20 THE LAW OF PRACTICE.
plaintiff shall not enter judgment until after such time as
a letter posted in London on the previous evening, in due
time for delivery on the following morning, should have
reached the defendant.
11. On appearance to writ specially indorsed, the plain-
tiff may, on affidavit made [but not necessarily before the
granting of a summons to show cause (z) ] by any person
who can swear positively to the debt or cause of action,
verifying the cause of action, and stating that in his be-
lief there is no defence to the action, call on the de-
fendant (a) [including a defendant corporation (6), but not
a feme covert (c)] to show cause why the plaintiff should
not be at liberty to sign final judgment, a copy of which
affidavit shall accompany the summons or notice of motion
returnable not less than two clear days after service (d).
The defendant may show cause (e), (1) by offering to
bring the sum into Court, which offer however does not
carry the right to defend as of course (/), or (2) by affi-
davit, in reply to which the plaintiff may by leave file a
counter-affidavit [g), but not as of right (h), or (3) " other-
wise/' and necessarily so where the defendant is a corpo-
ration (i). But the Court may still empower the plaintiff
to sign judgment, if satisfied that a defence would be for
the mere purpose of delay (j) ; or, on the other hand, if the
defendant's affidavit gives grounds from which the Court
may fairly conclude that there is a substantial defence,
may give leave to defend unconditionally (k), or on such
terms as to security or otherwise as seem just (I). And
where the defendant has paid money into Court and then
obtained final judgment of a Divisional Court, he is en-
Cz) Br>jn v. Cooper, 40 L. T. 29.
a) 0. XIV. r. la.
ib) Shdford v. Louth and East Coast Railway Co., 4 Ex. D. 317.
(<• Ortner v. Filzgibbon, 43 L. T. 60.
(d, o. XIV. r. 2.
(e) Do. rr. la., 3.
(/; Crump v. Cavendish, 5 Ex. I). 211.
.', Davit v. 8penee, 1 C. P. L>. 719; Girvin r. Orepe, 13 Ch. D. 174.
I, Rotheram v. Priest, 41 L. T. 558.
i Muirhead v. Direct United State* Cable Co., 27 W. R. 708.
\j) Lloyd! t Banking Co. v. OyU, 1 Ex. D. 20-2.
(k) Do., and Runnaclex v. Mcxquita, 1 Q. B. D. 416.
[I 0. XIV., r. 6, ami see Rap v. Barker, 4 Ex. D. 279 ; Oriental Bank-
vng Co. v. Fitzgerald, W. N. 1880, 118,
SPECIAL INDORSEMENT. 21
titled to return of the money, even though the plaintiff
has given notice of appeal (to). But where leave to defend
has been given, appeals are not encouraged (n). Semble,
not equally so, where leave is refused (o). Generally,
leave to defend is only refused where there is no doubt,
and the defendant has clearly not even a " plausible " de-
fence (p). But where the defendant, without showing an
absolute defence, merely discloses facts deemed sufficient
to entitle him to defend, as e.g. raising a question whether
a release was by way of escrow (ry), or that there are rea-
sons for interrogating the plaintiff (r), the Court has dis-
cretion as to giving leave (s). And a claim to bring a
counter-claim does not necessarily carry with it leave to
defend (t).
Where the defendant sets up a defence as to part, the
plaintiff shall have judgment as to the undefended part on
such terms as the Judge thinks fit, and the defendant may
be allowed to defend as to the residue (u) without being
compelled to pay the part admitted to be due as a condition
precedent of being thus allowed to defend (v). And one
defendant having a good defence may be permitted, and
any other defendant, not having such defence, may not be
permitted to defend; in which case final judgment may be
entered and execution issued against the latter without
prejudice to the plaintiff's right of proceeding against the
former (w).
12. Where the writ is indorsed under O. III. r. 8 (x),
with a claim that account be taken, unless the defendant
appears, and by affidavit or otherwise satisfies the Court
or a Judge, that there is some preliminary question to be
tried, the Order for account shall be forthwith made (y)
(to) Yorkshire Banking Co. v. Beatson (2), 4 C. P. D. 213.
(tj) Papayanniv. Coutpas, W. N. 1880, 109.
