To ensure that all the persons interested in the defence shall have an opportunity of resisting the plaintiffs' claim, the law has given to two classes of persons a right to be defendants.

DEFEND

writ.

ANTS.

Persons named in the Writ.-All the persons in actual Persons occupation of the land claimed, must, as already pointed named in out, be named in the writ and made defendants. The persons so named, even if it happened that some of them ought not to have been named, have a right to defend (1); and each of the persons so named must be served with the writ.

Persons not named in the Writ.-Every tenant to Persons not whom a writ in ejectment is delivered, or to whose named. knowledge it comes, is bound under a heavy penalty forthwith to give notice thereof to his landlord, or his bailiff or receiver (m). Security is thus provided, that the landlord shall know of any action of ejectment being brought, to obtain possession of property in which he has an interest. But this is not itself a sufficient protection; for though a defence by the tenant would be a good defence by the landlord, a landlord cannot compel his tenants, on whom the writ is served, to appear and defend the action, or to allow him to do so in their names (n). It is, therefore, enacted that-" Any other person not named in such writ, shall by leave of the court or a judge, be allowed to appear and defend, on filing an affidavit showing that he is in possession of the land, either by himself or his tenant" (o). Under this provision, any person has a right to defend (p) who can satisfy a judge that either he is himself in possession, or that his tenants are in possession. If the persons named in the writ wish to defend, the person not named is made co-defendant with them. If, on the other hand,

(2) C. L. P. Act, 1852, s. 171; Cole, Ejectment, 123.

(m) Ibid., s. 209.

(n) Doe d. Turner v. Gee, 9 Dowl. 612; Right v. Wrong, Barnes, 173; Cole, Ejectment, 123.

(0) C. L. P. Act, 1852, s. 172.

(p) See Butler v. Meredith, 11 Ex. 85; 24 L. J. 239, Ex.

K K

DEFEND

ANTS.

the persons named are not willing to defend, the person applying for leave to defend is made defendant in their place (q).

(a) Under an earlier enactment (11 Geo. II., c. 19, s. 13,) to the same effect, it has been held that any one has a right to sue who claims a title consistent with the position of the occupier. Thus a mortgagee out of possession (Doe d. Tilyard v. Cooper, 8 T. R. 645; Doe d. Pearson v. Roe, 6 Bing. 613); an heir who has never been in possession (Doc d. Hiblethwaite v. Roe, 3 T. R. 783 n.); a devisee in trust in the same position (Lovelock v. Dancaster, 4 T. R. 122); the sublessee of boxes in a theatre (Croft v. Lumley, 4 E. & B. 608), have been allowed to come in and defend. But a cestui que trust who has never been in possession (Lovelock v. Dancaster, 4 T. R. 783), and a mere remainder-man (Whitworth v. Humphries, 5 H. & N. 185), have been refused leave to defend. See further, Day, C. L. P. Acts, 3rd ed. 143, 144.

Trespass for mesne profits.-As in an action for ejectment no damages are recoverable except as between landlord and tenant under C. L. P. Act, 1852, s. 214, the law has provided a remedy, by way of supplement to the action of ejectment, in an action of trespass for mesne profits. In this action compensation may be recovered for the use and occupation of the property recovered in the ejectment during the period for which it was actually or constructively occupied by the defendant (Doe v. Harlow, 12 A. & E. 40; Doe v. Chailis, 17 Q. B. 166), and also such compensation as the jury may give the plaintiff for his trouble under the circumtances proved before them, or for any damage done to the property by the defendant, and for the costs of the previous action of ejectment (Cole, Ejectment, 635). The plaintiff or plaintiffs in the action should be the claimant or claimants in the original action of ejectment.

The defendant or defendants should be the person, or all or any of the persons against whom the judgment was obtained in ejectment.

Any person may also be sued in such an action under whom the tenants in possession held during the action, and to whom notice of ejectment was duly given under the C. L. P. Act, 1852, s. 209; or who, as landlord or otherwise, procured the tenants in possession to defend the ejectment, or to withhold the possession of the property from the claimant on demand made by him.

The action is maintainable against any person who, as under tenant or otherwise, has occupied the property after judgment obtained in ejectment. The action lies against personal representatives for mesne profits received by the deceased within six calendar months before his death (3 & 3 Will. 4, c. 42, s. 2). See generally as to this action, Cole, Ejectment, 637–638.

CHAPTER XXXIV.

NON-JOINDER AND MIS-JOINDER OF PARTIES,
AND AMENDMENT.

RULE 114.-An action brought by a wrong plain- RULE 114. tiff, or against a wrong defendant, must fail (a).

X.

