No. 274. person or persons to be struck out as aforesaid were originally 28 VICTORIA, introduced without his her or their consent, or that such person or persons consent in manner aforesaid to be so struck out; and such amendment shall be made upon such terms as the court or judge by whom such amendment is made shall think proper: and when any such amendment shall have been made the liability of any person or persons who shall have been added as co-plaintiff or coplaintiffs shall (subject to any terms imposed as aforesaid) be the same as if such person or persons had been originally joined in such action. nonjoinder. c. 76 s. 36. 113. In case such notice be given or any plea in abatement of Amendment on nonjoinder of a person or persons as co-plaintiff or co-plaintiffs in plea or notice of cases where such plea in abatement may be pleaded be pleaded by 15 & 16 Viet. the defendant, the plaintiff shall be at liberty without any order to amend the writ and other proceedings before plea by adding the name or names of the person or persons named in such notice or plea in abatement and to proceed in the action without any further appearance, on payment of the costs of and occasioned by such amendment only; and in such case the defendant shall be at liberty to plead R. Pr. 6. de noco; and whenever a plaintiff shall amend the writ after notice by the defendant or a plea in abatement of a nonjoinder by virtue. of this Act, he shall file a consent of the party or parties whose name or names are to be added together with an affidavit of the handwriting and give notice thereof to the defendant, unless the filing of such consent be dispensed with by order of the court or a judge. misjoinder of 114. It shall and may be lawful for the court or a judge in Amending the case of the joinder of too many defendants in any action on con- defendants. tract at any time before the trial of such cause to order that the Ib. s. 87, name or names of one or more of such defendants be struck out, if it shall appear to such court or judge that injustice will not be done by such amendment; and the amendment shall be made upon such terms as the court or judge by whom such amendment is made shall think proper; and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended as a variance at the trial in like manner as the misjoinder of plaintiffs has been herein before directed to be amended, and upon such terms as the court or judge by whom such amendment is made shall think proper. defendants. 115. In any action on contract where the nonjoinder of any Amending person or persons as a co-defendant or co-defendants has been pleaded nonjoinder of in abatement, the plaintiff shall be at liberty without any order to Ib. s. 38. amend the writ of summons and the declaration by adding the name or names of the person or persons named in such plea in abatement as joint contractors, and to serve the amended writ upon the person or persons so named in such plea in abatement, and to proceed against the original defendant or defendants and the person or persons so named in such plea in abatement, provided that the date of such amendment shall as between the person or persons so named in such plea in abatement and the plaintiff be considered for all purposes as the commencement of the action. 28 VICTORIA, No. 274. Proceedings after plea of nonjoinder. 15 & 16 Vict. c. 76 s. 39. Pleas in abatement for nonjoinder. 3 & 4 Will. IV. c. 42 s. 8. Ib. s. 9. Provision for subsequent proceedings. Ib. s. 10. Actions by husband and wife. 15 & 16 Vict. c. 76 s. 40. 116. In all cases after such plea in abatement and amendment, if it shall appear upon the trial of the action that the person or persons so named in such plea in abatement was or were jointly liable with the original defendant or defendants, the original defendant or defendants shall be entitled as against the plaintiff to the costs of such plea in abatement and amendment; but if at such trial it shall appear that the original defendant or any of the original defendants is or are liable but that one or more of the persons named in such plea in abatement is or are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment against the other defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment and shall be entitled to his costs as against the plaintiff, who shall be allowed the same together with the costs of the plea in abatement and amendment as costs in the cause against the original defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person. Provided that any such defendant who shall have so pleaded in abatement shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement. 117. No plea in abatement for the non-joinder of any person as a co-defendant shall be allowed in any action unless it be stated in the plea that such person is resident within the jurisdiction of the court and unless the place of his residence be stated with convenient certainty in an affidavit verifying such plea; and to any such plea in abatement the plaintiff may reply that such person has been discharged under any Act passed or to be passed for the relief of insolvent debtors. 