PART IX. THE PARTIES TO AN ACTION, APPLICATIONS RELATING THERETO, AND PROCEEDINGS BY AND AGAINST PARTICULAR PERSONS. PAGE CHAPTER I. ADDING, STRIKING OUT, AND SUBSTITUTING PARTIES 511 II. PROCEEDINGS ON CHANGE OF PARTIES BY DEATH, &c. 514 III. PROCEEDINGS AGAINST PEERS AND MEMBERS OF PARLIAMENT . 517 IV. ACTIONS AGAINST PUBLIC AUTHORITIES 518 V. ACTIONS AGAINST INHABITANTS OF DISTRICT. . 519 XI. ACTIONS BY AND AGAINST IDIOTS, LUNATICS AND 570 XIII. XIV. XII. PROCEEDINGS BY AND AGAINST HUSBAND AND WIFE PROCEEDINGS BY AND AGAINST CLERGYMEN XV. PROCEEDINGS BY AND AGAINST PAUPERS 576 · 583 589 . 592 CHAPTER I. ADDING, STRIKING OUT, AND SUBSTITUTING PARTIES (a). 1. Application to add or substitute Plaintiff under R. S. C., Ord. XVI., r. 2 (b). [Formal parts as usual upon application to Master] for an order that E. F., of be added as a plaintiff herein [or be substituted as (a) By R. S. C., Ord. XVI., r. 12, "Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or a Judge at any time before trial by motion or summons, or at the trial of the action in a summary manner." (b) By R. S. C., Ord. XVI., r. 2, "Where an action has been commenced in the name plaintiff herein for the above-named A. B.], and that the writ of summons and all subsequent proceedings herein be amended accordingly. [The order will follow the terms of the application, such terms, as to costs or otherwise, as the Master may think fit, being added]. 2. Affidavit in support thereof. As a rule, the application should be supported by an affidavit. This should show : 1. That, in commencing the action, the present plaintiff's name was used through a bonâ fide mistake of fact or law; the nature and origin of the mistake being concisely stated. 2. That, owing to the mistake, the action has been commenced in the name of a person who is not, or may prove not to be, the right plaintiff. 3. That it is necessary for the determination of the real matter in dispute that the application should be granted. 4. That the proposed new plaintiff has consented in writing to his being added or substituted as plaintiff. Exhibit the consent (c). 3. Written Consent of a Person to be added as Plaintiff (c). [Title, &c., of action as usual.] hereby consent to be added [or substituted] as co-plaintiff [or plaintiff] herein. Dated (Signed) E. F. To Mr. X. Y., of solicitor for the above-named A. B. 4. Application to add a Party under R. S. C., Ord. XVI., r. 11 (d). [Formal parts as usual upon application to Master] for an order that E. F., of be added as a plaintiff [or defendant] herein. 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 bona 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) By R. S. C., Ord. XVI., r. 11, “. . . No person shall be added as a plaintiff suing without a next friend . . . without his own consent in writing thereto. . . ." (d) By R. S. C., Ord. XVI., r. 11, "No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court 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, [An order may be framed from the terms of the application, such further directions, as the Master may think fit to give, being inserted. When a plaintiff is added, his written consent must be produced. When a defendant is added, the provisions of Ord. XVI., r. 13, will apply, unless the order contains directions to the contrary (e).] 5. Application to strike out a Party under R. S. C., Ord. XVI., r. 11. [Formal parts as usual upon application to Master] for an order that the name of the above-named plaintiff [or defendant] E. F. be struck out of the writ of summons and all subsequent proceedings herein. [An order may be framed from the terms of the summons.] 6. Affidavit in support of above Applications. As a rule, the application should be supported by an affidavit. If the application be to add a party, the affidavit should show that the party ought to have been joined, or that his presence before the Court may be necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the action. If the party is to be added as plaintiff, the affidavit should also show that he has consented in writing to his being added. Exhibit the consent. If the application be to strike out a party, the affidavit should show that such party has been improperly joined. 7. Application to compel Plaintiff to join Co-contractor, &c., under of [Formal parts as usual upon application to Master] for an order that all proceedings in this action be stayed until E. F., be added by the plaintiff as a co-plaintiff [or co-defendant] herein, and that the plaintiff pay to the defendant his costs of and occasioned by this application. 