allowed a person to be added where it is sought to add him as plaintiff in respect of a new cause of action which formed no part of the original claim (see Daiton v. St. Mary Abbotts, 47 L. T. 349), and this it is presumed will in general be the practice followed, subject to those exceptional cases where it may be deemed right to make use of the provisions of O. XVI. r. 1A (cited ante, p. 19) in amending the parties to an action already commenced.

The plaintiff may in general and apart from special circumstances, such as unreasonable delay, &c., apply under O. XVI. r. 11, to have any persons added as defendants whom he could properly have joined as defendants in the first instance when the action was brought. (See Edwards v. Lowther, 45 L. J. C. P. 417; and see also Sykes v. Schofield, 28 Sol. Journ. 477; and Massey v. Heynes, infra, and Heard v. Bergmann, W. N. 1883, p. 192.)

Leave may be granted under this rule to add as a defendant a person against whom the plaintiff, if he fails to establish his case against the original defendant, has an alternative claim.

Thus, in an action brought against the agent in this country of a foreign principal residing abroad, leave was granted under O. XI. r. 1 (g), to issue a concurrent writ against the foreign principal, and to serve notice of it out of the jurisdiction. (Massey v. Heynes, 21 Q. B. D. 330; 57 L. J. Q. B. 521, cited ante, p. 20; and see also Child v. Stenning, 5 Ch. D. 695; 46 L. J. Ch. 523, cited Ib.)

As to adding new defendants where a change of parties is rendered necessary by reason of death, marriage, bankruptcy, or assignment, &c., see" Change of Parties," post, p. 30.

Where it can be clearly shown that parties have been improperly joined, application may be made under O. XVI. rr. 11, 12, to have the names of such parties struck out. (See Wilson v. Church, 9 Ch. D. 552; Smurthwaite v. Hannay & Co., cited ante, p. 19.)

As to the improper or embarrassing joinder of causes of action, see "Joinder of Causes of Action," post, p. 57.

A misjoinder of parties does not now defeat the action, or prevent the Court from dealing with the matter in controversy (see O. XVI. r. 11, supra; and O. XVI. rr. 1, 4, 6, 7, cited ante, pp. 19, 20); and, therefore, facts which merely show misjoinder are not in any case pleadable as a general defence to the whole action, nor would they, even if appearing on the statement of claim, afford ground for objecting to the whole claim in point of law. But any facts which show that some of the plaintiffs are not entitled to sue, or that some of the defendants are not liable to be sued in the action, are pleadable as a defence pro tanto, that is, they may be pleaded as a defence against the claim of those particular plaintiffs, or as a defence to the claim against those particular defendants; and, if those facts appear on the statement of claim, it seems that the claim of those particular plaintiffs, or the claim against those particular defendants, might be properly met by an objection in point of law as to that part of the statement of claim. (See Burstall v. Beyfus, cited ante, p. 21; Seroka v. Kattenburg, 17 Q. B. D. 177; 55 L. J. Q. B. 375; Van Gelder v. Sowerby Flour Society, 44 Ch. D. 374; 59 L. J. Ch. 583; Roberts v. Holland, (1893) 1 Q. B. 665; 62 L. J. Q. B. 621.)

The misjoinder of plaintiffs does not defeat any right of set-off or counterclaim by the defendant against the parties other than those improperly joined. (See O. XVI. r. 3, cited "Counterclaims," post, p. 576; "Set-off," post, p. 823.)

Objections on the ground of the non-joinder of parties are of more

frequent occurrence and of greater importance than objections on the ground of misjoinder.

