C.A. 1902. V. ASSETS less than the whole of the 'owners could convey. The memorandum of transfer and the order of freehold tenure must therefore be either good or bad as a whole. Even if the Na- MERE ROIHI tives were tenants in common they must either all bring one joint action or each a separate action: Tomoana v. Ormond(1); COMPANY. McDonald v. King(2). As a matter of discretion, under Rule 90 all persons interested should be joined. The discretion should be exercised according to the old practice: Wilson, Sons, & Co. v. Balcarres Brook Steamship Company(3); Kendall v. Hamilton (4). If they refuse to join as plaintiffs they may be made defendants, and the Court will insist on this where one action after another is being brought: Luke v. South Kensington Hotel Company(5); Cullen v. Knowles(6). The old Chancery practice was that all persons interested in the subjectmatter of the suit should be joined, and that the Court should endeavour always to do complete justice in the proceedings before it, and not leave over matters to future litigation: Blain v. Agar(7); Evans v. Stokes (8); Richardson v. Hastings(9); Rayley v. Best(10); Hare v. London and Northwestern Railway Company(11); Leigh v. Thomas(12); Baldwin v. Lawrence(13); Douglas v. Horsfall(14); Poore v. Clark(15), a right-of-common case. The practice is the same since the Judicature Act: Daniell's Chancery Practice (16); Ackroyd v. Briggs(17). There is an exception: Daniell's Chancery Practice(18); but this case is not within the exception, the rights of all being the result of the same state of facts. [WILLIAMS, J.-Why could you not have gone under Rule 95, and have given a third-party notice at any time?] Quare whether that rule applies. An application under Rule 92 can be made at any time. Sheehan v. Great Eastern Railway Company(19) stands by itself, and is not law. Bergmann v. McMillan (20) is later, and the other way. And see Edmunds on Patents(21). [Counsel also referred to Fairclough v. Marshall(22), Van Gelder, Apsimon, & Co. v. Sowerby Bridge C.A. 1902. United District Flour Society(1), Ruston v. Tobin(2), Walcott v. Lyons(3), Edward v. Lowther(4), Byrne v. Brown(5), MERE ROIHI Montgomery v. Foy, Morgan, & Co.(6), Norris v. Beazley(7), Dix v. Great Western Railway Company (8), and Charnock v. COMPANY. Court(9).] V. ASSETS W. L. Rees and Skerrett, for the plaintiffs, contra: There are four answers to the claim that the suit is improperly constituted and should be dismissed, and to any claim to have the other Natives joined, under Rule 90, as of right: (a) No persons other than the plaintiffs are directly interested in the relief sought; (b) no relief is sought or can be sought against the persons sought to be joined; (c) the relief sought does not disturb or prejudice the rights of the persons sought to be joined; (d) the title attacked by the relief claimed is not the title of the persons sought to be joined. The action directly attacks only the claim to the interests of the plaintiffs. It is not an action to set aside any contract or conveyance. It is the order of freehold tenure which is attacked. The memorial of ownership is attacked only collaterally, in order to get at the order of freehold tenure. The interests and rights of the various Natives may differ. Some were infants, others not; some signed the memorandum of transfer, others not; some received purchase-money, others not. The defences of acquiescence and the Statute of Limitations must be different as to each. The plaintiffs claim alternatively that the defendant may be declared a trustee for them. Either way it is the freehold title of the defendant only which is attacked. The interest of the Natives is not joint, and the relief claimed is only in respect of the separate and independent interests of the plaintiffs. The action cannot conclusively determine the rights and interests of the others. The analogy here is to an equitable action of ejectment by a tenant in common. Tenants in common may sever in action, joint tenants not : Coke upon Littleton(10); Dicey's Parties to an Action(11); Cole on Ejectment (12). And see Roberts v. Holland(13) and Lauri C.A. 1902. บ. ASSETS v. Renad(1). It is said that the action should be either by one or by all. But these are really several actions by each of the plaintiffs, which they are entitled to join under the exist- MERE ROIHI ing rules: Smurthwaite v. Hannay(2). If there has been misjoinder the plaintiffs should have been put to their election which should proceed. It is too late for that now. In Wi te Ruke v. New Zealand Native Land Settlement Company(3) it was sought to set aside what was a joint contract for a joint. consideration. [WILLIAMS, J.-Is there not a joint contract here, a conveyance to the defendant's predecessor in title for a lump sum?] 66 There was no contract at all. It could have no effect. The order of freehold tenure alone could have effect. In all the cases cited the expression "parties interested in the subject-matter of the suit" means parties interested in the relief claimed. Cockburn v. Thompson (4) shows that. The Court will not require parties to be added unless they will be affected: Story's Equity Pleadings(5). The effect of Rule 89 is that there can be no plea in abatement for nonjoinder any more than for misjoinder. The latter part of the rule shows that misjoinder is used as a generic term to include non-joinder. In all the cases in which a person who ought to have been a plaintiff has been made a defendant, it has been done at the instance of the plaintiff, and was necessary to constitute the suit so as to enable the Court to give the relief claimed: Silber Light