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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. When a Next comes the question how far can a plaintiff avail himself plaintiff
of this rule for the purpose of joining either new plaintiffs or new can get new par
defendants? In the first place it is obvious a plaintiff cannot under rule get another joined as a co-plaintiff when that other is unwilling 13. 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 Edward v. defendant joined under this rule is Edward v. Lowther (45 L. J. Lowther. 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
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
C. J. rule 13 of Order XV.I., 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."
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."
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
Plaintiff 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 have party V. Andrewos, supra).
when case So far attention has merely been called to the cases, where on for trial
As to ap
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 plications of ejectment brought by a landlord against his tenant. At the parties to hearing on appeal from Chambers, counsel representing a mortbe made
gagee of the defendant's interest claimed to be heard, and mainplaintiff's or defend- tained that
under Order XVI. r. 13 he might be made a party. ants.
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. Striking As to the power given of striking out parties improperly joined,
the defendant and the plaintiff have the very same right of ties.
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, Order XVI. 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 When de
is : “ Where a defendant is or claims to be entitled to contrifendant
bution or indemnity, or any other remedy or relief over against claims indemnity any other person, or where from any other cause it appears to against the Court or a judge that a question in the action should be third par- 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
order as may be proper for having the question so determined.” Lord Justice Mellish in the case of Treleaven v. Bray (45 L. J. Treleaven Ch. 114) explained the meaning of this rule and the four fol- v. Bray. lowing rules which give effect to it thus. He said: “We (i.e., the
of Mellish, judges) came to the conclusion that it was not advisable to L. J. make any rules which would enable one defendant to obtain relief against his co-defendant without an independent action against him. We considered that we had power to do so, but we thought that it would be intolerable that a plaintiff who might have a good case against the original defendant should be compelled to wait for his remedy while the defendants were fighting inter se. The only object of the rule was to bind the third party conclusively by the judgment given as between the plaintiff and the original defendant. But if he wants to get an indemnity or other relief against the third party, he must bring an action of his own.
But although persons served with notices under these rules are not by that fact, or indeed by any act of the plaintiff or defendant, made parties to the action, yet upon proper application to the Court they may at their own instance be made parties to the action. Rule 20 says: “If a person not a party to the action who is served as mentioned in rule 18, desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, he must enter an appearance in the action within eight days from service of the notice.” And rule 21 goes on : “If a person not a party to the action, served under these rules, appears pursuant to the notice, the party giving the notice may apply to the Court or a judge for directions as to the mode of having the question in the action determined ; and the Court or judge, upon the hearing of such application, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered or such amendments in any pleadings to be made, and generally may direct such proceedings to be taken, and give such directions as to the Court or a judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question.” It has been decided in
Walker v. Balfour.
one case (Fruber v. Knorp, 36 L.T. N. S. 269) that a third party brought into the action under this rule and having obtained leave to defend, may himself bring in a fourth party claiming indemnity from him on the same ground on which it is claimed from the third party ; but in a later case of Walker v. Balfour (25 W. R. 511), the Court expressed great doubts as to whether this could be done. As the effect of rule 17, and the following rules is, as stated, not to make the third parties introduced into the action necessarily parties thereto, it is not proposed further to examine the decisions on those rules in this place. Those desiring information on the subject are referred to Swansea Shipping Co. Limited v. Duncan, L. R. 1 Q. B. D. 644 ; Benecke v. Frost, L. R. 1 Q. B. D. 419; Horwell v. London General Omnibus Co., L. R. 2 Ex. D. 365; and Bower v. Hartley, L. R. 1 Q. B. D. 652.