(o) Wallingfbrd v. Mutual Society, 5 A pp. Cas. 685.
(p) Beckintjliam v. Owen, W. N., 1878, 215 ; Thompson v. Mart-hull,
W. N., 1879, 213. See also WaUingford v. Mutual Society, 5 App. Cas. 685.
(q) Berridje v. Roberts, W. N. 187(5, 86.
(r) Harrison v. Bottenheim, 26 W. R. 362.
(*) Bay v. Barker, 4 Ex. D. 279 ; 48 L. J. (Ex.) 569.
(t) Anglo- Italian Bank v. Daiies, 38 L. T. 197.
(u) 0. XIV., r. 4.
(v) Demi's v. Seymour, 4 Ch. D. SO.
(w) 0. XIV. r. 5.
(a-) See para. 3 (y) 0. XV. r. 1.
22 THE LAW OF PRACTICE:
on application by summons after the time for appearance
lias expired, supported by affidavit concisely stating the
grounds of claim to account (2), such Order to be so
made as not to prejudice the trial of issues which may
be raised by pleadings subsequently delivered (a). And
in such a case, matters on further consideration as to
costs may be proved by affidavit (//).
13. All persons may be joined as plaintiffs in whom
tin* right to any relief claimed, and as defendants against
whom any right claimed, is alleged to exist jointly,
severally, or in the alternative, (scnible) where the subject
li uitter is sufficiently ascertained (c). E.g. an action for
libel may be brought jointly by persons not in partner-
ship (<7). And where two or more persons sue on a joint
claim, the defendant may set up against each individual
plaintiff separate counter claims sounding in damages (e),
but cannot, by way of counter claim, set up against a
third person a claim for relief in one only of two incon-
sistent alternatives (/). But a plaintiff can join as defen-
dant to his claim, a person against whom he prays
alternative relief inconsistent with that prayed against
the other co-defendant (g). Judgment may be given for
one or more of the plaintiffs, for such relief as he or they
may be found entitled to, without any amendment, and
against one or more of the defendants, according to their
1 jpective liabilities, without any amendment (h). Unless
the Couri shall otherwise direct; an unsuccessful defen-
dant shall be entitled to costs occasioned by joining a co-
plaintiff who is not found entitled to relief (i). E.g.
where a married woman sues to recover separate estate,
and joins her husband as co-plaintiff instead of making
him a defendant, and the defendant takes this objection, the
0. XV. r. 2.
Q ,11, v. Webster, 12 Cb. I). 771.
th Beaney r. Elliott, W. N. 1880, 09.
(c) Wil on ire Ads, p. 187, quoted in Smith v. Richardson, i
C P. D. 1 16, uid Ci 0. XVII. r 1, para. 25.
(d) Booth v. Briscoe, 2 <-,>. B. I). 496.
(e) Manchester, Sluffidd, and Lincolnshire Railway Co. v. Brooks, 2 Ex.
I). 243.
(/) Evans v. Buck, 4 Ch. D. 432.
(•/; ChUd v. Stevning, 5 Ch. D. 095.
\h) <). XVI. rr. 1, 3.
(*) Do. r . 1.
PARTIES. 23
plaintiff, though successful, may be ordered to pay her
costs of pleadings delivered subsequently to the taking of
the objection (j). And an unsuccessful defendant is not
bound to pay costs occasioned by the plaintiff having
joined other defendants who are successful (/;).
A plaintiff may at his option join all or any of the
persons severally, or jointly and severally, liable on any
one contract (I). — e.g. he may join those only who are
solvent, and need not join or give notice to the others (m).
— and he may join two or more persons among whom he
is in doubt from which he is entitled to redress (w), nor
is it necessary that each of such defendants should be
interested as to all the relief, or every cause of action in-
cluded in such action ; but the Court or a Judge may
make such Order as may appear just, to prevent any
defendant from being embarrassed or put to expense by
any action in which he has no interest (o).
14. Subject to special Order of the Court or a Judge,
parties beneficially interested may be sufficiently repre-
sented by trustees, executors or administrators (p), but
this does not include an administrator ad litem in the
administration of an intestate's estate, where there is a
general administrator (q), and semble, how far the bene-
ficiaries may be sufficiently represented by bare trustees
in redemption and foreclosure actions, depends on the
particular circumstances (r).
