When the non-joinder is not pleaded, the error cannot be amended. It is in general of no importance; but if of consequence at all, is fatal. Thus, where an action was brought against a husband alone for a debt incurred by his wife before marriage, the husband was held not liable, and it was further held that the Court had no power to add the wife as defendant (h), and it appears clear that neither the Court nor a judge have any power to remedy the non-joinder of a defendant. Mis-joinder. If X. and Y. are sued where X. alone is Misjoinder. liable, the error is fatal unless amended. If it appears on the pleadings, it gives rise to a demurrer, &c.; if it appears at the trial, to an adverse verdict, &c. Amendment.-The misjoinder of a defendant can be amended by the Court or judge before or at the trial (i); but will not be amended where the party wrongfully joined is made a co-defendant on purpose to try his liability. RULE 117.-In an action for tort; Amend ment. RULE 117. 1. a non-joinder of plaintiffs gives rise to a plea Nonin abatement; joinder and misjoinder of 2. a mis-joinder of plaintiffs leads only to in- plaintiffs creased costs. Non-joinder.-In an action by A. for tort, which ought to be brought by A. and B., the defendant can plead in abatement the non-joinder of B., or can give notice that he objects to such non-joinder. If he does not do so, the error is immaterial (k); for if the defendant does not object to the non-joinder, he will be liable for such visions to secure that the defendant added be placed in as good a position as if the action had originally been commenced against him, and that the party whose negligence or error causes the amendment shall in any case pay the cost of it. (h) Garrard v. Giubelei, 11 C. B., N. S., 616, 832; 31 L. J. 131, 270, C. P. in actions for tort. Non joinder. (i) C. L. P. Act, 1852, s. 37. (k) Bullen, Pleadings, 3rd ed., 708. Amendment. Misjoinder. RULE 118. Nonjoinder and misjoinder of defendants in actions for tort. Amendment. Misjoinder. Amendment. Exception. Injuries to real pro perty. portion of the damages as was incurred by the plaintiff alone, though not for more (1). Amendment.-The rule is the same as in an action on contract (m). Misjoinder. The rule is the same as in an action on contract (n). RULE 118. In an action for tort; 1. a non-joinder of defendants is no error; 2. a mis-joinder of defendants leads only to increased costs. Non-joinder. Each of several joint wrongdoers being separately liable for the whole damage caused by the joint wrong, it is no defence to X., when sued for a wrong, that Y., who is jointly liable, has not been sued with him (0). Amendment. The non-joinder of defendants cannot be amended, for it is not an error. Mis-joinder. If X. and Y. are sued where X. alone ought to be sued, Y. is entitled to a verdict and his costs; but his being wrongly joined does not affect the liability of X., the real wrongdoer (p). Amendment. The plaintiff may always remedy the error before the trial, by entering a nol. pros. as to the persons wrongly joined, i. e., by dropping the action against them. The error can also be amended by the Court or a judge before or at the trial, in like manner as the same error can be amended in an action on contract (q). Exception.-Actions for torts concerning real property. "There is, it seems, a distinction between personal actions of tort and such actions when they concern real (1) Sedgworth v. Overend, 7 T. R. 279; Bloxam v. Hubbard, 5 East, 407. (m) See p. 503, ante. (n) See p. 505, ante. (0) See p. 430, ante. (p) Govett v. Radnidge, 3 East, 62; Bretherton v. Wood, 3 B. & B. 54 ; Pozzi v. Shipton, 8 A. & E. 963. (2) See p. 507, ante. property. Therefore, if one tenant in common only be sued in trespass, trover, or case, for anything respecting the land held in common, he may plead the tenancy in abatement" (1). founded on con Torts founded on contract.—The answer to the question Torts whether an action brought in the form of an action ex delicto, as regards the rules for joinder of parties, is to be tract. considered an action on contract or an action for tort, depends not upon the form but upon the real character and substance of the particular action. Thus "where the action is substantially and necessarily founded on contract, the form of it in tort will not prevent the plaintiff being nonsuited for the non-joinder of other persons interested" (s). But it must be borne in mind that, as already pointed out, differences of opinion exist as to the true character of certain actions (t). (r) Cabell v. Vaughan, 1 Wms. Saund. 291 g. (s) Cabell v. Vaughan, 1 Wms. Saund. 291 n; and 291 ƒ, note; Ansell v. Waterhouse, 6 M. & S. 385. (t) See further, pp. 370, 380, ante; Bretherton v. Wood, 3 B. & B. 54; Pozzi v. Shipton, 8 A. & E. 693; Govett v. Radnidge, 3 East, 62; Ansell v. Waterhouse, 6 M. & S. 385; Powell v. Layton, 3 B. & P. 365. SCHEME AS TO JOINDER OF PARTIES. A. Actions on Contract. a. Plaintiffs. 1. Non-joinder.-Fatal unless amended. 2. Mis-joinder.-Leads only to increased costs. b. Defendants. 1. Non-joinder. -Gives rise to a plea in abatement. B. Actions for Tort. a. Plaintiffs. 1. Non-joinder.-Gives rise to a plea in abatement. b. Defendants. 1. Non-joinder.-Has no effect. 2. Mis-joinder.-Leads only to increased costs. INDEX. ABATEMENT. See BANKRUPTCY. ABATEMENT, PLEA IN. See CONTRACT, NON-JOINDER. when not returning from transportation amounts to, 172. what constitutes cause of action, 6. on contract, or ex contractu, 8. for tort, or ex delicto, 9. distinction between actions on contract, and for tort, 9-22. some actions may be brought either on a contract or for tort, 16, against attorneys or surgeons for want of skill, 16. against bailces, 16. for torts founded on contract, are in reality for breach of contract, 20. advantages and disadvantages of on suing on contract or for tort, are divided into "forms," 22. "forms" of action, 22-25. are divided into local and transitory actions, 25. difference between, 25, 26. may under certain circumstances be brought by aliens for wrongs in interpreting contracts the courts follow the lex loci; but in their |