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. O. 16. r. 50, (E), am.; R. 211, (O). 0. XVI, rr. 38-40. 115 trial on default of third party. 38. Where a third party makes default in entering an Judgment on appearance in the action, in case the action is tried and results of appearance in favor of the plaintiff, the Judge who tries the action may, at [Cf. R. 212, (O)]. 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 judgment against him. And if the action is finally decided in the plaintiff's favor, otherwise than by trial, the Court or Judge may, on application by motion or summons, 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 any time after satisfaction by the defendant of the amount recovered by the plaintiff against him. O. 16, r. 51, (E). 116 by third party. for directions. (0)]. 39. If a third party appears pursuant to the third-party Appearance notice, the defendant giving the notice may apply to the Application Court or a Judge for directions, and the Court or a Judge, (Cf. R. 213 (1), 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 directs; and if not so satisfied, may order such judgment as the nature of the case requires to be entered in favor of the defendant giving the notice against the third party. O. 16, r. 52, (E). 117 [Cf. R. 213, (2), 40. The Court or a Judge, upon the hearing of the Directions. application mentioned in Rule 39, may, if it shall appear (o). 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, 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 0. XVI, Fr. 4143. 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. O. 16, r. 53, (E). 118 Costs. [R. 214, (O)]. 119 Claim to contribution, 41. 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 directions as to costs as the justice of the case may require. O. 16, r. 54, (E). 42. Where a defendant claims to be entitled to contribuindemnity, tion or indemnity from or relief over against any other etc., against a co-defendant. 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. O. 16, r. 55, (E), am.; R. 215, (O). 120 Plaintiff not to be delayed by questions between defendants. 0. XVII. rr. 1. 2. 121 Action not to abate where cause of action survives. (O)]. 43. A plaintiff is not to be prejudiced or unnecessarily delay. ed by reason of questions between the defendant and the third party in which he is not concerned; and the Court or Judge shall give such directions, on terms or otherwise, as may be necessary to prevent such delay of the plaintiff, where it can be done without injustice to the defendants. R. 216, (O). ORDER XVII. CHANGE OF PARTIES BY DEATH, ETC. 1. 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 [Cr. R. 394, (0)) 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. O. 17, r. 1, (E). 2. In case of the marriage, death, or bankruptcy, or devolution of estate by operation of law, of any party to a 0. XVI, rr. 3-5. 122 In case of or devolution Court may 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, marriage, etc., trustee, or other successor in interest, if any, of such party be of estate, made a party, or be served with notice in such manner and order succesform as hereinafter prescribed, and on such terms as the a party or Court or Judge shall think just, and shall make such order notice. for the disposal of the cause or matter as may be just. 0.17, r. 2, (E). sor to be made served with 123 pendente lite. (R. 395, (O)]. 3. In case of an assignment, creation, or devolution of any Assignment estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved. O. 17, r. 3, (E). 124 parties on interest. 4. Where by reason of marriage, death, or bankruptcy, or Order to add any other event occurring after the commencement of a cause change of or matter, and causing a change or transmission of interest [R. 396, (O)]. or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may be obtained ex parte on application to the Court or a Judge, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence. O. 17, r. 4, (E). 125 order to con tinue action. [R. 397, (O)]. 5. An order obtained as in the last preceding rule Service of mentioned shall, unless the Court or Judge shall otherwise direct, be served upon the continuing party or parties, or their solicitors, and also upon each such new party, unless the person making the application be himself the only new party, and the order shall from the time of such service, subject, nevertheless, to the next two following rules, be binding on the persons served therewith, and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons. O. 17, r. 5, (E). 0. XVII, rr. 6-8. 126 Application to discharge order. [R. 398, (O)]. 127 Application to 128 Death of sole 6. Where any person who is under no disability or under no disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the cause or matter, shall be served with such order as in Rule 4 mentioned, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days from the service thereof. O. 17, r. 6, (E). 7. Where any person being under any disability other than coverture, and not having a guardian ad litem in the cause or matter, is served with any order as in Rule 4 mentioned, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party, and until such period of twelve days shall have expired such order shall have no force or effect as against such last-mentioned person. O. 17, r. 7, (E). 8. When the plaintiff or defendant in a cause or matter dies, and the cause of action survives, but the person entitled to proceed fails to proceed, the defendant (or the person against whom the cause or matter may be continued) may apply by summons to compel the plaintiff (or the person entitled to proceed) to proceed within such time as may be ordered; and in default of such proceeding, judgment may be entered for the defendant, or, as the case may be, for the person against whom the cause or matter might have been continued; and in such case, if the plaintiff has died, execution may issue as in the case provided for by Order XLI., Rule 20. O. 17, r. 8, (E). O. XVIII, r. 1. 129 What causes of action may be joined. [Cf. RR. 232, 237, (O) ]. ORDER XVIII. JOINDER OF CAUSES OF ACTION 1. Subject to the following Rules of this Order, the plaintiff may unite in the same action several causes of action; but if it appear to the Court or a Judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or Judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof. O. 18, r. 1, (E). O. XVIII, rr. 2-6. Recovery of 2. No cause of action shall, unless by leave of the Court or a Judge, be joined with an action for the recovery of land, 130 except claims in respect of mesne profits or arrears of rent or land. double value in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held, or for any wrong or injury to the premises claimed. claim for action for Provided that nothing in this Order contained shall prevent Joinder of any plaintiff in an action for foreclosure or redemption from possession in asking for or obtaining an order against the defendant for foreclosure or delivery of the possession of the mortgaged property to the redemption. plaintiff on or after the order absolute for foreclosure or redemption, as the case may be, and such an action for foreclosure or redemption and for such delivery of possession shall not be deemed an action for the recovery of land within the meaning of these rules. Provided also, that in case any mortgage security shall be foreclosed by reason of the default to redeem by any plaintiff in a redemption action, the defendant in whose favor such foreclosure has taken place may by motion or summons apply to the Court or a Judge for an order for delivery to him of possession of the mortgaged property, and such order may be made thereupon as the justice of the case shall require. O. 18, r. 2, (E). 3. A claim by an assignee in insolvency or for the benefit of creditors, shall not, unless by leave of the Court or a Judge be joined with any claim by him in any other capacity. R. 233, (O); O. 18, r. 3, (E), am. 131 Claim by insolvency, assignee in [R. 233, (O)]. 132 against husband and wife. [R. 234, (O)]. 4. Claims by or against husband and wife may be joined Claims by or with claims by or against either of them separately. O. 18, r. 4, (E). 133 Claims by or against 5. Claims by or against an executor or administrator as such may be joined with claims by or against him personally, executor. provided the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator. r. 5, (E). O. 18, 134 several claims. 6. Claims by plaintiffs jointly may be joined with claims Joint and by them or any of them separately against the same defend- [R. 236, (O)]. ant. O. 18, r. 6, (E). |