AITKEN, SPENCE & CO. v. (1) THE CEYLON WHARFAGE CO., LTD.; (2) THE BIBBY STEAMSHIP CO., LTD

AITKEN, SPENCE & CO. v. (1) THE CEYLON WHARFAGE

CO., LTD.; (2) THE BIBBY STEAMSHIP CO., LTD.

D. C, Colombo, 13,768.

Plaint for recovery of value of lost goods - Doubt of plaintiff as to which of the defendants is liable for such loss - Civil Procedure Code, ss. 14, 15 - Joinder of different defendants - Same cause of action against all.

Where, in an action for the recovery of the value of lost goods, the plaintiff, being doubtful as to which of the defendants was liable for such loss, prayed the Court to determine the question of their liability and then to give judgment against them or either of them, and where the plaintiff alleged that the second defendant company received from the plaintiff in Liverpool 790 bundles of hoop iron for delivery to them at Colombo for freight duly paid, and that the first defendant company, being wharfingers and warehousemen in Colombo, received all or a portion of the said bundles from the second defendant company for delivery to the plaintiff upon payment of the landing charges, but failed to deliver to the plaintiff 107 bundles out of the 790,-

Held, that the cause of action alleged against both the defendant companies was the same, viz., failure through neglect, mistake or Wilful default to deliver 107 bundles of hoop iron, and that therefore the plaint should not have been rejected.

AFTER setting out that the defendants are joint stock companies incorporated in England, and that the first defendant company are carrying on business as wharfingers and warehousemen in Colombo, nod the second defendant company carry on business in Colombo and elsewhere, the plaint alleged that on or , about the 25th October, 1899, the plaintiffs agreed with the second defendant company that, in consideration of the plaintiffs causing to be shipped on board the ss. Lancashire, in the port of Liverpool

790 bundles of hoop iron marked " A. S. & Co." belonging to the plaintiffs, the second defendant company, by a bill of lading dated 25th October, 1899, promised the plaintiffs to deliver the same to them at Colombo for freight duly paid; that the second defendant company delivered 790 bundles of hoop iron to the first defendant company, as agents of the plaintiffs, to be landed at Colombo and delivered to the plaintiffs upon payment of the usual landing charges there for, which the plaintiffs have been always ready and willing to pay; that all conditions were fulfilled necessary to entitle the plaintiffs to have the said goods delivered to them, yet 107 bundles were never delivered to them by either of the defendant companies, and they were wholly lost to the plaintiffs to their loss and damage of Its. 428; that the first defendant company alleged that the second defendant company only delivered to them 683 bundles marked " A. S. & Co.," and 107 bundles not marked, which latter the plaintiffs refused to accept as goods not shipped by them; and the plaintiffs being doubtful as to whether both or only one, and in the latter event which, of the defendant companies is liable for the loss of the said goods, prayed that the Court do determine the same and thereafter give judgment against thorn or either of them for the said sum of Rs. 428, &c.

The plaint was accepted and summons were served on the defendant companies, whereupon counsel for the second defendant company moved that the plaintiffs be directed to amend their plaint by striking out the name of one or other of the defendants on the ground of misjoinder of parties. The District Judge held as follows: -

" Under section 14 of the Civil Procedure Code all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, in respect of the same cause of notion, and judgment may be given against such one or more of the defendants as may be found to be liable accord

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