2. The application by the plaintiff for leave to enter final judgment Ord. XIV. under the last preceding rule shall be made by summons returnable not Application less than four clear days after service, accompanied by a copy of the to be by affidavit and exhibits referred to therein.

summons.

affidavit or

3. The defendant may show cause against such application by affi- Defendant may show davit, or (except in actions for the recovery of land) by offering to bring cause against into Court the sum indorsed on the writ (y). Such affidavit shall state application by whether the defence alleged goes to the whole or to part only, and (if so) payment into to what part, of the plaintiff's claim. And the judge may, if he think Court. fit, order the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined upon oath (z): or to produce any leases, deeds, books, or documents, or copies of or extracts therefrom.

(y) As to the general principles of giving leave to defend, see Wallingford v. Leave to Mutual Society, 5 App. Cas. p. 704. The order only applies to cases that are really defend. undefended (Thompson v. Marshall, 28 W. R. 220). If the defendant can show a primâ facie defence (Harrison v. Bottenheim, 26 W. R. 362), or (without disputing the claim) has a substantial counter-claim (Anglo-Italian Bank v. Davies, W. N. (1877), 263; W. N. (1878), 10; 38 L. T. 197); or a set-off (Groome v. Rathbone, 41 L. T. 591), or is a surety who has not acknowledged that he is indebted, and there is nothing to show that the defence is merely for delay (Lloyd's Banking Co. v. Ogle, 1 Ex. D. 262), he will be allowed to defend; and see further, Runnacles v. Mesquita, 1 Q. B. D. 416; Beckingham v. Owen, W. N. (1878), 215; Thorne v. Seel, ibid.; Golding v. Wharton Saltworks Co., 1 Q. B. D. 374; Fuller v. Alexander, 47 L. T. 443; Davis v. Spence, 1 C. P. D. 721.

Where the nature of the claim involves taking an account Ord. XIV. is not Account. applicable (Wallingford v. Mutual Society).

Hearsay evidence is admissible for the purpose of resisting the plaintiff's applica- Hearsay tion (Harrison v. Bottenheim, 26 W. R. 362).

evidence.

A defendant is not necessarily entitled to defend merely because he brings the Bringing sum claimed into Court (Crump v. Cavendish, 5 Ex. D. 211).

money into As to conditional leave to defend, see Ray v. Barker, 4 Ex. D. 279; and rule 6, Court. post, p. 332. Where leave to defend has been given an appeal will not readily be Conditional entertained (Papayanni v. Coutpas, W. N. (1880), 109). The judge may allow the leave to plaintiff to file affidavits in reply to the defendant's affidavit (Girvin v. Grepe, 13 defend. Ch. D. 174; 28 W. R. 123; Rotherham v. Priest, 49 L. J. C. P. 105; Davis v. Spence, 1 C. P. D. 719).

(2) The power of examining parties given by this rule is only to be exercised in exceptional cases (Millard v. Baddeley, W. N. (1884), 96).

Appeal. Plaintiff may file affidavits in reply.

4. If it appear that the defence set up by the defendant applies only Examination. of parties. to a part of the plaintiff's claim, or that any part of his claim is Judgment admitted, the plaintiff shall have judgment forthwith for such part of may be given his claim as the defence does not apply to or as is admitted, subject to amount such terms, if any, as to suspending execution, or the payment of claimed. the amount levied or any part thereof into Court by the sheriff, the taxation of costs, or otherwise, as the judge may think fit. And the defendant may be allowed to defend as to the residue of the plaintiff's claim (a).

(a) As to this rule see Dennis v. Seymour, 4 Ex. D. 80; Hanmer v. Flight, 24 W. R. 346; 36 L. T. 279.

against some of the defendants only.

5. If it appears to the judge that any defendant has a good defence Judgment to or ought to be permitted to defend the action, and that any other may be given defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue exe

Ord. XIV. cution upon such judgment without prejudice to his right to proceed. with his action against the former.

Leave to defend.

Conditional

leave to defend.

Order for accounts with usual directions.

Order for accounts.

Form of order.

Administration. Foreclosure.

Order may be made in

Queen's

Bench Division.

Application

to be by

summons.

6. Leave to defend may be given unconditionally or subject to such terms as to giving security, or time and mode of trial (in cases which, under these rules, may be tried without a jury) or otherwise, as the judge may think fit (b).

