ance in actions in

warrant no appearance shall have been entered in the action, the appearsolicitor for the plaintiff may file his statement of claim. And, if within a fortnight from the filing of the statement of claim, no appear- rem. ance shall have been entered, the plaintiff's solicitor may, on bringing in his proofs, enter the action for trial.

"If when the action comes before the judge he is satisfied that the plaintiff's claim is well founded, he may pronounce for the claim with or without a reference to the registrar or the registrar assisted by merchants, and may at the same time order the property to be appraised and sold with or without previous notice, and the proceeds to be paid into Court, or may make such order in the premises as to him shall seem just."

Rule 10 of the Judicature Rules having been repealed the old practice was revived and embodied in the preceding rules by an order issued from the registry in Feb. 1876. The practice is to enter the cause for hearing, when it will be set down in the list, and generally taken on the motion day of the week; but, in some cases where there are exceptional circumstances, the cause may come before the judge on motion for judgment under O. xl., r. 1, and a decree will be made according to the claim on the writ without a statement of claim as required by the above rules (The Julina, 35 L. T. N. S. 410) where there was a fund in Court, a previous action in regard to the same subjectmatter had been allowed to go by default, and the last claim was for wages.

In the case of an action on a bottomry bond, the original bond must in all cases be brought into Court (The Rowena, 37 L. T. N. S. 366; 3 Asp. M. C. N. S. 406).

When foreign sailors are plaintiffs and a sum is demanded by way of viaticum, a certificate of their consul must be brought to the notice of the judge, stating that the plaintiffs are returning home at their own cost, before a decree for this special sum can be obtained (The Raffaelluccia, 37 L. T. N. S. 365; 3 Asp. M. C. N. S. 505).

The Court will generally also grant leave to bondholders to pay prior charges, as wages and other claims, and to

have a lien in respect thereof, so as to save expense of actions, on an affidavit showing the charges (The Fair Haven, L. R. 1 Ad. 67).

Application for account.

ORDER XV.

APPLICATION FOR ACCOUNT WHERE WRIT INDORSED UNDER
ORDER III., RULE 8.

1. In default of appearance to a summons indorsed under Order III., Rule 8, and after appearance, unless the defendant, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the account claimed, with all directions now usual in the Court of Chancery in similar cases, shall be forthwith made.

2. An application for such order as mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired.

Parties.

ORDER XVI.

PARTIES.

1. All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct.

2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the Court or a judge may, if satisfied that it has been so commenced through a bonâ fide mistake, and that it is necessary for the determination of the real

matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as may seem just.

Where the bailee of a vessel brings an action and is successful, the Court will take precautions that the sum awarded shall not be paid out without reasonable security that the owners do not also bring an action, and that both parties consent to the appropriation of the sum awarded (The Minna, L. R. 2 Ad. 97). In such a case it would be advisable to join both bailees and owners under the first of the above rules.

The assignors of a cause of action where there is no lien may sue for the assignees even though the assignors' claim does not accrue, and even if their general property has vested in a trustee in bankruptcy (The Wasp, L. R. 1 Ad. 367; 2 Mar. L. C. O. S. 552).

Any number of persons having a common interest may be joined as plaintiffs: thus, several seamen may unite in a wages suit, and the owner of the ship and the owner of the cargo in an action for damages.

A charterer, being generally, pro hac vice, owner of the vessel, should be a party to an action for salvage instead of the actual owner (The Scout, L. R. 3 Ad. 512; 41 L. J. Ad. 42), and the representative of a foreigner lost at sea in an action of damage (The Explorer, L. R. 3 Ad. 289; 40 L. J. Ad. 41).

3. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

It will be obvious that this rule can apply only to an action in personam.

4. It shall not be necessary that every defendant to any action shall be interested as to all the relief thereby prayed for, or as to

Trustees

tors.

every cause of action included therein; but the Court or a judge may make such order as may appear just, to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in such action in which he may have no interest.

5. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

6. Where in any action, whether founded upon contract or otherwise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that in such action the question as to which, if any, of the defendants is liable, and to what extent, may be determined as as between all parties to the action.

7. Trustees, executors, and administrators may sue and be sued on and execu- behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing such parties in the action; but the Court or a judge may, at any stage of the proceedings, order any of such parties to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto.

Married

women and infants.

8. Married women and infants may respectively sue as plaintiffs by their next friends, in the manner practised in the Court of Chancery before the passing of this Act; and infants may in like manner defend any action by their guardians appointed for that purpose. Married women may also, by the leave of the Court or a judge, sue or defend without their husbands and without a next friend, on giving such security (if any) for costs as the Court or a judge may require.

A guardian of an infant is appointed by an instrument called a proxy, which appointment must be accepted by an instrument in writing, and both documents must then be filed in the registry (The Albert Crosby, Lush. 44). This was usually the practice when an infant was a plaintiff, but r. 8 appears to have altered the former practice. A child en ventre sa mère can sue in actions of damage under 9 & 10 Vict. c. 93. (The George & Richard, L. R. 3 Ad. 466; 24 L. T. N. S. 717.)

9. Where there are numerous parties having the same interest in Repre one action, one or more of such parties may sue or be sued, or may sentative be authorized by the Court to defend in such action, on behalf or for the benefit of all parties so interested.

party.

10. Any two or more persons claiming or being liable as co-partners Partners. may sue or be sued in the name of their respective firms, if any; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who are co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge may direct.

10a. Any person carrying on business in the name of a firm apparently consisting of more than one person, may be sued in the name of such firm.

13. No action shall be defeated by reason of the misjoinder of parties, Misjoinder and the Court may in every action deal with the matter in controversy of parties. so far as regards the rights and interest of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the name or names of any party or parties, whether as plaintiffs or as defendants, improperly joined, be struck out, and that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent thereto. All parties whose names are so added as defendants shall be served with a summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against them shall be deemed to have begun only on the service of such summons or notice.

This rule is useful in actions of possession. Thus, should parties not be before the Court as defendants, the plaintiff whilst obtaining possession of a ship may not have anyone by whom payment of costs may be made. In such a case the Court will order persons who have not appeared and who are interested in the subject-matter of the action to be made parties. This practice was adopted in The Annandale, L. R. 2 P. D., 179; 37 L. T. N. S. 364, and in

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