Terrell A-G CJ:

The facts and arguments appear sufficiently from the Judgment.

This is an application by Margaret David, an infant by her next friend Juliana van Waardenburg to extend the time for appealing against the judgment of de Buriatte J dated 19 March 1937, notwithstanding that the application is out of time.

In order to get leave the applicant must show merits and must also explain the reasons for delay. As regards the latter, although the Court is strict where the delay has been due to neglect on the part of the solicitors, in this case, the fact that the applicant was in Java, and it was accordingly difficult to obtain instructions, the fact that the time limited for appealing has under the recent amendment to the Rules been reduced to three weeks, and the fact that the applicant is an infant, are matters to be considered, and in my opinion the affidavit in support sufficiently explains the delay that has occurred.

With regard to merits, the application for leave to appeal as a pauper was made by the infant and her next friend by petition dated 14 April 1937. The Registrar having satisfied himself as to the petitioner's means, the papers were sent to Counsel for report, and the matter came before a Judge. The application was heard before Horne J and he decided to allow the applicant and her next friend to appeal in forma pauperis. The question of merits has accordingly been before the Court, and it is not for this Court to retry the issue as to whether there is a prima facie case or not. The applicant therefore has complied with the rule which requires her to show merits before she can be granted extension of time.

The present application was opposed by certain of the beneficiaries on various technical grounds and their objections were supported by Counsel for the trustees.

The first objection was that the applicant appeared in the Court below by a guardian ad litem, that it was for such guardian ad litem to make the present application; and that it could not be made by a different person as next friend until the guardian ad litem had been removed by Order of Court.

Speaking for myself, I am inclined to think that the guardian ad litem was functus officio when the proceedings below were completed. Whether that is or is not so, the learned Judge who gave leave for Juliana to appeal as next friend of the infant was fully aware that the infant had appeared by a guardian ad litem in the Court below. Accordingly the position of the guardian ad litem was before the Court, and the infant was notwithstanding permitted to appeal by a different person as next friend in lieu of the former guardian ad litem. There is accordingly no substance in this objection.

There was another objection that the next friend should have been described either as a spinster or feme-sole since the general rule is, that a married woman cannot be a next friend (See Daniell's Chancery Forms p. 34 note (b), but that point has been met by Mr. Battishill being permitted to amend his application so as to describe Juliana as a feme-sole.

The next objection was that the next friend must be within the jurisdiction.

No doubt the general rule is that a next friend must be within the jurisdiction. There is particular reason for this rule, where the next friend is liable for costs, and where the Court requires to exercise control over the next friend in connection with proceedings pending before the Court. The only authority for the proposition appears to be Anon, 18 Jur 770. This was the case not of a next friend but of a guardian ad litem, and Page Wood VC puts it no higher than this - "It is as well to have for a guardian some person within the power of the Court to reach." These considerations hardly apply where the next friend has himself been admitted to represent the infant as a pauper, and where the only issue before the Court is the construction of a will, and there is nothing that the next friend may be required to do.

As stated by