15. Married women may sue by their next friend (s),
in which case the Court has discretion as to his giving
security for costs at any stage (t). By leave of the Court
or a Judge not granted on a petition of course (v), a
(j) Roberts v. Evans, 7 Ch. D. 830.
(k) Child v. Stenning, 7 Ch. D. 413.
(/) 0. XVI. r. 5.
(m) Lloyd v. Dimmack, 7 Ch. D. 398.
(n) 0. XVI. r. 6, and see Honduras Inter-Oeeanir Railway Co. v. Tucker,
2 Ex. D. 301.
(o) 0. XVI. r. 4, and see Cox v. Barker, 3 Ch. D. 359.
(p) 0. XVI. r. 7.
(q) DowdesweU v. Dowdeswell, 9 Ch. D. 294.
(r) Mills v. Jennings, 13 Ch. D. 049.
(s) 0. XVI. r. 8.
(t) Mariano v. Mann, 14 Ch. D. 419.
(u) Noel v. A\~oel, 13 Ch. D. 510. This seems to alter the old practice aa
stated in Daniell'a Ch. Pr. p. 164.
24 THE LAW OF PRACTICE.
married woman may sue or defend without her husband,
as e.g. where she is defendant, and her husband is the
plaintiff's next friend (v), giving security for costs not as
of course, but if required by the Court or a Judge (w).
Where she sues for recovery of separate estate in
Equity (.r), or under the Married Women's Property
Act, 1870 (//), her husband should be a co-defendant.
16. An infant may sue by his next friend (z), who
(xemble) will be the father if living and not having adverse
interest (a), and may defend by a guardian ad litem. A
next friend who refuses to appeal may be removed (b).
An Order for costs against the next friend is personally
final, unless the question be reserved (c). A lunatic may
generally sue by his committee ; and a person of unsound
mind by his next friend, but if found lunatic by inquisi-
tion pendente lite, the action ma} r by leave be continued
by the committee (d). A lunatic may similarly defend
by his committee, and a person of unsound mind by
a guardian ad litem (e).
17. Any two or more partners may sue in the name
of their firm, and any two or more (/), or one carrying
on business in the name of a firm apparently consisting
of more than one person (g), maybe sued in the name of
such linn. Where a writ is sued out in the name of a
firm, (1) the defendant may in writing call on the plaintiff's
or their solicitors to declare the names and residences of
all partners, in default of which declaration all proceed-
ings shall be stayed upon terms (h) ; and (2) any party
to an action may apply by summons to a Judge for a
statement of the names of the co-partners in the plaintiff
or defendant firm (i). But the Order for such statement
<r, Lewis v. Nobis, 8 Ch. D. 591.
Nod v. Nod, 13 Ch. D. 510.
(x) Roberts v. Evans, 7 Ch. D. 830.
I?/) Hancock v. J.abUxche, 3 C. P. D. 197.
I 0. XVI. r. 8.
(a) Woolfv. Pemberton, 6 Ch. D. 19.
\b) Dupuy v. Welsford, W. N. 1880, 121.
' 'cdey v. Caley, 25 \V. R. 528.
\d) Oreen v. Pratt, 41 L. T. 30.
it) 0. XVIII.
if) <). XVI. r. 10.
o/. Do. r. 10a.
(A) U. VII. r. 2. (t) 0. XVI. r. 10.
INFANT. — EXECUTOR. 25
cannot be enforced by attachment under O. XXXI.
r. '20 (J). "Where a judgment has been obtained against
two out of three co-partners, this bars an action for
partnership debt against the third (k).
18. One or more of numerous parties having the same
interest in the same action as trustees, underwriters,
shareholders (Z), mortgagees (m), &c, may sue or be sued
or be authorised to defend on behalf of all (n). Where
a plaintiff so sues, it should be so stated in the title of
the writ and in the indorsement of claim (o). The other
members of a class, if fairly represented, will be bound
by the judgment (p). The Court, if it seem fit, may
appoint a person or persons to represent an heir-at-law,
next-of-kin, or class to be afterwards ascertained, for the
determination of questions of construction, the judgment
on which shall bind the person or class thus repre-
sented (q) ; or may order proceedings up to any given
point to be carried on without some particular party
being represented (>•).
