled the plaintiff under When to be served. |