(b) As to conditional leave to defend, see Ray v. Barker, 4 Ex. D. 279. Where the defendant has brought money into Court as a condition of being allowed to defend and gets judgment in his favour, he is entitled to a return of the money, although the plaintiff has given notice of appeal (Yorkshire Banking Co. v. Beatson, (2), 4 C. P. D. 213).

ORDER XV.

APPLICATION For an Account.

1. Where a writ of summons has been indorsed for an account, under Ord. III. r. 8 (c), or where the indorsement on a writ of summons involves taking an account, if the defendant either fails to appear, or does not after appearance, by affidavit or otherwise, satisfy the Court or a judge that there is some preliminary question to be tried, an order for the proper accounts, with all necessary inquiries and directions now usual in the Chancery Division in similar cases (d) shall be forthwith made.

(c) For Ord. III. r. 8, see ante, p. 309. Under the corresponding repealed rule (which, however, was limited to cases of "ordinary account it was held that an account against an executor on the footing of wilful default (as to which see post, p. 397), could not be ordered (Re Bowen, 20 Ch. D. 538). The present rule contains no such restriction, and extends to all cases in which the plaintiff in the first instance desires to have an account taken. The words "or where the indorsement on a writ of summons involves taking an account,' were not in the repealed rule. (d) For form of order, see Seton, p. 8; but the words added at the end of that form" and the judge not requiring any trial of this action other than this application" are not to be used indiscriminately so as to prejudice any issues that may be raised by the subsequent pleadings (Gatti v. Webster, 12 Ch. D. 771).

The usual decree for administration of the real and personal estate of a deceased person may, it is said, be made under this order (Seton, pp. 801, 803, 848; sed qu.); but not, it seems, an order for foreclosure in default of payment by the mortgagor of what may be found due from him (Lloyd v. Lloyd, 26 W. R. 572); and in a recent case, Bacon, V.-C. refused to make a redemption decree on a summons under the order, saying it was a mistake to imagine that the order was meant to enable the Court to do what would be equivalent to making a decree; and his lordship limited the order to one for accounts only (Clover v. Wilts Building Society, 50 L. T. 382; 32 W. R. 895; W. N. (1884), 110; and see Borthwick v. Ransford, W. N. (1884), 199). But see contra, Davies v. Smith, W. N. (1884), 242.

An order for an account may be made, and the account taken, in the Queen's Bench Division (York v. Stowers, W. N. (1883), 174); but see Leslie v. Clifford, 50 L. T. 591.

2. An application for such order as mentioned in the last preceding rule shall be made by summons, and be supported by an affidavit when necessary, filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The application may be made at any time after the time for entering an appearance has expired (e).

(e) See further as to the power of the Court to order accounts, Ord. XXXIII. rr. 2-9, post, p. 397, seq.

ORDER XVI.

PARTIES.

I. Generally.

alternative.

1. All persons may be joined as plaintiffs in whom the right to any Joinder of relief claimed is alleged to exist, whether jointly, severally, or in the claiming alternative (ƒ). And judgment may be given for such one or more jointly, severof the plaintiffs as may be found to be entitled to relief, for such relief ally, or in the as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge in disposing of the costs shall otherwise direct (g).

(f) See Booth v. Briscoe, 2 Q. B. D. 496, where it was held that eight persons Joinder of (not jointly interested) might join in bringing an action of libel, but that the plaintiffs. damages ought to be separately assessed. See, however, Appleton v. Chapel Town

Paper Co., 45 L. J. Ch. 276.

(g) The rule makes no alteration in the practice as regards security for costs Security for (D'Hormusgee v. Grey, 10 Q. B. D. 13).

A joinder which is embarrassing will be struck out (Smith v. Richardson, 4 C. P. D. 112).

costs.

2. Where an action has been commenced in the name of the wrong Substitution person as plaintiff, or where it is doubtful whether it has been or addition of plaintiff. commenced in the name of the right plaintiff, the Court or a judge may, if satisfied that it has been so commenced through a bona fide mistake (h), and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just (i).

(h) A mistake in law is within the rule (Duckett v. Gover, 6 Ch. D. 82). But Mistake in there must have been a bond fide mistake (Clowes v. Hilliard, 4 Ch. D. 413).

thereto.

law.

(i) As to the time and mode of application, see r. 12, post, p. 337, and note Substituting or adding plaintiffs.