Under the former practice, the only mode in which a defendant in a common law action could object to the non-joinder of joint contractors as defendants was by plea in abatement (Bullen & Leake, 3rd ed., p. 470; 1 Wms. Saund., 1871 ed., p. 164; Kendall v. Hamilton, 4 App. Cas. at p. 543; 48 L. J. C. P. 705); and this was also the only way in which he could, by his pleadings, object to the non-joinder of joint owners as plaintiffs in actions for wrongs to their joint property (see Bullen & Leake, 3rd ed., p. 708; 1 Wms. Saund., 1871 ed., p. 485); or, under ordinary circumstances, to the non-joinder of co-executors in actions by an executor (Bullen & Leake, 3rd ed., p. 472).

Objections on the ground of the non-joinder of joint contractees as coplaintiffs previously to the Judicature Acts were never, in practice, taken by plea in abatement, though they might have been the subject of such plea (Com. Dig. "Abatement," E. 12), but were either raised on the evidence at the trial under a plea denying the contract, in which case they were ground for non-suit or for verdict for the defendant (Bullen & Leake, 3rd ed., p. 469; 1 Wms. Saund., 1871 ed., p. 164; see the C. L. P. Act, 1852, s. 35, now repealed; and see Kendall v. Hamilton, 4 App. Cas. at p. 543); or, if the defect appeared on the face of the declaration, were taken by demurrer (Ib.; see Slingsby's Case, 5 Co. 9; Scott v. Godwin, 1 B. & P. 73; Anderson v. Martindale, 1 East, 497).

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Pleas and defences in abatement have been abolished by the Judicature Acts and the rules thereunder (see O. XXI. r. 20, cited Defences in General," post, p. 546; Preston v. Lamont, 1 Ex. D. 361; 45 L. J. Ex. 797); and the mere non-joinder of parties who ought to be joined as plaintiffs or defendants does not defeat an action, or prevent the Court from granting an application for the addition of any necessary parties, or from dealing with the matter in controversy, so far as regards the rights and interests of the parties actually before it (see O. XVI. r. 11, supra). Hence, if the defendant seeks to take objection on the ground of the nonjoinder of necessary parties, he should, in general, do so by making an application under O. XVI., rr. 11, 12, for the joinder of the omitted parties as co-plaintiffs or co-defendants respectively, and for a stay of proceedings, unless and until they shall have been so joined. (See the cases below cited.) This is the only mode in which he can raise the objection that a joint contractor has not been joined as a co-defendant (Kendall v. Hamilton, 4 App. Cas. 504; 48 L. J. C. P. 703; Sheehan v. Great Eastern Ry. Co., 16 Ch. D. 59; 50 L. J. Ch. 68; Wilson v. Balcarres Steamship Co., (1893) 1 Q. B. 422; 62 L. J. Q. B. 134, 245; Robinson v. Geisel, (1894) 2 Q. B. 685; 64 L. J. Q. B. 52); for it is clear that facts which merely raise an objection on the ground of the non-joinder of defendants are not pleadable as a defence (Ib.; see Bullen & Leake, 3rd ed., p. 470); and, even if those facts appear in the statement of claim, the objection, on the ground of such non-joinder, cannot properly be raised by pleading an objection in point of law (Ib.; see O. XVI. r. 11, cited ante, p. 26; Hunter v. Young, 4 Ex. D. 256; 48 L. J. Ex. 689; Werderman v. Société Genéralé, 19 Ch. D. 246, decided under the Rules of 1875).

Similarly, where the defendant seeks to take objection on the ground of the non-joinder of joint contractees who ought to have been joined as co-plaintiffs, it seems that he should, in general, do so by making such application as above mentioned, under O. XVI. rr. 11, 12.

As the persons so omitted cannot be added as plaintiffs without their written consent under O. XVI. r. 11, above cited, a positive order cannot

be made for their joinder as plaintiffs in the absence of such consent; and in cases where they could not properly be joined as defendants (as to which, see ante, p. 25), the proper course would appear to be that the action should be stayed until the omitted persons should be added as plaintiffs with their written consent. (See Roberts v. Holland, (1893) 1 Q. B. 665, 667, 669; 62 L. J. Q. B. 621; and The Duke of Buccleuch, (1892) 2 P. 201, 211; 61 L. J. P. 57.)

