Persons

claiming jointly, severally, or alternatively.

It is thought that the subject will be best considered with reference to

1st. The right which a plaintiff has at the initiation of the action to join parties to the suit.

2nd. The right which a defendant has along with his defence to join new parties to the action.

3rd. The right which either party has during the progress of the action to apply to the Court for leave to add, substitute, or strike out parties, and the power of the Court to grant or refuse such application.

1st. The right of the plaintiff at the initiation of the suit to join parties. This right extends to the selection of proper plaintiff's as well as proper defendants, so that the first question is-Who can properly be joined together as plaintiffs in the same action? Turning to Order XVI. r. 1, we find that "all persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist "-so far there is no enlargement of the right of joining parties, for under the old system the mere number of the plaintiffs was no objection provided they all sued jointly in respect of a joint cause of action. But the rule goes further: All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative." These words are of a most sweeping and comprehensive character. That they give a right of joining parties as plaintiffs far in excess of anything allowed under the old system is clear; but what limit is now left upon the plaintiff's right is by no means so clear.

66

Analysing this rule carefully, it will be seen that several plaintiffs have a right to sue together in three cases. There is the case where they all have a joint claim against the defendant or defendants, as where they are joint promisees on a contract, or joint covenantees in a bond, or when, being traders, they have been jointly slandered in the way of their trade. In all these cases, and many others of the like kind, there is no diffi"Jointly." culty. Under the old system they might have sued together in respect of this joint cause of action, and the rule merely in terms preserves this right. But the rule goes beyond this. For the moment passing over the word "severally," it says that all persons may be joined as plaintiffs in whom a right to relief is alleged to exist "in the alternative.”

"In the

tive." Difference

former and

present

trated

Before the Judicature Acts neither at law nor equity was it permitted to several plaintiffs to come into Court, and in effect alternasay, some one or other of us is entitled to sue, if one of us is not, then the others are, or if the others are not, then the first between mentioned is." This rule was rigorously enforced that every plaintiff suing must allege that he, in conjunction with the rule illusother plaintiffs, had a right of action against the defendant; principal and the effect of this in not a few cases was to produce con- and agent. siderable hardship. It not unfrequently happens in practice that it is a matter of the greatest doubt which one of two or three persons is entitled to sue on a particular contract or for a particular injury, although there is no doubt that the defendant is liable to some one or other of them. Take the case of a sale by an agent. There may very well arise a difficulty as to whether the agent or his principal should sue. It is certain the defendant is liable on the contract, but to whom? If he is not liable to the agent, he is to the principal, and vice versâ, but not to both. Now in such a case the principal and agent could not have joined as plaintiffs in the same action, and setting out the facts claim relief alternatively, that is to say, if the principal shall be held not entitled to recover, that the agent might recover, or the converse. The only thing to be done was for one of the two to risk an action, when he was liable to be met with the defence that it was the other who was entitled to sue, and if this defence succeeded, then there was nothing for it but for the other to sue, when he in turn might be met with the defence that he was not entitled, but the plaintiff in the first action. And this result could very well be brought about, that for one matter you might have two actions and a different result in each on the same point.

The rule of the new practice under consideration was intended to remedy such a state of things, and in the case supposed to permit the agent and principal to sue together and claim relief alternatively. The case first supposed of the principal and agent suing together when there is a doubt as to which is entitled to sue, is only one of many cases where a like difficulty has arisen, and is likely to arise again. For instance, there is frequently a doubt as to whether the bailor or bailee of particular goods is entitled to sue for an injury to them; again, there may arise a difficulty as to whether a consignor or con

Bailor and

bailee. Consignor

and con

signee, &c., &c.

"Severally."

Booth v.
Briscoe.

66

signee of goods delivered to a carrier is the right party to sue ; so whether the heir or a devisee should sue. The new rule meets this difficulty by in effect saying, Join both or all the parties who seem to have a right to sue, and then you can claim that they are all entitled to recover, or you can claim that in the alternative if one does not succeed the other or others may, or you may claim that each plaintiff severally may obtain some relief," subject to this, that "the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court or a judge, in disposing of such costs, shall otherwise direct." R. S. C. Ord. XVI. r. 1.

So far there is no great difficulty in determining what the rights are which rule 1 of Order XVI. gives of joining plaintiffs; but there is still a word in the rule the intrepretation of which is by no means easy. "All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative." The question is, what enlarged powers of joining plaintiffs are conferred by the word "severally?" One reading of the rule upon the point is, that it enables any number of plaintiffs to join together, and combine in the same action their several and distinct causes of action against a defendant or defendants; and it must be admitted that this construction seems to be supported by high authority. In fact, this seems to be the considered judgment of the Court of Appeal in the case of Booth v. Briscoe (L. R. 2 Q. B. D. 496; 25 W. R. 838).

