Striking out and adding parties.

parties.

The Native Pearl, 37 L. T. N. S. 542; 3 Asp. M. C. N. S. 575, wherein a managing owner was joined as a defendant.

14. Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a judge at any time before trial, by motion or summons, or at the trial of the action in a summary

manner.

15. Where a defendant is added, unless otherwise ordered by the Court or judge, the plaintiff shall file an amended copy of and sue out a writ of summons, and serve such new defendant with such writ or notice in lieu of service thereof, in the same manner as original defendants are served.

16. If a statement of claim has been delivered previously to such defendant being added, the same shall, unless otherwise ordered by the Court or judge, be amended in such manner as the making such new defendant a party shall render desirable, and a copy of such amended statement of claim shall be delivered to such new defendant at the time when he is served with the writ of summons or notice or afterwards, within four days after his appearance.

Claim by 17. Where a defendant is or claims to be entitled to contribution defendant or indemnity or any other remedy or relief over against any other peragainst third son, or where from any other cause it appears to the Court or a judge that a question in the action should be determined not only as between the plaintiff and defendant, but as between the plaintiff, defendant, and any other person, or between any or either of them, the Court or a judge may, on notice being given to such last-mentioned person, make such order as may be proper for having the question so determined.

See note to succeeding rule.

18. Where a defendant claims to be entitled to contribution, indemnity, or other remedy or relief over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper officer and served on such person according to the rules relating to the service of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his statement of defence. Such notice may be in the form or to the effect of the Form No. 1, in Appendix (B) hereto, with such variations as circumstances may require, and therewith shall be served a copy of the state

ment of claim, or, if there be no statement of claim, then a copy of the writ of summons in the action.

The working of the third party rules has not proved satisfactory, and the difficulties in putting them into practice have been great. Their operation in questions of contract may be seen in the cases of Benecke v. Frost, 1 Q. B. D. 419; 45 L. J. Q. B. 693; Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644; 45 L. J. Q. B. 638; Bower v. Hartley, 1 Q. B. D. 652; 46 L. J. Q. B. 126; The Associated Home Co. v. Whichcord, 47 L. J. Ch. 652.

As regards questions arising out of torts, the judgment of the Court of Appeal in Horwell v. London General Omnibus Co., 2 Ex. D. 365; 46 L. J. Ex. D. 700, seems to have narrowed them exceedingly, since there is scarcely a case in which a defendant can have a claim over against a third party, which if good, would not be a valid defence, and so render any question of contribution quite unnecessary. Thus if ship A. brings an action against ship B. for damage by collision, and B. says that the collision was caused by negligent navigation on the part of C. which caused B. to collide with A., this is a good defence to A.'s action, and not a reason for bringing C. in as a third party. If B., however, were a ship in tow and C. the tug, B. would be responsible to A., and then might bring C. in as a third party. (See The Cartsburn, L. R. 5 P. D. 59; 41 L. T. N. S. 711.) Again, an action is brought by A. against B. for salvage, the necessity for such service having been caused by a collision between B. and C., B. might claim to be indemnified by C. for the amount of salvage. But it is now clearly established that the plaintiff must not be prejudiced by thus bringing in a third party, and if he is likely to be, the Court will refuse to allow this procedure to be used. As soon as the third party is brought in, an application under r. 21 should be made to the Court to give directions as to

the mode of trial, and the extent to which the parties are to be bound (The Cartsburn, supra).

19. When under Rule 17 of this Order it is made to appear to the Court or a judge at any time before or at the trial, that a question in the action should be determined, not only as between the plaintiff and defendant, but as between the plaintiff and the defendant and any other person, or between any or either of them, the Court or a judge, before or at the time of making the order for having such question determined, shall direct such notice to be given by the plaintiff at such time and to such person and in such manner as may be thought proper, and if made at the trial the judge may postpone such trial as he may think fit.

20. If a person not a party to the action, who is served as mentioned in Rule 18, desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise. Provided always, that a person so served and failing to appear within the said period of eight days may apply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or a judge shall think fit.

21. If a person not a party to the action served under these rules appears pursuant to the notice, the party giving the notice may apply to the Court or a judge for directions as to the mode of having the question in the action determined; and the Court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions, as to the Court or a judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question.

ORDER XVII.

JOINDER OF CAUSES OF ACTION.

action.

1. Subject to the following rules, the plaintiff may unite in the Joinder of same action and in the same statement of claim several causes of causes of action; but, if it appear to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof.

3. Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a judge, be joined with any claim by him in any other capacity.

4. Claims by or against husband and wife may be joined with claims by or against either of them separately.

5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator.

6. Claims by plaintiff's jointly may be joined with claims by them or any of them separately against the same defendant.

7. The last three preceding rules shall be subject to Rule 1 of this Order, and to the rules hereinafter contained.

action.

8. Any defendant alleging that the plaintiff has united in the same Confining action several causes of action which cannot be conveniently disposed of in one action, may at any time apply to the Court or a judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding.

9. If, on the hearing of such application as in the last preceding rule mentioned, it shall appear to the Court or a judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons and the indorsement of claim on the writ of summons to be amended accordingly, and may make such order as to costs as may be just.

Action by lunatics,

&c.

ORDER XVIII.

ACTIONS BY AND AGAINST LUNATICS AND PERSONS OF
UNSOUND MIND.

In all cases in which lunatics and persons of unsound mind not so found by iniquisition might respectively before the passing of the Act have sued as plaintiffs or would have been liable to be sued as defendants in any action or suit, they may respectively sue as plaintiffs in any action by their committee or next friend in manner practised in the Court of Chancery before the passing of the said Act, and may in like manner defend any action by their committees or guardians appointed for that purpose.

Pleadings:
they
must be

brief and
contain
material

facts only.

ORDER XIX.

PLEADING GENERALLY.

1. The following rules of pleading shall be substituted for those heretofore used in the High Court of Chancery and in the Courts of Common Law, Admiralty, and Probate.

2. Unless the defendant in an action at the time of his appearance shall state that he does not require the delivery of a statement of complaint, the plaintiff shall within such time and in such manner as hereinafter prescribed, deliver to the denfendant after his appearance a statement of his complaint and of the relief or remedy to which he claims to be entitled. The defendant shall within such time and in such manner as hereinafter prescribed deliver to the plaintiff a statement of his defence, set-off, or counter-claim (if any), and the plaintiff shall in like manner deliver a statement of his reply (if any) to such defence, set-off, or counterclaim. Such statements shall be as brief as the nature of the case will admit, and the Court in adjusting the costs of the action shall inquire at the instance of any party into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same.

These and the following rules apply to petitions on protest and against the report of the registrar as well as to ordinary pleadings (J. A., 1873, s. 100, and O. i., r. 3).