r. 11.

Order XIX. 19 Ch. Div. 251.) No plea or defence is now pleaded in abatement. It is only the necessary consequence of these rules which make so considerable a change in the old law and practice on the subject that the largest power should be given to a judge or the Court of adding or substituting all necessary and striking out all unnecessary parties at any stage of the action, whether upon the application of either party, or at the instance of the Court itself. This, however, is not done on an ex parte application. (Tildesley v. Harper, 3 Ch. D. 277); or after final decree (see Att.-Gen. v. Birmingham Corporation, 15 Ch. D. 425).

r. 2.

Power to

or substitute an

other as plaintiff.

A reference to the rules in Order XVI. will show that more ample provision is made for a plaintiff applying to amend the parties to the action than for a defendant so applying, and a consideration of the cases decided upon the subject will show a greater disinclination on the part of the Court to add or strike out either plaintiffs or defendants at the instance of a defendant. (Cf. Norris v. Beazley, 2 C. P. D. 80; 46 L. J. Order XVI. C. P. 169; 35 L. T. 846; 25 W. R. 320.) Rule 2 of Order XVI. is the first of the rules to which attention should allow plain- be called. It says, "where an action has been commenced in tiff to join 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, the Court or judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just." This rule will frequently apply to a case where a plaintiff might under rule 1 in the first instance and without any order have joined along with himself as a plaintiff in the action, and claimed relief alternatively, the person whom he now seeks to add as a plaintiff. In such a case, if he finds out his error during the progress of the suit, he may apply under this rule to add the other necessary plaintiff; but then he must be prepared to show, first, that there was a bonâ fide mistake as to the issue of the writ, that is to say, that he then honestly thought that he could obtain the remedy sought without joining another plaintiff, and secondly, that the change sought is necessary for the determination of the real matter in dispute. (See Smith v.

on r. 2.

Haseltine, W. N. 1875, 250, Part I.; 20 S. J. 140.) The Master Decisions of the Rolls has decided that there may be a bona fide mistake within the meaning of this rule as well with reference to a matter of law as to some matter of fact. (Duckett v. Gover, L. R. 6 Ch. D. 82; 46 L. J. Ch. 407; 25 W. R. 554); but according to the same authority the mistake must be a genuine, honest mistake. (Clowes v. Hilliard, L. R. 4 Ch. D. 413; 46 L. J. Ch. 271; 25 W. R. 224.) It may well be, however, that in cases where the Court would refuse to add a party as plaintiff under this rule they would do so under the more general powers given by rule 11. (See the remarks of Huddleston, B., in Smith v. Haseltine, supra.)

However, the distinction was not insisted on in The Val de Travers Company v. London Tramways Company, 48 L. J. C. P. 312; 40 L. T. 133. The circumstances of that case were as follows:-The plaintiffs contracted with a vestry to pave a public road with asphalte, and to keep the pavement in repair for fifteen years: the pavement when laid to be the property of the vestry. Shortly after the pavement was completed, the defendants, acting under statutory powers, laid down a tramway along the pavement, but so constructed and maintained their tramway as to occasion unnecessary damage to the pavement. It being doubtful whether an action commenced by the plaintiffs against the defendants on the above facts was brought in the name of the right plaintiffs, the Court, under Rules of Court, Order XVI. r. 2, ordered the vestry to be added or substituted as the plaintiffs, on the terms that the vestry was to be indemnified by the original plaintiffs for

all costs and expenses.

r. 7.

Plaintiff

joining

other de

fendants.

Rule 7 enables the plaintiff to apply to add another de- Order XVI. fendant. "Where 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 the questions as to which if any of the defendants is liable, and to what extent, may be determined as between all parties." It has been decided in the case of the Honduras Inter-Oceanic Company v. Lefevre (L. R. 2 Ex. D. 301; 46 L. J. Ex. D. 391; 36 L. T. 46; 25 W. R. 310), the facts in which have been already sufficiently adverted to, that

Decisions of Cockburn, C.J. and Bramwell, L.J.

as to application of

r. 7.

Order XVI. r. 11. General power to strike out or add

where a plaintiff has a remedy against a principal if his agent acted with his authority or in the alternative a remedy against the agent if he exceeded his authority, it is a case within this rule. The majority of the Court guarded itself from saying that rule 4 would not have equally met the case, although Cockburn, C. J., expressed an opinion that it would not; but since the decision in Child v. Stenning there can be little doubt that rule 4 is wide enough to embrace such a case; and if that be so, the question arises in what way, if at all, does rule 7 enlarge the powers of joining defendants given by rule 3? This question is difficult to answer; but it has been more than once suggested that rule 7 applies mainly to the case where a plaintiff has at the commencement of the suit neglected to avail himself to the full of the powers given by rule 3, and finds out his error during the progress of the action. This view is supported by the authority of Cockburn, C. J., who in giving judgment in the Honduras Inter-Oceanic Company v. Lefevre, said, "This rule (rule 7) I think is applicable to actions which have been already commenced, as well as those in which the plaintiff is in doubt on commencing the action; and if, after having brought the action, the plaintiff is in doubt whether he has made the right person defendant, he may apply to the Court and obtain permission to add another defendant."