19. Subject to the Judicature Acts and Rules, it is
provided (.s), in accordance with 15 & 1G Vict. c. 86,
s. 42, that a plaintiff falling under any of the five follow-
ing characters may have a decree without joining or
serving notice on others having similar interest : —
(1) An heir, next-of-kin, residuary devisee or legatee ;
(2) a legatee interested in a legacy charged on real estate.
or any other person interested in the proceeds of real
estate directed to be sold ; (3) a cestui que trust under a
deed or instrument ; (4) one interested in the protection
of property pending litigation or in cases of the nature of
waste ; (5) an executor, administrator, or trustee desiring
a decree against any one legatee, next-of-kin, or cestui
{j) Pike v. Keene, 24 W. R. 322. See para. 53.
(£) Kendall v. Hamilton, 4 App. Cas. 504.
(I) See Daniell's Ch. Pr. p. 172.
(m) Luke v. South Kensington Hotel Co., 11 Ch. D. 121.
(») 0. XVI. r. 9.
(o) Fryer v. Royle, 5 Ch. P. 540: following Warraker v. Pryer, 2 Ch. D.
109, not following Cooper v. Blissett, 1 Ch. D. 691.
(p) Commissioner.* of Sewers, dr.. v. Gil/ath/, 3 Ch. D. 610.
(9) O. XVI. r. 9a, and see Cluster v. Phillips, 4 Ch. D. 230.
(?•) Hobba v. Reid, W. N. 1876, 95.
(«) 0. XVI. r. 11,
c
26 THE LAW OF PRACTICE.
que trust for administration of the estate, or execution of
the trusts (*).
The Court may, if it see fit, require parties to be
added, or give the conduct of the suit to one, and may
make such Order as to place the defendant on the same
footing as to costs with all other parties having a common
interest. Persons having a common interest but not
being parties shall be served with notice of the decree,
<>r of Order on further consideration (//), and be bound
thereby, and may by an Order of course have liberty to
attend, and may apply to the Court to add to the decree.
Such service is to be made on infants or persons of
unsound mind as is made in the case of a writ of
summons (v). A creditor may not in an administration
action without leave join any party other than the
executor or administrator (w).
20. The Court or a Judge may, with or without ap-
plication of either party, upon terms, at any stage, as at
trial (.r) or after decree (?/), order parties to be struck out
or added (z). A defendant may be struck out notwith-
standing he has delivered his statement of defence {a),
but have to strike out one and amend does not carry
Lave to strike out another (b), nor does an Order for
amendment enable the plaintiff to strike out a defendant
whose interest has determined (c). Where a plaintiff
>iu s for himself and other bondholders and one dissents,
the dissentient should be made a party (d). The assignee
of a defendant jinulcutc lite may be added (e), but an
officer of a corporation cannot be added merely for the
purpose of discovery (/). Nor, where an action is rightly
(i. B. l-J, rules 1-6.
I it) In ri Rees, Eees v. Gregory, 40 L. J. Ch. I). f>68.
0. XVI. r 12a. (w) Do. r. 12b.
r) Kino v. Rudkvn, 6 Ch, D. 160.
Mi, urn y.Qt in ml v. Council of Birmingham, W. N. 1880, 112.
0. XV I. r. 18, and see Vol <le Travert AsphaUe Co. v. London Tram-
Co., 10 I.. T. 1 38.
(a) ViiUntiii v. Birmingham <t- Midland Land Investment Corporation,
â– i Ch. I). 859.
/,, Winmr v. ftofhh, 11 Ch. I). Y.W.
Elam v. Vemghan, W. X. 1879, 69.
â– i, Wilton v. Church, 9 Ch. D. 552.
. Kino v. Rudhin, 6 Ch. D. L60.
(f) Wilton v. Church, 9 Ch. D. 552.
STRIKING OUT PARTIES. 27
brought by a representative under O. XVI. r. 9 ((f), can
other representatives be added on the defendant's appli-
cation merely to increase his security for costs {it).