As to the conditions on which the assignor of a debt will be added as plaintiff when an action has been commenced by the assignee, see Turquand v. Fearon, 4 Q. B. D. 280; and as to substituting infant cestuis que trust as plaintiffs instead of their trustee, see Tildesley v. Harper, 3 Ch. D. 277.

Where an action was brought by a tenant for life for specific performance of an Cases. agreement to accept a lease and the plaintiff died, and it was then discovered she had no power of leasing, the Court added her executor and the remaindermen as co-plaintiffs (Long v. Crossley, 13 Ch. D. 388). Where a paving company paved a road and contracted with the vestry to keep it in repair, and the road was damaged by a tramway company, the vestry was substituted as plaintiff in lieu of the paving company in an action against the tramway company (Val de Travers Co. v. London Tramways Co., 48 L. J. C. P. 312; W. N. (1879), 46). Where a shareholder brought on behalf of himself and the other shareholders an action which ought to have been brought in the name of the company, the company was added as a co-plaintiff (Duckett v. Gover, 6 Ch. D. 82); and so where the plaintiffs had assigned to a company all their rights under an agreement, which they sought to set aside (Ruston v. Tobin, W. N. (1880), 19). And see r. 11, post, p. 336, and notes thereto.

3. Where in an action any person has been improperly or unneces- Improper sarily joined as a co-plaintiff, and a defendant has set up a counterclaim or set-off, he may obtain the benefit thereof by establishing his set-off or counterclaim as against the parties other than the co-plaintiff

joinder of plaintiff where there is claim or set

a counter

off.

Ord. XVI.

Joinder of defendants liable jointly, severally, or

in the alterna

tive.

Who may be

made parties for payment of costs only.

Inconsistent alternatives.

Defendant not interested as to all the

so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon.

4. All persons may be joined as defendants against whom the right to any relief (k) is alleged to exist, whether jointly, severally, or in the alternative (1). And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

(k) It has been held that a solicitor, an agent, or an arbitrator might be made a party simply for the purpose of praying costs against him (Mathias v. Yetts, 46 L. T. 497; 4.-G. v. Vestry of Bermondsey, 23 Ch. D. 60; and see Heatley v. Newton, 19 Ch. D. 326); but no other person could be made a party merely for this purpose (Weise v. Wardle, 19 Eq. 172; see Attwood v. Small, 6 Cl. & F. 232; A.-G. v. Vestry of Bermondsey, where it was held that it did not extend to corporators or vestrymen). Having regard, however, to the decision of the Court of Appeal in the recent case of Burstall v. Beyfus, 26 Ch. D. 35, it may be doubted whether this rule is still in existence, and it would certainly not be safe to make a solicitor a party merely in order to ask costs against him, except in a very strong case; see also Barnes v. Addy, 9 Ch. 244.

() As to the alternatives being inconsistent, see Honduras Ry. Co. v. Tucker, 2 Ex. D. 301; Evans v. Buck, 4 Ch. D. 432; Child v. Stenning, 5 Ch. D. 695; Bagot v. Easton, 7 Ch. D. 1; Howell v. West, W. N. (1879), 90.

5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included relief claimed. in any proceeding against him; 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 being required to attend any proceedings in which he may have no interest (m).

(m) See Cox v. Barker, 3 Ch. D. 359.

6. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally liable on any one contract, including parties to bills of exchange and promissory notes (n).

(n) This rule is similar to Cons. Ord. VII. r. 2 (now repealed), by which it was provided as follows:

Where the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the Court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable.

The following cases were decided under the repealed rule as to suing partners or trustees separately from their co-partners or co-trustees; Coppard v. Allen, 2 De G. J. & S. 173, 180; M'Gachen v. Dew, 15 Beav. 84; Devaynes v. Robinson, 24 Beav. 99; Atkinson v. Mackreth, 2 Eq. 570; Gray v. Lewis, 8 Eq. 526; 8 Ch. 1052; St. Aubyn v. Smart, 3 Ch. 646; Plumer v. Gregory, 18 Eq. 621, 627; from which it would seem that where a general account and general administration was sought, or might be involved in the suit, all the partners or trustees should be parties; but where such persons were sought to be made liable for an ascertained amount, the consolidated order applied.

The personal representative of an executor or trustee who has never acted or received assets was not, even before this rule, a necessary party to a suit for administration of the estate: see Pitt v. Brewster, Dick. 37; and comp. Masters v. Barnes, 2 Y. & C. C. C. 616, with Hall v. Austin, 2 Coll. 570, and Holland v. Prior, 1 M. & K. 237, where the executor had both acted and received assets.

