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Rule 115. - In an action on contract;
a fatal error;
Nonjoinder and misjoinder of plaintiffs in actions on contract. Nonjoinder.
2. a mis-joinder of plaintiffs leads only to increased costs (k).
Non-joinder.-If A. sues where A. and B. ought to sue, the error, if it appears on the pleadings, gives rise to a demurrer, &c.; if it appears at the trial, gives rise to a non-suit, or adverse verdict (1).
The reason of this is, that a contract by X. to pay A. and B. 201., gives a right to A. and B. jointly, but does
(k) Most of the errors in the choice of parties can be amended either before or at the trial under the C. L. P. Act, 1852, ss. 35—40, and C. L. P. Act, 1860, s. 19. The following points should be noted :
1. Ainendments should, except in one or two cases, be made by the Court or a judge.
2. Amendments can be made before or at the trial that cannot be made after verdict (Wickens v. Steel, 2 C. B., N. S., 488 ; Robson v. Doyle, 3 E. & B. 396). If a judge refuses to amend at the trial, the remedy is to apply to the Court for a new trial (Whitwell v. Sheer, 8 A. & E. 301). The Court will not interfere if the judge do not plainly appear to have been wrong (Sainsbury v. Matthews, 4 M. & W. 343), and perhaps cannot interfere with the exercise at the trial of the discretion vested in him (Wilkin v. Reed, 15 C. B. 192; 23 L. J. 193, C. P. ; Holden v. Bal. lantyne, 29 L. J. 149, 150, Q. B.).
3. The power to make amendments depends upon its appearing that no injustice will be done by the amendments (C. L. P. Act, 1852, ss. 34, 35, 37). Hence plaintiffs will not be added or struck out, unless the persons to be so added or struck out consent, or unless, in the case of misjoinder, the person to be struck out was originally introduced without his consent (Ibid., 34, 35). Hence, again, plaintiffs will not be struck out or added at the trial if it appear that they were originally added or omitted to gain some undue advantage (Ibid., 35).
4. C. L. P. Act, 1852, s. 222, and the analogous sections of the C. L. P. Acts, 1854 and 1860, do not (except, perhaps, in the case of ejectment, Blake v. Done, 7 H. & N. 465; 31 L. J. 100, Ex.) apply to amendments affecting the joinder of parties, Robson v. Doyle, 3 E. & B. 396 ; Wickens v. Stecl, 2 C. B., N. S., 489; Wilkin v. Reed, 15 C. B. 192; 23 L. J. 193, C. P. (1) See p. 500, ante; Bullen, Pleadings, 3rd ed.,
not give a right to each of them. A contract, in other words, to pay A. and B. is in itself a different obligation from the obligation to pay either A. or B., and, therefore, if A. alone sue, he cannot by showing a contract to pay A. and B. prove the existence of an obligation to pay A. singly. The rule is, in fact, a rigid application of the principle, that no one can sue for any thing which is not an infringement of his rights. A. and B. have a joint right to be paid a certain sum of money, and the neglect to pay it gives them together a right of action, but such neglect is not an interference with any right possessed by either of them singly (m).
Amendment.—The non-joinder of plaintiffs can be Amendamended either before or at the trial.
If the defendant pleads the non-joinder of the plaintiff in abatement, or at or before the time of pleading gives notice in writing (n) that he objects to such non-joinder, the plaintiff may amend without any order on payment of the costs occasioned by such amendment (o).
The Court or a judge may order a co-plaintiff to be joined, either before (p) or at () the trial; provided in the latter case that the defendant shall not have given notice that he objects to such non-joinder (r). Mis-joinder.- Where an action is brought by A. and B., Mis
joinder. which should be brought by A. alone, judgment may be given in favour of such one (or more) of them as are entitled to recover (s). But the defendant, though unsuccessful, is entitled to any costs occasioned by the misjoinder (t).
(mn) Compare Cabell v. Vaughan, 1 Wms. Saund. 291 k, l, m, n.
