Att-Gen.

(New Westminster Brewery v. Hannah, W. N. 1876, 215, and in the Court of Appeal, W. N. 1877, 35. v. Birmingham Corporation, 15 Ch. D. 423.)

The principal case upon the right of a plaintiff to get another defendant joined under this rule is Edward v. Lowther (45 Edward v. Lowther. L. J. Q. B. 417; 34 L. T. 255; 24 W. R. 434), 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 Judgment am of opinion that this application should be granted. I do Coleridge, not mean to say that the point would be free from argument if C.J. it rested on the terms of rule 13 (now 11) of Order XVI., but I place my judgment on this, that rules 3 and 13 (now 4 and 11) of the same order are to be read together.

6

Now rule

3 (now 4) 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 (now 11) 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."

So far attention has merely been called to the cases, where 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

of Lord

C

As to applications by third parties to be made plaintiffs or defend

ants.

Striking

out parties.

Third parties.

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. 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 ; 24 W. R. 454.)

By the new Rules of 1883, Order XVI. rr. 48-55, further provision is made for bringing in third parties against whom a defendant claims contribution or indemnity.

R. 48. Where a defendant claims to be entitled to contribution or indemnity over against any person not a party to the action, he may, by leave of the Court or a judge, issue a notice (hereinafter called the third party notice) to that effect, stamped with the seal with which writs of summons are sealed. A copy of such notice shall be filed with the proper officer, and served on such person according to the rules relating to the services of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a judge, be served within the time limited for delivering his defence. Such notice may be in the form, or to the effect of the Form No. 1, in Appendix B., with such variations as circumstances may require, and therewith shall

be served a copy of the statement of claim, then a copy of the writ of summons in the action.

ou bring

ing in

third

parties.

R. 49. If a person not a party to the action, who is served, as Procedure mentioned in rule 48 (hereinafter called the third party), desires to dispute the plaintiff's claim in the action as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the action within eight days from the service of the notice. In default of his so doing, he shall be deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice. Provided always, that a person so served, and failing to appear within the said period of eight days, may apply to the Court or a judge for leave to appear, and such leave may be given upon such terms, if any, as the Court or judge shall think fit.

R. 50. Where a third party makes default in entering an appearance in the action, in case the defendant giving the notice suffer judgment by default, he shall be entitled at any time after the satisfaction of the judgment against himself, or before such satisfaction by leave of the Court or a judge, to enter judgment against the third party to the extent of the contribution or indemnity claimed in the third party notice; provided that it shall be lawful for the Court or a judge to set aside or vary such judgment upon such terms as may seem just.

R. 51. Where a third party makes default in entering an appearance in the action, in case the action is tried, and results in favour of the plaintiff, the judge who tries the action may at or after the trial enter such judgment as the nature of the case may require for the defendant giving the notice against. the third party; provided that execution thereof be not issued without leave of the judge until after satisfaction. by such defendant of the verdict or udgment against him. And if the action is finally decided in the plaintiff's favour otherwise than by trial, the Court or a judge may, on application by motion or summons, as the case may be, order such judgment as the nature of the case may require to be entered for the defendant giving the notice against the third party at

Directions for trial.

Costs.

Disputes

defendants.

any time after satisfaction by the defendant of the amount recovered by the plaintiff against him.

R. 52. If a third party appears pursuant to the third party notice, the defendant giving the notice may apply to the Court or a judge for directions, and the Court or judge, upon the hearing of such application may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed in whole or in part, order the question of such liability as between the third party and the defendant giving the notice to be tried in such manner, at or after the trial of the action, as the Court or judge may direct; and if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.

R. 53. The Court or a judge upon the hearing of the application, mentioned in rule 52, may, if it shall appear desirable to do so, give the third party liberty to defend the action upon such terms as may be just, or to appear at the trial, and take such part therein as may be just, and generally may order such proceedings to be taken, or documents to be delivered, or amendments to be made, and give such directions as to the Court or judge shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the third party shall be bound or made liable by the judgment in the action.

R. 54. The Court or a judge may decide all questions of costs as between a third party and the other parties to the action, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require.

R. 55. Where a defendant claims to be entitled to contribubetween co tion or indemnity against any other defendant to the action, a notice may be issued, and the same procedure shall be adopted, for the determination of such questions between the defendants as would be issued and taken against such other defendant, if such last-mentioned defendant were a third party, but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the action.

As to the construction of rule 55, see Furness v. Booth, 4 Ch. Div. 586; 46 L. J. Ch. 112; 25 W. R. 267.

It seems to be probable that the Courts will lean against any construction of the rules which will delay a plaintiff. It would be intolerable that a plaintiff with a good case against the original defendant should be compelled to wait for his remedy while the defendants were fighting inter se. (Treleaven v. Bray, 1 Ch. Div. 176; 45 L. J. Ch. 114; 33 L. T. 827 ; 24 W. R. 198; Bagot v. Easton, 11 Ch. Div. 392; 27 W. R. 404; Howell v. London Omnibus Company, 2 Ex. Div. 355; 46 L. J. Ex. 700 ; 36*L. T. 637 ; 25 W. R. 610; Associated House Company v. Whichcord, 8 Ch. Div. 457; 47 L. J. Ch. 652; 38 L. T. 602; 26 W. R. 774.) Under the somewhat similar Rules of 1875 it was seldom found profitable in practice to bring in a third party.