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 bona 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 bonâ 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.)

r. 6.

Plaintiff

other de

fendants.

Rule 6 enables the plaintiff to apply to add another de- Order XVI. fendant. "Where in any action, whether founded upon contract or otherwise, the plaintiff is in doubt as to the person from joining 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 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

Right of defendant

limited to joining an

other as defendant to a

counterclaim.

r. 13.

r. 13.

has or have arising out of the given subject-matter of litigation against each individual defendant, or against all the defendants taken together, or against any one or more of them in the alternative.

The absolute right which a defendant has along with his defence to join new parties to the action.-The only case where a defendant has a right to introduce a new party or parties into the action without applying for and obtaining the leave of the Court, is where he makes a counter claim under Order XIX. r. 3, against the plaintiff in the action, and joins as a co-defendant or co-defendants with him some person or persons who is or are liable along with him on the subject-matter of the counter claim. This right of a defendant is only mentioned here. It is discussed further in another place (Chapter II. pages 72-78, post) to which the reader is referred.

The right which either party has during the progress of the action of applying to the Court for leave to add, substitute, or strike out parties, and the power of the Court to grant or refuse Order XVI. such application.-Rule 13 of Order XVI. declares that “ no action shall be defeated by reason of the misjoinder of parties," Order XIX. and Order XIX. r. 13, that "no plea or defence shall be pleaded in abatement; and 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.

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. Order XVI. Rule 2 of Order XVI. is the first of the rules to which attenr. 2. tion should be called. It says, "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 judge may, if satisfied that it has been so commenced through a bona fide

Power to

allow plain tiff to join

or substitute an

other as plaintiff.

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 plaintiff's 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 bona 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. 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.)

r. 6.

Plaintiff

1

other de

fendants.

Rule 6 enables the plaintiff to apply to add another de- Order XVI. fendant. "Where in any action, whether founded upon contract or otherwise, the plaintiff is in doubt as to the person from joining 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 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

Decisions of Cock

burn, C. J.

and Bram well, L. J. as to application of r. 6.

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
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, it is submitted, be little doubt that rule 3 is
wide enough to embrace such a case; and if that be so, the ques-
tion arises in what way, if at all, does rule 6 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 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. Lefevre, 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 shall be defeated by reason of the misjoinder of parties, and the Court may in every action deal with the matter in controversy 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 proceedings, 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

Order XVI.

r. 13.

General

power to

or add

plaintiffs or

defendants.