Scmhle, a person against whom the plaintiff claims no
relief cannot be added on the defendant's application
merely to enable such person as a party to set up a
counterclaim (i). No one shall be added as plaintiff or
next friend of a plaintiff without his own consent. And
the proceedings against added defendants shall be deemed
to begin only from the time when they are served with
summons or notice (j). Application to strike out or add
a party may be made before trial by motion or in general
by summons (k), and at the trial, even during examination
of witnesses (I), in a summary way (m). Where the part}'
added is out of the jurisdiction, the writ should be
amended by indorsement before service (»).
21. Marriage, death, or bankruptcy of a party, or
devolution of an estate by operation of law or otherwise,
shall not cause an action to abate or become defective, if
the cause of action survive (o) in some person before the
Court (p). Therefore, where an action in tort is brought
against a defendant personally who dies pendente lite, but
by shaping the allegations differently his personal repre-
sentative may be rendered liable, leave to amend may be
given so as to bring a person before the Court (q). A
husband, personal representative, trustee, or other suc-
cessor in interest may, if necessary, (1) be made a party
or being one already be made a party in another capacity
by an Order obtained ex parte and of course (/) to be
(>/) See para. IS.
(A) Ik Hart v. Stevenson, 1 Q. B. D. 313.
(t) Norris v. Beazley, 2 C. P. D. 80, decided partly with reference to the
tlieu procedure on Bills of Exchange. But it is submitted that the above
principle may still be upheld.
(/) 0. XVI. r. 13.
(k) Wilson v. Church, 9 Gh. P. 552.
(/) Ruston v. Tvbin, \\\ N. 1SS0, 19.
(to) 0. XVI. r. 14.
(n) Keatev. Phillip*, W. N. 1878, 186.
(o) 0. L. rr. 1, 2, 3, and see Twycrosa v. Grant, 4 C. P. D. 40.
(p) Eldridge v. Burgess, 7 Ch. I). 411.
Ij) Ashley v. Taylor, 48 L. J. (Oh. D.), 406.
(r) Vara, v. Whittaker, W. N. 1876, 17 ; Middleton v. Polloci; W. X.
1876, 250.
c 2
28 THE LAW OF PRACTICE.
p< r>vd, unless otherwise directed, on all necessary parties;
or (2) may be served with notice on terms. And such
Order for the disposal of the action may be made as
seems just («s). The person served with an Order may
apply to have it discharged or varied within twelve days
after service, or after appointment of a guardian ad litem,
where necessary (/). A sole plaintiff, on becoming bank-
rupt, cannot proceed with the action, but if one of his two
trustees refuse to go on, the other may have an Order of
course, making the co-trustee a defendant (m). Where a
plaintiff makes default in pleading and then becomes
bankrupt, notice of motion to dismiss for want of prose-
cution should he served on his trustee, who may have
the option given him to come in and proceed with the
action (v). A person may be appointed to represent the
estate of a deceased insolvent and intestate plaintiff to
enable the defendant to move for dismissal in default of
prosecution (w), Where a sole plaintiff dies pending a
suit against his trustee for breach of trust, his repre-
sentatives may he allowed the benefit of a decree without
being made parties (x). The death of a sole defendant
is no obstacle to the appointment of an interim receiver,
where advisable (//). An Order for inquiry may after the
death of a sole petitioner be continued for the benefit of
his representatives (.:). Where a defendant dies before
service of judgment had been effected on him, leaving
no personal representative, an affidavit may be filed and
notice served on the widow (<t). Where an executor after
a decree in favour of Ids testator and notice of appeal
obtains an < >rder permitting him to continue proceedings,
he becomes m substantive party and personally liable for
costs (b). Where notice of trial is served on a defendant
(.'i o. L. it. 2, 4, />, and for form of petition for Order, see Darnell's
I ed. p. 9 ; and ;is to effect of Statutes of Limitations, see Briijht. v.
- - ipbdl, W. N. 1880, 20.
' 0. L. rr. 0, 7.
it) Jackson v. North Eastern Railway Co., 5 Ch. D. 844.
Wright v. Swindon Railway Co., 1 Ch. JJ. 104.
Wingroxi v. Thompson, II Ch. 0. 419.
>.,„, v. Bennet, W. X. 1876, 152.