It would seem, moreover, that in certain actions the defendant is at liberty to plead, as a defence pro tanto, any facts showing that a plaintiff who is suing alone, in the absence of other persons who ought to have been joined as co-plaintiffs, is only entitled to a part of the damages or relief claimed (see 1 Wms. Saund., 1871 ed., p. 486; Sedgworth v. Overend, 7 T. R. 279, below cited); and it would also seem that the defendant may, in some cases, be at liberty to plead facts showing that the plaintiff, in the absence of other persons who ought to have been joined as co-plaintiffs, is not entitled to maintain the action, or to obtain any part of the damages claimed (see Wright v. Robotham, 33 Ch. D. 106). But it appears that in general the proper mode of raising any question with respect to nonjoinder of parties is to make such application under O. XVI. rr. 11, 12, as above mentioned.

Where the ground of an application for the joinder of parties under O. XVI. r. 11 is an objection which, previously to the Judicature Acts, could only have been taken by way of plea in abatement (e. g., where it is an objection to the non-joinder of joint contractors as co-defendants), the application will be decided on principles similar to those on which a plea in abatement under the former practice would have succeeded or failed. (Kendall v. Hamilton, supra; Wilson v. Balcarres, supra; Robinson v. Geisel, supra.) In order to support such application for the joinder of a joint-contractor as a defendant, the defendant must be prepared to show by affidavit or admission that the person sought to be added is living and is resident within the jurisdiction of the Court. (Ib.; and see Bullen & Leake, 3rd ed., p. 471.) The plaintiff may successfully resist such application by showing that the contract was not joint, or that it was several as well as joint, or that the person whose non-joinder is complained of is one who was not bound by the contract, or who is not liable to be sued thereon, as, for instance, if it appears that he was an infant at the time of the contract, and that the contract was not one for necessaries (see the Infants' Relief Act, 1874, cited post, p. 732; and see Lindley on Partnership, 6th ed., p. 290; 1 Wms. Saund., 1871 ed., p. 216; Bullen & Leake, 3rd ed., p. 477), or that he is protected by the Statute of Limitations (see Bullen & Leake, 3rd ed., p. 476), or that he has become bankrupt (see the Bankruptcy Act, 1883, s. 114, below cited; and see Bullen & Leake, 3rd ed., p. 476).

Where it is clear that the contract sued upon was a joint, and not a joint and several, contract, made by the defendant jointly with one or more other persons who might and ought to have been joined as co-defendants with him, the defendant is entitled in general to obtain such an order for their joinder as above mentioned. (Kendall v. Hamilton, supra; Robinson v. Geisel, supra.) It was held in Robinson v. Geisel (supra), that this was not an absolute right, and an action was permitted to proceed in the absence of a co-contractor against the other joint contractor, it appearing that, though he was within the jurisdiction, the plaintiffs were unable to effect service of the writ upon him. A person who is not a necessary party to the action (that is, a person whom the plaintiff is under no obligation to join) will not in general be added as a defendant to the

action if the plaintiff opposes the application. (See Byrne v. Browne, 22 Q. B. D. 657; 58 L. J. Q. B. 410; and see Horwell v. London General Omnibus Co., 2 Ex. D. 365; 46 L. J. Ex. 700; Kino v. Rudkin, 6 Ch. D. 160; 46 L. J. Ch. 807; Hunter v. Young, 4 Ex. D. 255; 48 L. J. Ex. 689; Birmingham Land Co. v. L. & N. W. Ry. Co., 34 Ch. D. 261; 56 L. J. Ch. 956; and see 2 Chitty's Practice, 14th ed., p. 1023.)

In an action for the recovery of land, a person who is in possession of the land by himself or his tenant may, although not named in the writ, obtain leave to appear and defend, and after such appearance and notice thereof to the plaintiff, is to be named as a defendant in all subsequent proceedings. (See O. XII. rr. 25-28.)