66

Passing on next to rule 11 we find it provided no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights plaintiffs or and interests of the parties actually before it. The Court or a defendants. judge may at any stage of the proceedings, either upon or with

out the application of either party, and upon such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and the names of any 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 cause or matter be added." Then follows an exception to this rule which must be carefully noted. "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 in writing thereto." Under the corresponding rule of 1875 it has been decided that the Court cannot substitute one plaintiff for another, except by the first plaintiff's consent, where he admits he commenced the action improperly, but in a proper case the Court will add a plaintiff, and give him the conduct of the action. (Emden v. Carte, 17 Ch. Div. 169.) Next comes a clause which, as will be seen further on, has been thought to limit the generality of the rule: "Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice." Rule 12, which follows, seems to be merely explanatory of rule 11. "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." Rule 13 is of a practical character, and provides for amending the writ and service of the same when new defendants are added.

cannot get a plaintiff joined

without his

consent.

It seems pretty clear that rule 11 is one framed rather in the interest of a plaintiff than of a defendant, and it will only be in a very exceptional case that a defendant can get any benefit from it. In the first place he cannot get a plaintiff joined who is unwilling to be joined. There is the proviso in the rule Defendant against him, "No person shall be added as plaintiff without his own consent thereto." In De Hart v. Stevenson (L. R. 1 Q. B. D. 313; 45 L. J. Q. B. 575; 24 W. R. 367) the defendant applied under this rule to get co-owners of a ship joined as plaintiffs along with the then plaintiff, who was himself an owner, and the application was put on the ground that thereby the defendant would obtain additional security for his costs; but the application was refused and see Turquand v. Fearon, 4 Q. B. D. 280; 48 L. J. Q. B. 341; 40 L. T. 191; 27 W. R. 396. Can he get another person joined as defendant along with himself? This question arose in Norris v. Beazley (L. R. 2 C. P. D. 80; 46 L. J. C. P. 169; 35 L. T. 846; 25 W. R. 320). The case was of this kind. Action on a bill of exchange of which the defendant was acceptor. The

When a plaintiff

can get

new par

under rule

11.

defendant pleaded that the bill was given in part payment for a ship bought by him, and that he contracted to purchase the ship on behalf of a company not then fully constituted, but which afterwards became so, called the Niger Merchants' Company, Limited, and that this company had a cause of action against the plaintiff for fraud, and that on that ground there was a good counter-claim by the company against the plaintiff. The defendant accordingly applied under rule 13 (now 11) to join the Niger Merchants' Company, Limited, as defendants, in order that the counter-claim might be set up. The company were willing to be joined, but the plaintiff opposed.

Where a defendant has been improperly made a party, the Court will order his name to be struck out under Order XVI. r. 11, although he may have delivered his statement of defence: Vallance v. Birmingham Land Corporation (2 Ch. D. 369; 24 W. R. 454).

Next comes the question how far can a plaintiff avail himself of this rule for the purpose of joining either new plaintiffs or new defendants? In the first place it is obvious a plaintiff ties joined cannot get another joined as a co-plaintiff when that other is unwilling to be joined. The proviso to the rule is express upon the point; and besides there is the judgment of Mr. Justice Lindley in the case of Cormack v. Grofrian and another (W. N. 1876, 22). This was an action by a ship-owner against two consignees of goods for demurrage. A counter-claim had been delivered for damage to cargo. The plaintiff then took out a summons to add other parties as plaintiffs, on the ground that being co-owners of the ship with him they were jointly liable on the counter-claim; but his lordship, affirming the decision of the Master, refused to join the proposed parties as plaintiffs against their wish. Where, however, the proviso does not apply, there seems to be large power of joining new plaintiffs at the instance of a plaintiff. (See Smith v. Haseltine, supra.) But there is a limit to this power. It is questionable whether at the trial an amendment of the kind would be allowed unless the party proposed to be added were a merely formal party (Williams v. Andrews, W. N. 1875, 237); and when the trial is over, and the decision is against the plaintiffs, they cannot, by amendment under this rule or any rule, be allowed to introduce new plaintiffs and make an entirely new