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." (e) By r. 13," Where a defendant is added or substituted, the plaintiff shall, unless otherwise ordered by the Court or a Judge, file an amended copy of, and sue out, a writ of summons, and serve such new defendant with such writ, or notice in lieu of service thereof, in the same manner as original defendants are served." (f) The application must be supported by an affidavit of facts showing that the defendant is entitled to have the party added, and that such party is alive and within the jurisdiction. See Pilley v. Robinson, 20 Q. B. D. 155 ; Wilson v. Bilcarres, [1893] 1 Q. B. 422; Robinson v. Geisel, [1894] 2 Q. B. 685. C.F. 33 CHAPTER II. PROCEEDINGS ON CHANGE OF PARTIES BY DEATH, BANKRUPTCY, &c. (a). 1. Order that Action be continued between New Parties (b). [Title, &c., as usual.] Upon hearing the solicitors or agents for the -, and upon reading the It is ordered that the proceedings in this action be continued between and [setting out the continuing parties]. [The provisions of Ord. XVII., r. 5, as to service of the order, will apply, unless special directions to the contrary be inserted in the order (c).] (a) By R. S. C., Ord. XVII., r. 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 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." By r. 2, "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 think just, and shall make such order for the disposal of the cause or matter as may be just." By r. 3, "In case of an assignment, creation, or devolution of any 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." (b) By R. S. C., Ord. XVII., r. 4, "Where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest 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 to the action, 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." The application is made ex parte to a Master, who often directs a summons to be issued. If an executor of a deceased defendant desires to continue a counter-claim, he must obtain leave; the plaintiff's order for leave to continue the action will not suffice (Andrew v. Aitken, 21 Ch. D. 175). Where an executor obtains leave to continue an action under this Rule, he becomes personally liable for costs (Boynton v. Boynton, 4 App. Cas. 733). (c) Service of Order.]—By Ord. XVII., r. 5, "An order obtained as in the last 2. Affidavit in support of Application. [Formal parts as usual.] 1. [Show the stage which the action has reached, for instance]: This action was commenced on the claim herein was delivered on the herein has yet been delivered. of day of 19. The statement of 2. [State the change which has occurred, for instance:] On the day , 19, the above-named [plaintiff A. B.] died [or was adjudicated a bankrupt by order of —]. 3. Show the title, interest or liability of the party by or against whom it is desired that the action be continued, for instance:] The said 9 by his last will, dated duly appointed E. E. executor thereof, and on the day of, 19, the said will was duly proved in the principal probate registry of the Probate, Divorce and Admiralty Division of the High Court of Justice, by the said executor E. E. [Or The said died intestate, and on the day of 19-, letters of administration of the estate of the said were granted by the Probate, Divorce and Admiralty Division of the High Court of Justice, at the principal registry thereof, to A. A., who thereupon became, and now is, the legal personal representative of the said.] [Or On the day of 19-, T. T. was duly appointed, and now is, the trustee in bankruptcy of the property of the said -.] 4. [State by and against what parties it is proposed that the action should be continued.] 5. [If it is proposed that the action be continued by a new plaintiff, state that he has consented, in writing, to become plaintiff, and exhibit his consent.] 3. Appearance by Person not already Party to Action served with Order (d). [Title, &c., of action.] Enter an appearance for E. F. [executor of the above-named C. D., since deceased, or as the case may be], who has been served with an order preceding Rule 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." The above form No. 3 is given in the R. S. C., App. A., Pt. II., No. 6. (d) See note (c), supra. |