/ n Parker, Cash v. Parker, 12 Ch. D. 293.
In n Atkins' Estate, 1 Ch. D. 82.
.- A/forth v. Espinach, 'â– '<*'< L T. 367.
Uoynton v. Boynton, 4 App. Cas. 733.
CHANGE OF PARTIES. — THIRD PARTY. 29
who afterwards becomes bankrupt, notice of motion for
judgment against the trustee who does not appear need
not be filed (c). And where out of several defendants
jointly and severally liable some become bankrupt, the
action may proceed against the others, without making
the trustees of the bankrupts parties, or serving them
with notice (d). Where an Order nisi has been obtained
charging stock of a judgment debtor, and it afterwards
appears that he was dead before the Order was obtained,
such Order cannot under these Rules be made absolute [e}.
Nor can the assignee of a creditor proceed with a winding-
lip petition; such assignment is bad for maintenance ( f)\
22. Where a defendant is added, unless otherwise
ordered, an amended writ of summons or notice shall
be served on him ; and, if a previous statement of claim
had been delivered, a copy of an amended statement of
claim shall be delivered to him, either along with tbe
service of the amended writ or notice, or within four
days alter appearance (g).
23. When defendants or plaintiffs and defendants
together (//) claim to be entitled to contribution, in-
demnity, remedy, or relief over against a third person,
or where it appears that a question in the action should
be determined between the plaintiff, defendant, and a
third person, or between any or either of them, on notice
issued by leave and served on such person (>'), a proper
Older may he made (j), where, in the discretion of the
Judge, it appears that it will not tend to prejudice or
delay the plaintiff (A;). It is not necessary that the
whole question should be identical between the different
parties (/). One defendant may defend as against the
(<•) Charlton v. Dickie, 13 Ch. D. 160.
(d) Lloyd v. Dimmack, 7 Ch. I». 398.
(e) Fin,,, i v. Hinde, 4 Q B. D. 102.
(/) lu re Paris Skating Rink ''■•., 5 Ch. D. 9.59.
(.V) O. XVI. r. 15.
(A.) Trdeven v. />'/-,<//, 1 Ch. D. 176.
(/) 0. XVI. r. 18.
(j) Do. r. 17.
(k) Bower v. Hartley, 1 Q. B. 0. 652, and compare Ex parte Smith, In
re Collie, 'J Ch. D. 51 ; Harry v. Davey, "J Ch. I>. 7.">1 ; Horwell v. London
General Omnibus ('<>., 2 Ex. i>. 365.
(/) Benech w FV-ort, 1 Q. !'.. I>. 41'.' ; Swansea Shipping Co. v. Duncan,
1 Q_. D. D. 014 ; Bower v. JJartlcy t 1 Q. 13. \). i<J2:
30 THE LAW OF PRACTICE.
plaintiff", and claim as against a co-defendant, and delivery
of such pleading is sufficient notice to such co-defend-
ant (m), even without an Order to that effect (»)• Where
not so delivered, notice may be served on the co-defendant,
and time allowed for him to deliver any further pleading (o).
But such pleading (i.e. against a co-defendant alone) is
not a counterclaim, which must he against the plaintiff
alone or jointly with some other person (p). Nor may
a co-defendant join a third person as an alternative to a
counterclaim (q). But he may combine a defence, reply
to a counterclaim of a co-defendant, and new claim
against a co-defendant, (1) where all parties agree to have
it so tried (/•), (2) scmble, in other cases at the discretion
of the Judge (s). Scmble, a plaintiff in an action in one
Division cannot be served with a third party notice by a
defendant against whom another plaintiff claims the same
relief in another Division (t). A defendant who is a
residuary legatee may apply for a third party notice to
join the executor as a party to the action («)• Where
a third person is to be brought in for the determination
of a question in the action, before or at the time of
making the Order, the Court or a Judge shall direct
proper notice to be given by the plaintiff to such person,
and if made at the trial, the Judge may postpone such
trial (r). Where a counterclaim is set up against others
besides the plaintiff, or any third person is brought in
by a defendant on his counterclaim, this shall be shown
by a proper addition to the title of the defence, and such
defence shall be delivered within the proper period (iv).
24. A third party in default of appearance shall be