(1) C. L. P. Act, 1860, s. 19. “The joinder of too many plaintiffs shall not be fatal ; but every action may be brought in the names of all the persons in whom the legal right may be supposed to exist, and judgment may be given in favour of the plaintiffs by whom the action is brought, or of one or more of them, or, in case of any question of misjoinder being
The misjoinder is still fatal, as it would have been before the Common Law Procedure Act, 1852, if it is inconsistent with the cause of action alleged. A. and B. may, that is to say, join in suing when it may be supposed that the legal right existed in both of them, e.g., when it is conceived that they were both members of a firm at the time when a contract sued upon was made with the firm, and if it turns out that B. was not a member at that time, judgment may be given in favour of A. alone. But they cannot join in cases where the right cannot be supposed to be in both of them, but where it is supposed to be in one or other of them. If, for example, A. is a bankrupt, and B. his Trustee, and there is a doubt whether an action ought to be brought by A. or B., the difficulty cannot be got over by suing in the names of A. and B., for it cannot be that the legal right can be treated as existing both in the bankrupt and in his Trustee, and that even in those cases where either the bankrupt or the Trustee may sue (u). Where a declaration alleged that the administrator of M., and B., sued X. for money payable by him to A., as administrator, and B.; for money paid by B. and M. in his lifetime; and for money lent by the administrator, &c., and B., it was held that the declaration was bad for misjoinder, and that the defect was not cured by the Common Law Procedure Act, 1860, s. 19 (x).
Thus, again, where an action was brought by an executor, together with a person who was not executor, and there were executors who were not joined, it was held (y) to be clear that the action was “not maintainable by the plaintiffs, or either of them, as executors--for this
raised, then in favour of suck one or more of them as shall be adjudged by the Court to be entitled to recover, provided always that the defendant, though unsuccessful, shall be entitled to his costs occasioned by joining any person or persons in whose favour judgment is not given, unless otherwise ordered by the Court or a judge."
(u) See p. 198, ante.
reason: one of the existing plaintiffs is not an executor. If you leave him out, the other is an executor, yet not the only executor; and the plaintiff, by declaring in this way, may prevent the defendant from pleading in abatement, which otherwise she would be entitled to do. It could never have been the intention of the Legislature when it says that you may leave out one plaintiff, and give judgment for the other, that it should mean you may give judgment for one plaintiff, who might have been prevented from maintaining the action if he had been the sole plaintiff at first” (z).
In an action of ejectment, however, a trustee and a cestui que trust who cannot have the legal right in both of them, can, as already pointed out, be joined as plaintiffs. The judgment will be given in favour of the trustee (a).
The misjoinder of plaintiffs in actions ex contractu affects
1st. Set-off.—The defendant can prove his set-off by showing that all the parties named as plaintiffs, e.g., A., B., and C., are indebted to him, or by showing that the plaintiff or plaintiffs who can establish their right to maintain the action, e.g., A. and B., are indebted to him (b).
2ndly. Second Action.—No other action can be brought against the defendant X. by any of the persons joined as plaintiffs in a former action, e.g., by A. or B., &c., in respect of the same cause of action (c).
Amendment.—The misjoinder of a plaintiff can be Améndamended by the Court, or a judge, either before or at the trial (d).
(z) Stubs v. Stubs, 31 L. J. 513, Ex., judgment of Bramwell, B.
RULE 116. Rule 116.-In an action on contract;
1. a non-joinder of defendants gives rise to a joinder and misjoinder plea in abatement; of defendants in 2. a mis-joinder of defendants is, unless amended, actions on contract.
Non-joinder.—If an action is brought by A. against X., which ought to have been brought against X. and Y., the non-joinder of Y. can be pleaded in abatement; that is, X. can object to Y.'s not being joined. But the non-joinder of Y. is, if not pleaded in abatement, of no consequence; for if X, is sued for a breach of contract, his liability is proved by showing a contract made by X. and Y. (e). In other words, a contract by X. and Y. makes them liable to be sued separately, subject to the right of compelling the plaintiff by means of a plea in abatement to join the co-contractor as codefendant.
The difference between the effect of the non-joinder of plaintiffs and the non-joinder of defendants is clearly established, but it is not easy to account for it satisfactorily. The ground, perhaps, is that if X. and Y. undertake to pay £20 to A., each gives A. a right against him, and the contract cannot fairly be considered to be an agreement that the one of them will pay only on condition that the other pays also (f).
Amendment.—When the non-joinder is pleaded, the plaintiff is at liberty, without any order, to amend the writ and declaration, by adding the name of the person named in such plea, and may serve the amended writ upon the person so named, and proceed against the original defendant and the person named in the plea (9).
(e) Whelpdale's Case, 5 Coke, 119 a ; Richards v. Heather, 1 B. & Ald. 35 ; Rice v. Shute, 1 Smith, I.. C., 6th ed. 511 ; Cabell v. Vaughan, 1 Wins. Saund. 291 6, 291 m.
(f) As to actions for torts founded on contract, sco p. 509, post.