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MING A v. SENDERIYA.
C.B., Keyalla, 3,340.
Action by minors by their next friend—Liability for costs—Civil Procedure Code,e. 476.
The duty of deciding whether the next friend or the minor should paythe costs of suit brought by the next friend on behalf- of the minor is.according to section 476 of the Civil Procedure Code, iu the discretionof the judge.
According to the Roman-Dutch Law. a guardian ad litem who hasobtained the authority of the Court to sue for his ward is not liablepersonally for costs, but the property of the ward is.
Bawa, for appellant.
A. Drieberg, for respondent.
This was an action brought by three minors “ by their nextfriend Katulandale Dilo ”, against the defendants for declaration oftitle to a land. The action was dismissed with costs.
The decree entered was that “ the plaintiffs aforesaid be, and“ are hereby, allowed to withdraw from this action, with liberty to” bring a fresh action. And it is further ordered that the said" plaintiff do pay the said defendants their costs of this action,
" Rs. 47.75, as taxed by the officer of this Court. ”
The defendants took out writ against the property of theplaintiffs and seized a certain land.
Plaintiffs, by their proctor, moved that the seizure of the laudbe withdrawn, as their property was not liable, but the propertyof the next friend.
The Commissioner disallowed the motion.
The plaintiffs appealed.
Bawa, for appellants.—Defendants took out writ against theproperty of the minors. That was wrong, because costs should bepaid by the next friend and not levied on the minor’s property.The object of the appointment of a next friend is to have someone responsible for the costs (O’Ki'nealy, p. 404, note to section440). The law is clear that the next friend shall be liable for costsin the first instance to the defendants. It may- or may not bethat he could recover the amount from the minor s estate.Defendant must look to the next friend for costs if the action isagainst the minor’s estate.
Should the next friend go into Court with a frivolous orabsurd suit, he must pay costs himself personally, and our Code,section 476, has provided for that distinctly, the principle beingthat he must not irresponsibly fritter away the minor s estates in
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paying costs on misconceived and frivolous actions without anyrisk to himself. If the action is a bond fide one, on behalf oragainst the minor’s estate, then the next friend may be reimbursedfrom the minor’s estate (Ramanathan, 1843, p. 55).
Drieberg.—The guardian is only liable if he institutes theaction without authority of the Court (Civil Procedure Code,section 476.) It is only in exceptional cases that he is liable, therule being that the minor's estate is liable, and he is free fromresponsibility for costs (Maasdorp'8 Grotius, p. 38).
Cur. adv. vult..
:26th March, 1901. Lawrie, J.—
A comparison of the two authorities—Vanderlinden, 105.■quoted in 2 Thompson, 59, and the Jaffna case reported inHamandthaiu 1843, 56—shows. 1 think, that a guardian whowas without authority of Court is liable personally – in costs,while a guardian who has obtained authority of the Court tosue for his ward is not liable personally, but the property of theminor is liable for costs.
The 476th section of the Civil Procedure Code lays on theCourt before which the action depended the duty of decidingwhether the next frieud or the minor should pay the costs.
In the first case the Commissioner of Bequests, Mr. De Alwis.on 14th March, 1899, appointed Hilo, their mother, next friend tofour minors. It is plain that the Commissioner did not readthe plaint, for, when it came before him for trial, he refused apostponement saying ” this action was misconceived. The * plain-** tiffs say that Lapaya. Pinna, and Kiriya were the owners.
Plaintiffs admit Lapaya’s right to one-third, but they do not
claim under Pinna and Kiriya. ” The Commissioner allowedthe plaintiffs to withdraw the action with -liberty to bring a freshaction, plaintiffs paying defendants’ costs..-
The Commissioner did not exercise the right he had ofordering the next friend personally to pay the costs as if he hadbeen plaintiff. As the order stands, the plaintiffs, who areminors, must pay. But is it right that they should pay? That 1think is very doubtful. The proctor who drew up the plaintand the next friend who instituted the action were careless. Itis hard that the minors should lose their lands for costs of amisconceived case.
In revision. I set aside, as'much of the decree of 31st October1899, as deals with costs,' and remit the case to the Commissioner ofRequests, giving him power to make any order as to costs afterbearing parties as to him mqy seem just. The sum taxed,Rs. 47.75, seems unduly large.
MINGA v. SENDERIYA