In this case the plaintiffs were the eight trustees of certain charities at Outwell, and they brought an action against the defendant, who was rector of Outwell, for a libel published by him in a newspaper, commenting on the improper management of the charities "by the trustees." At the trial the jury gave a verdict for the plaintiffs, with 40s. damages. The Queen's Bench refused a new trial, moved for on the ground that the verdict was against the weight of evidence, and the defendant appealed. No question was raised by the defendant's counsel either before the Queen's Bench or the Court of Appeal as to the right of the eight plaintiffs to sue together; but during the argument in the latter Court, Bramwell, L.J., raised the difficulty himself, and the Court took time to consider the point.

of Bram

well, L.J.

Judgment was subsequently delivered by Bramwell, L.J., who, after remarking that the Court never had any doubt that the appeal ought to be dismissed on the questions raised by the defendant, went on, "The only remaining matter was a doubt Judgment I had suggested, whether these eight plaintiffs, if they had any cause of action, had not eight separate causes of action, and whether they could be joined as plaintiffs. I am still of opinion they had eight causes of action, and that they might have brought eight actions; and the question is whether under the Judicature Act any difference has been made so that they can bring one action. Where a tort has been done, the tort is a separate tort to each man who complains. If, indeed, there were a joint tort, for instance, slander of several persons in partnership, the persons injured could have joined and maintained the action, but could have maintained it for the joint damage only. Here there is no joint damage. Each of the plaintiffs, if there is a libel, has been separately libelled. There is no doubt, therefore, that prior to the Judicature Act this proceeding would have been erroneous; but it seems to us that under Order XVI. r. 1, these plaintiffs may well join as plaintiffs. Now it seems to me that the word 'severally must comprehend the present case. I think, therefore, that they may very well join ;" and accordingly the appeal was dismissed.

on.

If this decision applies beyond the facts of the particular case, it will, taken in conjunction with rule 4 of Order XVI., which permits all persons to be joined as defendants against whom the right to any relief is alleged to exist, "whether Comments jointly, severally, or in the alternative,' lead to some extraordinary results which it is difficult to think the framers of the rules contemplated. Rule 4 says all persons may be made defendants against whom the right to any relief is alleged to exist, &c., that is to say, the right to any relief is alleged to exist by any person who may be properly joined as a plaintiff; and then rule 1, as interpreted by Booth v. Briscoe, declares that all persons may be properly joined as plaintiffs who choose to combine their separate grounds of claim in the same action. By this means you might have an indefinite number of plaintiffs, and if possible a still more indefinite number of defendants. Observe how this would work in

on Booth

v. Briscoe.

practice. Suppose, as in Booth v. Briscoe, there are eight Comments plaintiffs. They have, it is true, eight causes of action against the same defendant; but let us suppose that in addition each one of the eight has independent and totally different causes of action against a number of other persons. A., say, can sue Y. upon a bill of exchange and M. for breach of contract, B. can sue N. for assault and R. for a libel, C. can sue S. in trover, and so on. Can all these causes of action be joined together, and possibly thirty or a hundred different disputes be tried at the same time? It is manifest that they cannot. Probably the rule only means that where two or more plaintiffs have some right to relief in respect of a particular subject-matter, but they are in doubt as to what their exact rights among themselves are, they may all join together as plaintiffs and claim that they are all entitled (jointly), or that each one has a separate right to relief (severally), or that, failing one of them, the other or others may get relief (in the alternative). There can be no doubt that the rule does go so far; but it is submitted that it does not go beyond this. Of course rule 4 must be read in conjunction with rule 1, even with the limited construction put upon it as above; but it is suggested that several plaintiffs cannot generally sue together in respect of distinct subjectmatters of action, neither can several defendants be sued together in respect of distinct subject-matters; and the result of the combined operation of rules 1 and 4 on the right of joining plaintiffs would then be, that where you have a given subject-matter of litigation, all persons can be joined as plaintiffs who are entitled to any kind of relief, joint, several, or in the alternative, against any defendant liable jointly, severally, or in the alternative on that particular subject-matter of litigation, but not otherwise.

Probable limit to application

of rule.

And the few cases decided on the point since the first edition of this work was published would seem to bear out this view. Thus, in Smith v. Richardson (4 C. P. Div. 113; 48 L. J. C. P. 140 ; 27 W. R. 230; 40 L. T. 256), a joint claim was held embarrassing, and struck out under the following circumstances. S., the indorsee of a bill of exchange, sued the defendant as acceptor. The defendant having obtained leave to defend on an affidavit denying the acceptance, S. joined F., the drawer of the bill, as a co-plaintiff, and the