appointing executors, but no representation was taken out to his estate. B. then gave notice to the company in writing of A.'s death, and that he, B., held the policies as security for his debt, and the company acknowledged the receipt of the notice in terms of the Policies of Assurance Act, 1867, s. 6. Proper evidence of A.'s death having been subsequently produced to the company, they wrote to B. that the claim under the policies would be paid at the expiration of three months, but that the assent of A.'s legal personal representative would be required before settlement.

After the expiration of the three months, B. being unable to obtain payment of the policy moneys (although his debt was admitted by A.'s executors, and he offered the company an indemnity), brought an action for that purpose against the company, insisting that A.'s deposit and letter constituted an equitable assignment of the policies within the Policies Act, 1867, and therefore enabled him to give a valid discharge for the moneys. It was held that there had been no equitable assignment of the policies within the Act, and that the company were justified in refusing to pay him in the absence of A.'s legal personal representative (x). The same principle was applied to suits by lessees by parol for tithes (y).

In all such cases the assignor was generally made a co-plaintiff with the assignee, who indemnified him against all costs and charges. But if the assignor, when a proper indemnity had been offered him, refused to allow his name to be used in such a suit, or obstructed the assignee when so using it, the Court of Chancery would intervene with its assistance on behalf

(x) Crossley v. City of Glasgow Life Assurance Co., 4 Ch. D. 421. But it was held that the Court had power to dispense with the necessity for the legal personal representative, and to order pay

ment of the policy moneys, which it did, under 15 & 16 Vict. c. 86, 8. 44.

(y) Henning v. Willis, 3 Wood, 29; Jackson v. Benson, M'Lel. 62.

of the assignee. But the assignee could not generally sue alone for a legal chose in action in a Court of Chancery, unless the assignor did so refuse or do some act to prevent the assignee from recovering it at law, in the assignor's name (z).

It was open for the assignee, upon the assignor's refusal to be joined as a co-plaintiff, to make the assignor a co-defendant with the debtor or other person from whom satisfaction was sought (a).

And, it is submitted, that in all cases not falling within any customary usage or statutory enactment to the contrary, the old Chancery practice of necessarily making the assignor a party to the proceedings on one side or the other is still the proper and only mode of procedure in the recovery by the assignee of an assigned chose in action. But before joining the assignor it is still essential either to obtain his consent or to communicate with him and offer all terms necessary for his protection from liability (b).

And this may be done after action has been commenced. It is provided that—

"Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a judge may, if satisfied that it has been so commenced through a bonâ fide mistake, 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" (c).

"No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court

(z) Hammond v. Messenger [1838], 9 Sim. 327.

(a) Cholmondeley v. Clinton, 4 Bligh. 123; 22 R. R. 83; Sayer v. Wagstaffe, 2 Y. & C. C. C. 230;

Ryan v. Anderson, 3 Mad. 174;
Blair v. Bromley, 5 Hare, 554.

(b) Turquand v. Fearon, 4 Q. B. D. 280.

(c) Ord. XVI. r. 2; The Duke of Buccleugh, (1892) P. 211.

may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice " (d).

Rule 2, above cited, has been held to apply to cases where, after action brought, it was discovered that some person ought to have been included as plaintiff, but that it was not meant to confer upon the judge unlimited discretion to remodel the proceedings, and that it was not meant to leave the party whom it is proposed to add as plaintiff, to apply to have terms inserted in the order for his own protection; and that it is for the original plaintiff himself in the first instance to show that the omission was owing to a bonâ fide mistake, and that he has complied with any terms which a judge under the circumstances would think proper to impose (e). But a

(d) Ord. XVI. r. 11; Ayscough v. Bullar, 41 Ch. D. 341.

(e) Turquand v. Fearon, supra (p. 282).

new plaintiff would not generally be allowed, if the result were to introduce a new cause of action (ƒ).

A plaintiff company purported to be the assignees of all the rights of an old and dissolved company, and, amongst others, of a right of action against the defendant. It was held that this right had not passed, and the plaintiffs were not allowed to add the directors of the old company as plaintiffs, for where the original plaintiff has no right of action he cannot by amendment under this rule introduce a plaintiff in whom there is a right of action and so make an entirely new case (g).

A. recovered a debt in an action against B. A judgment creditor of A. obtained a garnishee order against A. It was held he was entitled to be joined as coplaintiff with A. in the action against B. (1).

But where the plaintiffs had advanced money to building contractors on the security of claims which the building contractors had against the defendant, and the action was in respect of disputed extras, and had been referred for accounts to be taken, the defendant was not allowed to add the contractors as parties in order that they might be bound by the accounts. It was held that the contractors could not be made defendants in an action in the Queen's Bench Division, because their claims did not conflict with those of the plaintiffs, and that they could not be made plaintiffs against their will and in their absence (i).

It is to be remembered that a new party will not be

(f) Dalton v. Guardians of St. Mary Abbots, 47 L. T. 349.

(g) But see Ord. XXVIII. r. 1; Carswell v. Hyland, 3 T. L. R. 708; Ayscough v. Bullar, 41 C. D. 341; N. Westminster Brewery Co. v. Hannah [1876], W. N. 216; [1877] 35; Walcott v. Lyons, 29 C. D. 584; Cupples v. Strahan, 29 L. R. Ir. 120; Dixon v. Mayor of Limerick, 26 Ir. L. T. 324; Showell v. Winkup, 60 L. T. 391.

(h) Wallis v. Smith, 46 L. T. 473.

(i) Sanders v. Peek [1884], 32 W. R. 462. See also Van Gelder v. Sowerby, 44 Ch. D. 375; Sheehan v. G. E. Rail. Co., 16 Ch. D. 59; Richards v. Butcher, 62 L. T. 867; Emden v. Carte, 17 Ch. D. 169; Dix v. G. W. Rail. Co., 34 W. R. 712; Dixon v. Mayor of Limerick, 26 Ir. L. T. 324.

allowed to be added as a co-plaintiff when the Statute of Limitations has barred the plaintiff's claim ().

If a necessary party, such as the assignor, refuse to be joined as co-plaintiff, he should be joined, as has been said, in the capacity of co-defendant (1).

CHANGE OF PARTIES BY DEATH, ETC.

It is further provided that—

"A cause or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death (m).

"In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a cause or matter, the Court or a judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, trustee, or other successor in interest, if any, of such party be made a party, or be served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court or judge shall

(k) Hudson v. Fernyhough, 61

L. T. 722.

(1) Cullen v. Knowles, (1898) 2 Q. B. 380; Luke v. S. K. H. Co., 11 Ch. D. 121; Gandy v. Gandy, 30 Ch. D. 57; Turquand v. Fearon, supra. Cp. Ord. XVI. r. 8, and notes thereon generally in Annual Practice.

(m) Ord. XVII. r. 1. But see Twycross v. Grant, 4 C. P. D. 40; Phillips v. Homfray, 24 Ch. D. 456; Batthyany v. Walford, 36 Ch. D. 281; Davison v. Reeves, 8 T. L. R. 391; Concha v. Murietta, 40 Ch. D. 553; Re Sharpe, (1892) 1 Ch. 154.