118. If after any plea in abatement for the non-joinder of any person as a co-defendant the plaintiff shall without proceeding to trial commence another action against the original defendant or defendants and the person or persons named in such plea as a joint contractor or contractors, and if thereafter it shall appear either by the pleadings in such subsequent action or by the evidence at the trial that all the original defendants are liable but that any of the persons named in such plea is or are not liable, and the defendant or defendants not so liable shall accordingly obtain judgment for his or their costs against the plaintiff, the amount of the costs payable to the defendant or defendants so succeeding shall be allowed to the plaintiff as costs in the cause against such of the defendants so appearing to be liable as shall have pleaded in abatement the nonjoinder of such person or persons. Provided that any defendant having so pleaded in abatement shall be at liberty at the trial to adduce evidence of the liability of the parties named by him in such plea. 119. In any action brought by a man and his wife for an injury done to the wife in respect of which she is necessarily joined as a coplaintiff, it shall be lawful for the husband to add thereto claims in his own right; and separate actions brought in respect of such claims may be consolidated if the court or a judge shall think fit. Provided that in the case of the death of either plaintiff such suit so far only as relates to the causes of action if any which do not survive 28 VICTORIA, shall abate. No. 274. 15 & 16 Vict. 120. Causes of action of whatever kind provided they be by and Joinder of causes against the same parties and in the same rights may be joined in the of action same suit; but this shall not extend to replevin or ejectment: and c. 76 s. 41. where two or more of the causes of action so joined are local and arise in different districts, the venue may be laid in either of such districts but the court or a judge shall have power to prevent the trial of different causes of action together if such trial would be inexpedient; and in such case such court or judge may order separate records to be made up and separate trials to be had. (5.) Death Marriage or Insolvency of Parties. and continuance Ib. s. 135. 125 s. 92. 121. The death of a plaintiff or defendant shall not cause the Death of parties action to abate, but it may be continued as hereinafter mentioned; and where an action would but for the provisions of this Act abate of action. by reason of the death of either party and in which the proceedings may be revived and continued under this Act, the defendant or c. person against whom the action may be so continued may apply by summons to compel the plaintiff or person entitled to proceed with the action in the room of the plaintiff to proceed according to the provisions of this Act within such time as the judge shall order; and in default of such proceeding the defendant or other person against whom the action may be so continued as aforesaid shall be entitled to enter a suggestion of such default and of the representative character of the person by or against whom the action may be proceeded with as the case may be, and to have judgment for the costs of the action and suggestion against the plaintiff or against the person entitled to proceed in his room as the case may be, and in the latter case to be levied of the goods of the testator or intestate. more of several 15 & 16 Vict. 122. If there be two or more plaintiffs or defendants and one or Death of one or more of them should die, if the cause of such action shall survive to plaintiffs or the surviving plaintiff or plaintiffs or against the surviving defendant defendants. or defendants, the action shall not be thereby abated; but such c.76 s. 136. death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants. surviving 123. In case of the death of a sole plaintiff or sole surviving Death of sole or plaintiff the legal representative of such plaintiff may by leave of plaintiff. the court or a judge enter a suggestion of the death and that he is Ib. s. 137. such legal representative, and the action shall thereupon proceed; and if such suggestion be made before the trial, the truth of the suggestion shall be tried thereat together with the title of deceased plaintiff; and such judgment shall follow upon the verdict in favor of or against the person making such suggestion as if such person were originally the plaintiff. surviving 124. In case of the death of a sole defendant or sole surviving Death of sole or defendant, where the action survives, the plaintiff may make a defendant. suggestion either in any of the pleadings if the cause has not arrived Ib. s. 138. at issue or on the record if it has so arrived of the death and that a No. 274. 28 VICTORIA, person named therein is the executor or administrator of the deceased; and may thereupon serve such executor or administrator with a copy of the writ and suggestion, and with a notice signed by the plaintiff or his attorney requiring such executor or administrator to appear if he reside within fifty miles of the General Post Office within eight or if he reside beyond that distance within sixteen days after service of the notice inclusive of the day of such service and that in default of his so doing the plaintiff may sign judgment against him as such executor or administrator; and the same proceedings may be had and taken in case of non-appearance after such notice as upon a writ against such executor or administrator in respect of the cause for which the action was brought; and in case no pleadings have taken place before the death, the suggestion shall form part of the declaration; and the declaration and suggestion may be served together and the new defendant shall plead thereto at the same time; and in case the plaintiff shall have declared but the defendant shall not have pleaded before the death, the