Company v. Silber(6); Luke v. South Kensington Hotel Company (7); Meldrum v. Scorer (8); Van Gelder, Apsimon, & Co. v. Sowerby Bridge United District Flour Society(9); Cullen v. Knowles (10). The other Natives will not require to be joined, even for the purposes of an account. The ascertainment of the shares will be matter for a reference to the Native Land Court: "The Native Rights Act, 1865," section 5. [Counsel also cited Sheehan v. Great Eastern Railway Company(11), Hunter v. Young(12), Dicey's Parties to an Action (13), Amos v. Chadwick(14), and Bennett v. Lord Bury(15); and referred to a (1) [1892] 3 Ch. 402. (2) [1894] A. C. 494, 504. (4) 16 Ves. 321, 325, 329. (6) 12 Ch.D. 717. (7) 11 Ch.D. 121. (8) 56 L.T. 471. (9) 44 Ch.D. 374. (10) [1898] 2 Q.B. 380. (11) 16 Ch. D. 59. (12) 4 Ex.D. 256. (13) p. 11. (14) 4 Ch.D. 869; on app. 9 Ch.D. 459. (15) 5 C.P.D. 339. COMPANY. C.A. 1902. number of the cases cited for the defendant, submitting that they were distinguishable.] Treating the application as one MERE ROIH to the discretion of the Court, it was too late. Further, in V. 1 exercising its discretion under Rule 90 the Court will look COMPANY. simply to the interests of the parties sought to be joined: ASSETS Wilson, Sons, & Co. v. Balcarres Brook Steamship Company(1); Roberts v. Holland(2). There is no case in which a plaintiff has been ordered to join parties simply in order that they may be bound as against the defendant. H. D. Bell, in reply: The ground of Smurthwaite v. Hannay(3) was that the causes of action arose out of similar but distinct transactions. If it had been all one transaction the House of Lords would have upheld the Court of Appeal. The title of the persons sought to be joined under the memorial of ownership is attacked both by the statement of claim and by the evidence, the question of the sufficiency of the plan being raised. In any case, a transaction to which they were all parties is sought to be set aside. Further, apart altogether from the question whether they are interested, they will be joined in order that there may be an end of litigation. As to Rule 95, the words or from any other cause," &c., which have been struck out of the English rule, are no doubt retained in ours. But an application under that rule in this case would have been new. 66 WILLIAMS, J.:— Cur. adv. vult. Each of the plaintiffs had an individual and separate interest under a statutory Native title in the land which was subsequently included in the order in freehold tenure. That interest was similar in one respect to a tenancy in common of an undivided share under the English law, in that on the death of the individual it would not pass to the survivors, but to his representatives, according to Native custom. What the extent of such interest may be is immaterial so far as attacking the order is concerned. Although the interest may be undefined, yet if it appears that a plaintiff is entitled to some interest he has a right to complain that the order was wrongfully made. If the allegations in the statement of claim be true, each individual has been wrongfully deprived of his interest in the It C.A. 1902. v. ASSETS COMPANY. land, and has a right to sue for and recover it independently of the others. Each has no claim and seeks no relief against the other individuals who hold with him who are not plaintiffs. MERE ROIBI His success would not in the least prejudice the interests of these others. The quantum of his interest would be ascertained not by this Court but by the Native Land Court. may be, if he succeeded in upsetting the order in freehold tenure and established a right to an account, that the other persons interested would be brought in so as to be present at the taking of the account and to be bound by it. The case of Dent v. Turpin(1) suggests, indeed, that this might not be necessary, but if it were it would be time enough to bring the other parties before the Court when the account is ordered. In such circumstances the cases of Fairclough v. Marshall(2), Sheehan v. Great Eastern Railway Company(3), and Van Gelder, Apsimon, & Co. v. Sowerby Bridge United District Flour Society(4) show that the action can preceed without the joinder of the other persons interested, and that it is not a ground for dismissing the action, nor even necessarily for ordering the joinder of the other persons, that if the defendant were successful such persons might subsequently attack him in respect of the same matter. There is no substantial difference, in my opinion, between our rules and the provisions of the English Judicature Act, and the cases decided under that Act show that an action ought not to be dismissed for want of parties if no absent person is prejudiced, even if the joinder of other persons is necessary to enable the plaintiff to succeed. In the latter case the Court would order the necessary persons to be added as parties. That, however, is not necessary in the present case, or, at any rate, it is not necessary at the present stage. The defendant, however, suggests that there are numerous Natives included in the original Native titles, and that if he is successful in the present case each one of such Natives might subsequently bring an action against him founded on the same or slightly different allegations. He alleges that he has been sued in the past by other Natives interested in the block and has been successful,. that the present action is a fresh attack by other plaintiffs, and that therefore, even if he now succeeds, he has good reason to fear other actions unless all persons interested in the block are made parties to the present action. This application, however, |