SUPREME COURT.

Globe, Volume XXI, Issue 1743, 20 September 1879, Page 3

SUPREME COURT.

SITTINGS IN OHAMBEES. Friday, September 19. [Before his Honor Mr Justice Johnston.} His Honor sat in Chambers at 11 a.m. DEED OF W. J. CBOTHERS. On the application of Mr Joynt, the deed of arrangement herein was declared duly executed. EE THOMAS C. X. SYMOND3. The debtor in person applied for his discharge. His Honor made the order. ■WILL OP GEOEOE BICHAEDS, DECEASED. Mr Thomas applied herein for probate to issue to the widow of deceased as sole executrix. His Honor made the order as prayed. IN BANCO. CONNOR V MACKAY AND OTHERS. His Honor read the judgments of Mr Justice Williams and himself on the demurrer herein as follows : His Honor read the judgment of Mr Justice Williams as follows : —“ It is, I think, clear that the rights given to Connor and Mackay by the deed set out by the declaration were given to the firm of Connor and Mackay, and were, therefore, joint rights. Amongst the rights which they so acquired was the right to an account, and now one of them only comes before the Court as plaintiff, bringing, however, the other, with the other persons against whom an account is sought, before the Court as defendant. Is it competent for him to do this under our practice ? The practice in the Court of Chancery in England before the Judicature Act is well illustrated by the case of Wilkins v Pry (1 Mer., 2Ft). There the assignees of a bankrupt elected to take certain leaseholds, and had agreed to sell them. One of the assignees then brought a suit against the purchasers to compel them to execute a proper indemnity to the assignees in respect of the rent and covenants of the leases. In this suit he made his coassignees defendants. In their answer they stated that they declined to concur in the suit as they thought it unnecessary. The Master of the Bolls held (p. 262) that it there were a right to the indemnity he did not see how the dissent of some of the assignees would prevent the others from asserting their right. * All persons,’ he says, ‘ who have a joint interest must join in an action at law ; but in equity it is sufficient that all parties interested in the subject of the suit should be