In Wilson v. Rhodes, 8 Ch. D. 777, Fry, J., held, following Perry v. Knott, 5 Beav. 293, that where a breach of trust had been committed, the executors of a trustee by whom a fund had been appropriated might be sued without making the other trustees parties. See also Lloyd v. Dimmack, 7 Ch. D. 398, where two out of three defendants jointly and severally liable to the plaintiff became bankrupt.

7. Where the plaintiff is in doubt as to the person from whom he is Ord. XVI. entitled to redress, he may, in such manner as hereinafter mentioned, Where it is or as may be prescribed by any special order, join two or more doubtful defendants, to the intent that the question as to which, if any, of the ant is liable. defendants is liable, and to what extent, may be determined as between

all parties (o).

(0) See note to rule 4.

which defend

executors,

represent

8. Trustees, executors, and administrators may sue and be sued on Trustees, behalf of or as representing the property or estate of which they are and administrustees or representatives, without joining any of the persons bene- trators ficially interested in the trust or estate, and shall be considered as beneficiaries. representing such persons; but the Court or a judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties (p).

(p) This rule is an extension of 15 & 16 Vict. c. 86, s. 42 (9), which it was held Where did not apply where the trustees had disclaimed (Young v. Ward, 10 Ha. App. lviii); trustees, &c. and see Stansfield v. Hobson, 16 Beav. 189. The above rule as to representation is represent one of general application. Thus, it has been held that trustees represent their their cestuis cestuis que trust in creditors suits (Smith v. Andrews, 4 W. R. 353); administration que trust. suits (Densem v. Elworthy, 9 Ha. App. xlii); actions for foreclosure (Stansfield v. Hobson), and redemption (Mills v. Jennings, 13 Ch. D. 649; 6 App. Cas. 698); actions for partition (Goodrich v. Marsh, W. N. (1878), 186; Simpson v. Denny, 10 Ch. D. 28; Stace v. Gage, 8 Ch. D. 451; 26 W. R. 606); and actions to obtain a declaration of forfeiture (White v. Chitty, 14 W. R. 366); and that executors with a power of sale, and devisees in trust subject to payment of debts, are within the rule (Shaw v. Hardingham, 2 W. R. 657; Smith v. Andrews). But an executor with only an implied power of sale has been held not to be within the rule (Bolton v. Stannard, 4 Jur. N. S. 576; see, however, 22 & 23 Vict. c. 35, ss. 14, 16).

A friendly society which had no treasurer or board to represent it, and had become Trustees of insolvent, and long since ceased to exist, was held to be sufficiently represented on friendly the 'record by the trustees (Pare v. Clegg, 29 Beav. 589). See, too, Bromley v. society. Williams, 1 N. R. 413.

On the other hand, trustees were held not to represent their cestuis que trust on a Not in suit bill to set aside a settlement (Reed v. Prest, 1 K. & J. 183); and in a suit to restore to set aside trust property instituted by the representatives of a trustee against his co-trustee, a settlement. both of whom had committed breaches of trust, in which some of the cestuis que

trust had concurred, such cestuis que trust were held necessary parties (Jesse v. Bennett, 6 De G. M. & G. 609; see, too, Devaynes v. Robinson, 24 Beav. 86, 99, and Payne v. Parker, 1 Ch. 327).

Trustees cannot represent some of the cestuis que trust in any contention inter se, but only where the contention is between all the cestuis que trust on the one hand and a stranger on the other (Hamond v. Walker, 3 Jur. N. S. 686; Payne v. Parker); and when trustees do not agree as to realizing a security and an action is brought by one trustee for that purpose, the cestuis que trust should be parties (Butler v. Butler, 7 Ch. D. 116).

Trustees brought an action to set aside mortgages, making their beneficiaries Costs where defendants; the Court of Appeal held that the beneficiaries were improperly joined, beneficiaries and an order that the mortgagees (against whom relief was obtained) should pay improperly their costs was discharged (Cooper v. Vesey, 20 Ch. D. 611).

9. Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested (q).

(9) As to the practice of one person suing on behalf of himself and others, see Daniell, p. 229 seq., and cases there collected. It has been applied in many cases, e. g. suits by creditors, next of kin, legatees, testamentary appointees of a

joined.

Where there

are numerous

parties having same interest.

Suits by one member of a class on