If A. sues X. when B. ought to have sued X., or if is sued by A. when Y. ought to have been sued, the error is fatal (b). For if a wrong plaintiff sues, or a wrong defendant is sued, either A., the plaintiff, is not the person whose rights have been invaded, or X., the defendant, is not the person who has invaded A.'s rights. It is, therefore, impossible for A. to establish against X. that interference with his rights which is the basis of an action (c).

(a) The errors which can be committed in respect of the parties to an action are of three kinds :

1. The action may be brought in the name of the wrong plaintiff, or against the wrong defendant, e. g., if A. sues X. when B. ought to have sued X., or if A. sues Y. when he ought to have sued X.; or, what is exactly the same thing, if A. and B. sue X. when C. and D. ought to have sued, or if A. sues X. and Y. when he ought to have sued W. and Z. 2. The error may consist in a non-joinder of plaintiffs or of defendants, i.e., an action may be brought by A. when it ought to have been brought by A. and B., or against X., when it ought to have been brought against X. and Y.

3. The error may consist of a mis-joinder of plaintiffs or defendants, i. e., an action may be brought by A. and B. when it ought to have been brought by A., or against X. and Y., when it ought to have been brought against X.

(b) The two points to be considered in respect of every kind of error are, first, what is the effect of the error if unamended? secondly, can it be amended?

(c) See p. 6, ante.

Action by or against wrong

party must

fail.

Amend. ment.

Apparent exceptions.

This rule applies both to actions ex contractu and to actions ex delicto.

or error.

If the error appears on the pleadings, it may be taken advantage of by demurrer, motion in arrest of judgment, A. declares against X. on a contract, which on the face of the declaration appears to be in point of law made, not with A., but with B. X. can, thereupon, demur, &c. If, on the other hand, the error appears at the trial, it gives rise to an adverse verdict or a non-suit. A. sues X. for the price of goods alleged to be sold by A. to X. It appears at the trial that they were sold, not by A., but by B. to X. There will, thereupon, either be a verdict for X., or else A. will be nonsuited. In either case the action will fail.

Amendment. This error cannot be amended, for there is no power possessed either by the court or a judge to substitute a right for a wrong plaintiff or defendant (d). Apparent Exceptions.-There are some apparent exceptions to the general principle, here laid down. In an action, for instance, of ejectment by the cestui que trust, the name of the trustee has been added (e). The error in this case appeared at the trial, and the amendment consisted rather in the addition of a party than in the substitution of the right for the wrong plaintiff, and the action further was one of ejectment, in which it seems always to have been held that the Court had specially wide powers of amendment. A landlord, again, may in an action of ejectment be allowed to defend, together with, or in place of the tenant in possession. But such landlord, though not mentioned by name in the writ, is in fact one of the parties to the action, being sued under the general description of one of the persons entitled to defend the possession.

Where, further, a foreign company sued in a corporate name, and the defendants pleaded that it was not a corporation, the Court amended the writ and declara

(d) Clay v. Oxford, L. R. 2 Ex. 55; 36 L. J. 15, Ex.
(e) Blake v. Done, 7 H. & N. 465; 31 L. J. 100, Ex.

tion, by inserting the name of a director as nominal plaintiff, he being by the law of the foreign country entitled to sue (ƒ). This case, as well as that of Blake v. Done (g), before referred to, has been explained on the ground that "persons not formally entitled to be parties brought an action to try certain matters perfectly well known to both sides" (h); and they may, perhaps, be considered instances rather of formal amendment than of the substitution of a right for a wrong plaintiff. The contrast between an amendment of this kind, and an amendment allowing representatives to be substituted as plaintiffs for a person dead at the time when the action was commenced, has been drawn out in the case in which the latter kind of amendment was applied for in the following judgment of Bramwell, B. "Here the plaintiff is altogether wrong, or rather, there is no plaintiff; the man in whose name the action was brought was dead. It cannot be said that this was an amendment 'necessary for the purpose of determining in the existing suit the real question in controversy between the parties,' nor is this an application made between the parties to the suit: for there is no plaintiff, and, therefore, no existing suit, and no question in controversy between the parties. If we could see some person suing who had a beneficial interest in the claim made, though not legally entitled to sue, the case would be within the principle of the authorities cited. But the power of amendment is limited to cases where there was originally a party suing, possessed, though with a variety in legal description, of the same interest with the party to be substituted" (i).

(f) Banca Nazionale v. Hamburger, 2 H. & C. 330.

(g) 7 H. & N. 465; 31 L. J. 100, Ex.

(h) Clay v. Oxford, L. R. 2 Ex. 55, judgment of Eramwell, B. (i) Ibid.