before the Court in the shape of either plaintiff or defendants.’ The same question was discussed in the very recent case of Luke v the South Kensington Hotel Company, L.B. 11., Oh. Div. 121. The suit in that case had been commenced before the Judicature Act came into operation, and it was held that one_ of several mortgagees could maintain an action to foreclose the mortgage, making the others co-defendants it they were unwilling to be joined as co-plaintiffs, or had done some act precluding them from being plaintiffs. It was said in that case, however, by the Master of the Rolls, that you have no right, capriciously, to make persons defendants when they ought to bo plaintiffs. But there must be some substantial ground for it. Our rules have no express provision on the subject, but their general intention clearly is to assimilate, as far as possible, the procedure in all classes of action, taking as a model the procedure in an action for money. I certainly think that the rules contemplate that in actions for specific relief, os in actions for money, all persons who claim in the same right should, in ordinary cases, appear as plaintiffs. If, however, there is a difficulty in joining them all as plaintiffs, then, in order to do justice, it must of necessity be sufficient to join them as defendants. I think also if they are not joined as plaintiffs that the reason why they are not so joined should appear on the declaration, and that it no sufficient reason appears the declaration would be demurrable. Is there any reason appearing upon the present declaration for making Mackay a defendant, either instance that he is in collusion with the other defendants, or that there would be any embarrassment in making him a coplaintiff, or that he is unwilling to join as a plaintiff ? Nothing of the kind appears ; while on the other hand, since Connor and Mackay were partners, Connor had a right to use Mackay’s name as a co-plaintiff, even against his will, and all that Connor could have boon called upon to do would have been to indemnify Mackay against costs - (Whitehead v. Hughes, 2 Or. and M. 318) —nor could Mackay have discontinued the action without leave of the Court. (R. G. 406.) It was agreed that Mackay, being an accounting party, could not have been made a cc •plaintiff. The answer to this is that ho ought not in this action to be made an accounting party, and that to seek to make him so renders the declaration clearly multifarious. The plaintiff has no right to combine a prayer for the relief sought by the firm of Connor and Mackay against Martindale and Hawkins, in respect or the partnership created by the deed set out in the declaration with a prayer which involves an investigation of the accounts of Connor and Mackay inter se. The case of Russell v Davie (Maoassey, 516) decides indeed that in New Zealand a declaration is not demurrable for multifariousness, but I think the demurrer should be allowed on the ground that Mackay has not been joined as a plaintiff, and that no reason appears why he should not have been so joined. Demurrer allowed with costs.” His Honor Mr Justice Johnston said:— “ This is a demurrer to the declaration by two of the defendants, Hawkins and Martindale. The position of the parties to this action seems to be as follows :—The plaintiff was in partnership with the defendant Mackay as contractors, the former having one share in a partnership with Hawkins and Martindale respecting the execution of the Lyttelton Harbor works. By the terms of the deed of partnership regarding the harbor contract the firm of Connor and Mackay were to advance and did advance £7500 for the purpose of carrying out the works, and the defendant Hawkins was to find and did find the same amount. The other partner Martindale contributing no money, but superintending the works and getting an annual salary in respect thereof. It was agreed that Connor and Mackay should represent and have the rights and privileges of one partner only, and that they should get a third of the profits up to £20,000, and a fourth of the profits above that amount. The plaintiff avers that there have been large profits, and that Mackay has received from other defendants a sum of £3OOO and no more on ‘account of those profits, and that the plaintiff has applied to the defendants for accounts which they have refused to give. The ultimate object of the plaintiff in this action evidently is to obtain payment of the amount which may be due in respect of bis interest as a partner in the firm of Connor and Mackay in the contract, for which purpose he desires to have accounts from the defendants with respect to the profits of the harbor contracts. There can be no doubt that Connor would be entitled to an account from Mackay as regards the partnership between himself and Mackay, and that Connor and Mackay together would be entitled to an account from the other defendants in respect of the harbor works partnerships. But the defendants Hawkins and Martindale, in demurring to the declaration, say in effect, ‘‘Although we may be responsible to the firm of Connor and Mackay as a firm, having the interest of one partner in the contract, we are not responsible to one partner of that firm, and it is no part of our duty under the contract to see that the affairs of Connor and Mackay are wound up, or to pay, or see to the payment of any portion of the profits (if such there are) to Connor, the plaintiff, in respect of his interest with the firm of Connor and Mackay.” I am of opinion that the form of the suit is misconceived, and that the declaration is objectionable, not only on the technical ground of multifariousness as including different causes of action, and therefore being one which might have been set aside or amended on application in chambers, but also on the ground that the plaintiff alone has no right to ask relief against the defendants, Hawkins and Martindale, in an action against them jointly with Mackay, in which relief is sought against Mackay, in which they had nothing to do. Had there been any statement in the declaration shewing or tending to shew combination and collusion amongst the defendants for the purpose of defrauding the plaintiff of the share to which he might be entitled of the sum which the firm of Connor and Mackay may be entitled to receive from the other defendants, on the taking of the accounts in respect of the partnership in which all the parties are interested, the case might have been different, for collusion often affords an answer to objections made on the ground of multifariousness. [See Calvert on Parties, p. 100 ; Mutford’s Chan. Pleadings, 209. J But it is not so much on the ground of multifariousness that I think the declaration is bad as on the ground that the plaintiff has no individual right to sue Hawkins and Martindale. Although it may bo true that in equity one of several persons interested may sue alone, which he could not do in a Court of Common Law, it does not follow that one party may at his choice make his partner or joint contractor a co-defendant with persons against whom the plaintiff and such partner or joint contractor has a joint claim against these other defendants, no collusion being averred nor any reason stated why the plaintiff’s partner is not a plaintiff. The question of multifariousness often depends upon the consideration whether it is convenient that the subject matter of the suit should be investigated and determined together or separately. In the case of Campbell v Mackay, 1 M. & 0., 619, the bill was for the execution of the trusts respecting four different funds for the benefit of the same plaintiffs, and a demurrer for multifariousness by three of the defendants who had nothing to do with three out of the four funds was overruled. But here the plaintiff seeks to make the remaining defendants responsible for the payment to him of moneys which may be due from the firm of Connor and Mackay, with the members of which individually they have no privity or right of interference. It is quite consistent with the declaration that even if the defendants Hawkins and Martindale have recovered profits, to part of which the firm of Connor and Mackay may be entitled, the plaintiff may yet have nothing at all to receive in respect of his partnership with Mackay. I was inclined to think at first that as all the parties who are interested in the partnership deed of 1876 were before the Court it might deal with the whole matter by a distribution decree, but on the whole, I think the form of the declaration and the prayer of relief are misconceived, and that the demurring defendants ought not to be called upon to answer at the suit of Connor alone. For this reason, I think the demurrer must be allowed. Demurrer allowed with costs. Mr Thomas applied, on behalf of Mr Stout, for leave to amend. His Honor pointed out that the whole aspect of the case would be changed, and he eould not see how any amendment could bo made. The plaintiff could bring an action in the right way, as the judgment in the demurrer would not bar it. Application refused. LAND TBANBFBB ACT AND BE JANE WILSON. This case was adjourned by consent until next "banco sitting, on Friday next. The Court then rose.