By O. XVI. r. 12, "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.'

Where parties are added or struck out under O. XVI. rr. 2 or 11, above cited, the writ of summons, and also any statement of claim already delivered, must, in general, be amended accordingly.

As to the third party procedure in cases where a defendant claims contribution or indemnity over against a third party or a co-defendant, see O. XVI. rr. 48-55; "Third Party," post, p. 592.

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As to parties to counterclaims, see Counterclaims," post, p. 575.

Change of parties on marriage, death, bankruptcy, &c.]-By O. XVII, r. 1, it is provided (inter alia) that "A cause or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite."

By O. XVII. r. 2, "In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court or judge shall think just, and shall make such order for the disposal of the cause or matter as may be just." (See O. XVII. r. 4, below cited.)

By O. XVII. r. 3, "In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved."

By O. XVII. r. 4, "Where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties and such new party or parties may be obtained ex parte on application to the Court or a judge, upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence."

It would seem that an order under rr. 2, 4, above cited, will not be

made after final judgment in the action in cases where nothing further remains to be done, except the issue of execution. (Att.-Gen. v. Birmingham Corporation, 15 Ch. D. 423; Keith v. Butcher, 25 Ch. D. 750; 53 L. J. Ch. 640; The Duke of Buccleuch, (1892) P. 201; 61 L. J. P. 57.) Provision is, however, made by O. XLII. r. 23, for changes after judgment in the parties entitled to issue execution or liable to execution. (See Norburn v. Norburn, (1894) 1 Q. B. 448; 63 L. J. Q. B. 341.)

By O. XVII. r. 5, it is provided that an order obtained under O. XVII. r. 4, above cited, must, unless the Court or judge otherwise direct, be served upon the continuing party or parties, or their solicitors, and also upon each new party, unless the person making the application be himself the only new party; and the order from the time of such service, subject nevertheless to the provisions of O. XVII. rr. 6, 7 (below cited), is binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter must enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons.

0. XVII. rr. 6 and 7, enable persons so served with the order to apply within the times therein mentioned to have it discharged or varied, and the last-mentioned rule further provides that, as against any person so served who is under any disability other than coverture, and has not a guardian ad litem in the cause, the order shall not operate until after twelve days from the appointment of a guardian ad litem for such party. As to extensions of time and the mode of computing time, see the provisions of O. LXIV., cited ante, pp. 17 et seq.

O. XVII. r. 1, above cited, further provides that "whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such cases be entered, notwithstanding the death."

By O. XVII. r. 8, it is provided that in case of the death of either party pending the action, where the cause of action survives, but the party entitled to proceed fails to proceed, the defendant (or the person against whom the action may be continued) may apply by summons to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the action might have been continued. (See Motion v. King, 29 W. R. 73.)

If the cause of action does not "survive or continue" within the meaning of O. XVII. r. 1, above cited, no order for adding the representatives of a deceased party can properly be made under O. XVII. r. 4, above cited. (Kirk v. Todd, 21 Ch. D. 484; 52 L. J. Ch. 224, and other cases cited "Executors," post, p. 424.)

As to what causes of action survive to or against an executor or administrator, see Executors," post, pp. 199, 203, 424; Batthyany v. Walford, 36 Ch. D. 269; 56 L. J. Ch. 881.

Where, on the death of a defendant who had pleaded a counterclaim, the plaintiff got an order for continuing the action against the deceased's executor, it was held that the executor, in order to continue the counterclaim, must obtain a like order for that purpose. (Andrew v. Aitken, 21 Ch. D. 175; 51 L. J. Ch. 528.) The provisions of O. XVII. r. 1, do not affect the construction placed on s. 4 of the Statute of Limitations, 21 Jac. I. c. 16, in a case where the defendant in an action on a simple contract debt dies after action brought,