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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.” 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. Decisions Haseltine, W. N. 1875, 250, Part I.; 20 S. J. 140.) The Master on r. 2.1 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); but according to the same authority the mistake must be a genuine, honest mistake. (Clowes v. Hilliard, L. R. 4 Ch. D. 413.) 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 13. (See the remarks of Huddleston, B., in Smith v. Haseltine, supra.)

Rule 6 enables the plaintiff to apply to add another de- Order XVI. fendant. “Where in any action, whether founded upon con

Plaintiff tract or otherwise, the plaintiff is in doubt as to the person from joining

other de. whom he is entitled to redress, he may, in such manner as

fendants. hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that in such action the questions as to which if any of the defendants is liable, and to what extent, may be determined as between all parties to the action.” 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), the facts in which have been already sufficiently adverted to, that where a plaintiff has a remedy against a principal if his agent acted with his authority

r. 6.

the ques

or in the alternative a remedy against the agent if he exceeded his authority, is a case within this rule. The majority of the

Court guarded itself from saying that rule 3 would not have Decisions equally met the case, although Cockburn, C. J., expressed an of Cock burn, c. j. opinion that it would not ; but since the decision in Child v. and Bram- Stenning there can, it is submitted, be little doubt that rule 3 is well, L. J. as to ap

wide enough to embrace such a case ; and if that be so, plication tion arises in what way, if at all, does rule 6 enlarge the powers of r. 6.

of joining defendants given by rule 3 ? This question is difficult
to answer; but it has been more than once suggested that rule 6
applies mainly to the case where a plaintiff has at the com-
mencement 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. Leferre, said, “This rule (rule 6) I
think is applicable to actions which have been already com-
menced, 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.” Bramwell, L. J., in
the same case makes some remarks on the very point under
consideration, but there is a remarkable conflict in the re-
ports as to what his lordship really said. The Law Reports
version is as follows :-" There is some colour for saying that
rule 6 refers to rule 3; but I think it was not intended to apply
only to actions already commenced. It appears to be impossible
to suppose that the Legislature would say, ' First bring your
action, and then if any doubt arises in the course of the action
whether you have the proper defendant, ask leave of the Court
to add another defendant.' It seems to me more probable that
the words in any action' are equivalent to any intended
action.'” The Law Journal report puts it in this way :-
“I do not think that rule 6 takes the case of actions already
brought, for I cannot think that a man must first bring his
action, and then look about and see who are to be defendants.
I think that the words in any action' mean in any intended
action. The words as hereinafter mentioned' are clearly put
in inadvertently." The Weekly Reporter (vol. xxv. p. 310), has

it—“There is no doubt some colour for saying that it (rule 6) is intended to apply only to cases where an action has been already brought, but I cannot agree that it is so. I am of opinion that the words in any action' are equivalent to 'in any intended action. As for the Law Times (vol. xxxvi. p. 46), by an inadvertence, Lord Justice Bramwell's judgment is put into the mouth of Lord Justice Baggallay, and the report, then runs :-"I do not think that the sixth rule applies to the case of an action already brought, only because it is impossible that the Legislature meant to say to a plaintiff in doubt as to whom his relief should be against, 'first bring your action against one and then you may join the other defendant.' I think the other words ‘ in any action 'mean in any action intended to be as well as already commenced. The expression is a somewhat loose and slip-shod one, but that is what in my opinion was meant.” On the whole it may be taken that Lord Justice Bramwell's opinion does not altogether differ from that of Cockburn, C. J., as to rule 6 being at least applicable to a case where the action has been already commenced, though it is sufficiently evident even amid the chaos of the reports that in his lordship's opinion its application is not confined to this case.

Passing on next to rule 13 we find it provided “no action Order XVI. shall be defeated by reason of the misjoinder of parties, and the ; 13.

General Court may in every action deal with the matter in controversy power to so far as regards the rights and interests of the parties actually strike out before it. The Court or a judge may at any stage of the pro- plaintiffs or

defendants. ceedings, either upon or without the application of either party, and upon 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 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." 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 thereto.” Next comes a clause which, as will be seen further on, has been thought to limit the

generality of the rule : “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.” Rule 14 which follows seems to be merely explanatory of rule 13. “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.” Rules 15 and 16 are of a practical character and provide for amending the writ and statement of claim and service of the same when new parties are added.

It seems pretty clear that rule 13 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 Defendant plaintiff joined who is unwilling to be joined. There is the cannot get proviso in the rule against him, “No person shall be added a plaintiff joined as plaintiff

without his own consent thereto." In without bis

De Hart v. Stevenson (L. R. 1 Q. B. D. 313) 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. 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). The case was of this kind. Action on a bill of exchange of which the defendant was acceptor. The 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 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.

consent.

17

will not

In giving judgment Lord Coleridge, C. J., said that if the Judgment

of Lord matter had stood on the earlier part of rule 13 alone, he would

Coleridge, have been disposed to grant the defendant's application. C. J. “ But,” he went on, “ the plaintiff's counsel has directed our attention to the subsequent portions of the rule. It is provided that “no person shall be added as plaintiff ... without his own consent thereto.” Now this, although it is not a case of making a person a plaintiff against his will, is certainly the case of making a person a plaintiff in respect of a defendant as to whom he does not desire to be plaintiff without his consent; but the succeeding words are stronger: "All parties whose names are so added shall be served with a summons, &c., and the proceedings against them shall be deemed to have begun only on the service of such summons.” It seems to me to be correctly argued that those words plainly imply that the defendant to be Defendant added must be a defendant against whom the plaintiff has some

generally cause of complaint which ought to be determined in the action, be added and that it was never intended to apply where the person to be without

plaintiff's added as defendant is a person against whom the plaintiff has consent. no claim, and does not desire to prosecute any. It seems to me that this application is answered, and that it was not intended that persons in the position of this company should be added as defendants merely for the convenience of another defendant between whom and the company there may be questions which will have afterwards to be settled. It seems to me that it is the more important to construe this rule strictly, because it is obvious that in many cases if the defendant's contention is right, its provisions might be made use of in a manner exceedingly harassing to plaintiffs, by forcing them to include in their actions persons against whom they do not seek to proceed, and to mix up their rights as against one person, with questions of a highly complicated nature arising between themselves and others." After the other judges had concluded their judgments, Lord Coleridge added, “I wish to guard against But may being supposed, by anything I have said, to have meant that a

be in ex

ceptional defendant could never be added at the instance of the circumdefendant. Such was not my meaning."

stances. Denman, J., said that he was quite clear that the Court ought not to bring in any person as a defendant against whom the plaintiff did not desire to proceed, unless a very

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