Defendant cannot get

a plaintiff

joined without his corsent.

66

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 plaintiff joined who is unwilling to be joined. There is the proviso in the rule against him, "No person shall be added as plaintiff

In

without his own consent thereto." 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.

17

of Lord

will not

generally be added

In giving judgment Lord Coleridge, C. J., said that if the Judgment 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 cause of complaint which ought to be determined in the action, 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 being supposed, by anything I have said, to have meant that a defendant could never be added at the instance of the defendant. Such was not my meaning."

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

с

But may

be in ex. ceptional

circum

stances.

When a plaintiff can get new par

ties joined under rule

13.

Edward v.
Lowther.

strong case was made out showing that in this particular case justice could not be done without his being brought in. It will be seen from this case that under rule 13 one defendant may get another person joined as a co-defendant, but only in an exceptional case; and there is no decision, so far as is known, as to what constitutes such an exceptional case.

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 cannot get another joined as a co-plaintiff when that other is unwilling to be so 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 (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 case. (New Westminster Brewery v. Hannah, W. N. 1876, 215, and in the Court of Appeal, W. N. 1877, 35.)

The principal case upon the right of a plaintiff to get another defendant joined under this rule is Edward v. Lowther (45 L. J. Q. B. &c. Div. 417), and here the Court laid down something like a general principle. The case was an action for libel, originally brought against the publisher of a newspaper. It transpired during the progress of the case, in answer to interrogatories, that one A. B. was sole proprietor of the paper. The plaintiff then applied to have A. B. joined as a defendant along with the original defendant. A. B. opposed. In giving judgment

Coleridge,

C. J.

Lord Coleridge, C. J., said: "I am of opinion that this applica- Judgments. tion should be granted. I do not mean to say that the point Lord would be free from argument if it rested on the terms of rule 13 of Order XVI., but I place my judgment on this, that rules 3 and 13 of the same order are to be read together. Now rule 3 states that all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.' It is plain therefore from that rule that the person whom it is now sought to make a defendant might have been made a defendant in the first instance. Then rule 13 says 'that the name or names of any party or parties, whether plaintiffs or defendants, who ought to have been joined' may be added. I think that this means that a person may be added as a defendant who ought to have been such defendant for the purpose of general convenience and of doing justice in the subject-matter of the suit. Now as Mr., whom it is proposed to add as a defendant, is clearly a person against whom, if the plaintiff's case is right, relief may be sought, and who might have been made a defendant in the first instance, so I think he is one who may now be properly ordered to be joined as a defendant on such terms as the Court may think just."

J.

Archibald, J., said: "I think that the meaning (i.e., of the Archibald, rules) is that all parties against whom remedy or relief is sought, should if possible be joined in the same action. Now it is clear from rule 3 that the party here sought to be made defendant might have been joined as a defendant in the first instance, and I think that ought' in the 13th rule should be read according to the spirit of the rules, and should therefore be construed as meaning ought for the purpose of doing justice,' or 'ought,' because the plaintiff, if he had known that Green was the proprietor of the paper, ought to have joined him as defendant in the first instance."

Plaintiff

The principle to be deduced from this case is that whoever might originally have been made a party under the earlier rules of this order, may be added under this rule; but according to Mr. Justice Quain it would be too late to apply to have a new party joined when the case is actually on for trial (Williams v. Andrews, supra). So far attention has merely been called to the cases, where on for trial

cannot

have party joined

when case

As to applications by third parties to

be made plaintiffs or defend

ants.

Striking

out par

ties.

Order XVI.

either the plaintiff or the defendant wants a party added. There is in the rule no express provision for third parties intervening and themselves applying to be made parties to the action for some purpose or other, unless indeed the case is embraced by the right which is reserved to the judge or the Court of amending the parties irrespective of the application of either side. "The Court or a judge may at any stage of the proceedings, either upon or without the application of either party," &c. There is one case in the books on the subject. Mills v. Griffiths (45 L. J. Q. B. C. P. & Ex. 771) was an action of ejectment brought by a landlord against his tenant. At the hearing on appeal from Chambers, counsel representing a mortgagee of the defendant's interest claimed to be heard, and maintained that under Order XVI. r. 13 he might be made a party. Lush, J.: "The mortgagee is not a defendant. What locus standi does he have?" Cockburn, C. J.: "Why is the landlord to be in a worse position because his lessee has mortgaged?" Counsel urged that the Court might order that the landlord should hold subject to the mortgage; but the Court held that in the present action they could give no relief to the mortgagee, and that he could not be made a party.

As to the power given of striking out parties improperly joined, the defendant and the plaintiff have the very same right of applying to the Court; and it has been decided that a defendant improperly joined may be struck out on his own application though he has delivered a statement of defence. (Vallance v. Birmingham Land Corporation, L. R. 2 Ch. D. 369.)

While on the subject of parties under the new procedure, a word or two must be said with reference to rules 17, 18, 19, 20, and 21 of Order XVI. These rules provide means not for rr. 17-21. bringing new parties into an action then going on, but for binding third parties by the result of that action. Rule 17 is: "Where a defendant is or claims to be entitled to contribution or indemnity, or any other remedy or relief over against any other person, 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

When defendant claims indemnity against

third par

ties.