new defendant shall plead at the same time to the declaration and suggestion; and in case the defendant shall have pleaded before the death, the new defendant shall be at liberty to plead to the suggestion only by way of denial or such plea as may be appropriate to and rendered necessary by his character of executor or administrator, unless by leave of the court or a judge he should be permitted to plead fresh matter in answer to the declaration; and in case the defendant shall have pleaded before the death but the pleadings shall not have arrived at issue, the new defendant besides pleading to the suggestion shall continue the pleadings to issue in the same manner as the deceased might have done, and the pleadings upon the declaration and the pleadings upon the suggestion shall be tried together; and in case the plaintiff shall recover, he shall be entitled to the like judgment in respect of the debt or sum sought to be recovered and in respect of the costs prior to the suggestion and in respect of the costs of the suggestion and subsequent thereto he shall be entitled to the like judgment as in an action originally commenced against the executor or administrator. Death before final judgment. 125. The death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgc. 76 ss. 139 140. ment be entered within two terms after such verdict; and if the 15 & 16 Vict. plaintiff in any action happen to die after an interlocutory judgment and before a final judgment obtained therein, the said action shall not abate by reason thereof if such action might be originally prosecuted or maintained by the executor or administrator of such plaintiff; and if the defendant die after such interlocutory judgment and before final judgment therein obtained, the said action shall not abate if such action might be originally prosecuted or maintained against the executor or administrator of such defendant; and the plaintiff, or if he be dead after such interlocutory judgment his executors or administrators, shall and may have a writ of revivor in Tenth Schedule. the form contained in the Tenth Schedule to this Act or to the like effect against the defendant, if living after such interlocutory judgment, or if he be dead then against his executors or administrators, to show cause why damages in such action should not be assessed No. 274. and recovered by him or them; and if such defendant his executors 28 VICTORIA, or administrators shall appear at the return of such writ and not show or allege any matter sufficient to arrest the final judgment or shall make default, an inquiry of damages shall be thereupon held or the amount for which final judgment is to be signed shall be referred to the Prothonotary; and upon return of the writ or delivery of the order with the amount endorsed thereon to the plaintiff his executors or administrators, judgment final shall be given for the said plaintiff his executors or administrators prosecuting such writ of revivor against such defendant his executors or administrators respectively. 15 & 16 Vict. c. 76 s. 141. 126. The marriage of a woman plaintiff or defendant shall not Marriage after cause the action to abate, but the action may notwithstanding be action. proceeded with to judgment; and such judgment may be executed against the wife alone, or by suggestion or writ of revivor pursuant to this Act judgment may be obtained against the husband and wife and execution issued thereon; and in case of a judgment for the wife execution may be issued thereupon by the authority of the husband without any writ of revivor or suggestion; and if in any such action the wife shall sue or defend by attorney appointed by her when sole, such attorney shall have authority to continue the action or defence unless such authority be countermanded by the husband and the attorney changed according to the practice of the court. action. 127. The insolvency of or assignment by the plaintiff in any Insolvency or action which the assignees or trustees might maintain for the benefit assignment after of the creditors shall not be pleaded in bar to such action unless the Ib. s. 142. assignees or trustees shall decline to continue and give security for the costs thereof upon a judge's order to be obtained for that purpose within such reasonable time as the judge may order; but the proceedings may be stayed until such election is made; and in case the assignees or trustees neglect or refuse to continue the action and give such security within the time limited by the order, the defendant may within eight days after such neglect or refusal plead the insolvency or assignment. (6.) Questions by consent without pleading. without Ib. s. 42. 128. Where the parties to an action are agreed as to the question questions of fact or questions of fact to be decided between them, they may after writ may be raised issued and before judgment by consent and order of a judge (which pleadings. order any judge shall have power to make upon being satisfied that the parties have a bona fide interest in the decision of such question or questions and that the same is or are fit to be tried) proceed to the trial of any question or questions of fact without formal pleadings; and such question or questions may be stated for trial in an issue in the form contained in the Eleventh Schedule to this Act; Eleventh and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action; and the proceedings in such action and issue shall be under and subject to the ordinary control and jurisdiction of the court as in other actions. Schedule. |