*WICKENS v. GEORGE STEEL and ALEXANDER [*488 STEEL. May 22.

The 37th section of the Common Law Procedure Act, 1852, which enables the court or a judge, in the case of the misjoinder of a defendant in an action on contract, to amend such misjoinder "as a variance at the trial," does not apply to a case where the party whose name is sought to be expunged has been joined, not by mistake or inadvertence, but designedly for the purpose of seeking to fix him with liability: and an application to amend under that section cannot be entertained after the verdict has been returned.

The 222d section does not apply to the case of a misjoinder of parties.

THIS was an action for work and labour, &c., as an attorney in the conduct of a suit upon the alleged retainer of both defendants, against the South Eastern Railway Company, in which the plaintiffs were nonsuited: see 16 C. B. 550 (E. C. L. R. vol. 81).

The cause was tried before Cresswell, J., at the sittings after last Michaelmas Term. The evidence showed a retainer by the defendant Alexander only, and the jury found that George,-who was a man of substance, and who had been held to bail by the plaintiff when about to proceed to Australia,-had been improperly made a party to the action against the railway company, and accordingly returned a verdict for him and against Alexander only; whereupon the learned judge said that that was in point of law a verdict for both defendants, and he directed it to be so entered.

Before the entry of the verdict, however, the plaintiff's counsel asked the learned judge to amend the record by striking out the name of George Steel. The learned judge thought he had no power to do so, but he reserved leave to the plaintiff to move to enter the verdict against Alexander Steel, if the court should be of opinion that the amendment ought to have been allowed.

Hawkins, accordingly, in Hilary Term last, obtained a rule calling upon the defendants to show cause why the record and all other necessary proceedings in this cause should not be amended by striking out the name of George Steel as a defendant, and why the verdict found for the defendants should not be set aside, and instead thereof a verdict entered for the plaintiff against the defendant [*489 Alexander Steel for 1327. 198. 10d.; or why there should not be a new trial, on the ground that the defendant Alexander Steel was liable, and to enable the plaintiff to amend the record and other necessary proceedings as aforesaid, by which the plaintiff might recover against him; and why the said record and other proceedings should not be amended accordingly.

W. G. Harrison now showed cause. The learned judge had no power to make the amendment proposed, or to reserve the point. The amendment could only have been made under the 37th or the 222d section of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76. The latter section is clearly inapplicable here; for, there is no "defect

or error" in the proceeding, nor was the amendment "necessary for the purpose of determining in the existing suit the real question in controversy between the parties." And, in Robinson v. Doyle, 3 Ellis & B. 396, it was distinctly held, that, where, in an action of contract, one of several defendants appears at the trial not to be liable, the proper course for the plaintiff, under the Common Law Procedure Act, 1852, is, to apply at the trial for an amendment under s. 37, and that the misjoinder is not such a defect or error as can be amended after the trial by the court in banc, under s. 222. The 37th section enacts that "it shall and may be lawful for the court or a judge, in the case of the joinder of too many defendants in any action or contract, at any time. before the trial of such cause, to order that the 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 *490] 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 hereinbefore (s. 35) directed to be amended, and upon such terms as the court, or judge, or other presiding officer by whom such amendment is made, shall think proper." Under the former statute, 3 & 4 W. 4, c. 42, s. 23, no amendment could be made except during the trial and before verdict: Brashier v. Jackson, 6 M. & W. 549.†(a) The policy of the statutes was, to leave the whole matter to be disposed of by the judge on the spot, seeing that he would be best able to judge of the propriety of allowing or withholding the amendment. Where the judge refuses to allow an amendment, the court clearly will not interfere.(b) [COCKBURN, C. J.-The course here adopted is the more convenient one. It is in effect the same as if the learned judge allows the amendment at the trial, leaving the other side to move.] At all events, the amendment here sought could not be granted after verdict. The judge had no power to divest the defendants of the right which the verdict had given them. The plaintiff took his chance with the jury; and, having lost the verdict as against both defendants, cannot be permitted afterwards to insist upon the separate liability of one of them. [COCKBURN, C. J.-The "trial" is, from the swearing of the jury to the finding of the verdict. The amendment here was not asked for until the trial was over.]

Hawkins, in support of the rule.-The application was early enough. if made before the verdict was recorded. The statute 22 & 23 Car. 2,

c. 9, s. 136, enacted, that, "in all actions of trespass, assault and

(a) And see Doe d. Bennett v. Long, 9 Car. & P. 773 (E. C. L. R. vol. 38).

(b) See Jenkins v. Phillips, 9 Car. & P. 766 (E. C. L. R. vol. 38); Lucas v. Beale, 10 C. B. 730 (E. C. L. R. vol. 70).

[*491

battery, and other personal actions, wherein the judge at the trial of the *cause should not find and certify under his hand upon the back of the record that an assault and battery was sufficiently proved by the plaintiff against the defendant, or that the freehold or title of the land mentioned in the plaintiff's declaration was chiefly in question, the plaintiff in such action, in case the jury should find the damages to be under the value of 408., should not recover or obtain more costs of suit than the damages so found should amount unto," &c. Under that statute, the certificate must of necessity be given after the trial is over. The same words in the 37th section of the Common Law Procedure Act, 1852, must receive the same interpretation. [CRESSWELL, J.-If I had made the amendment as prayed, what would have happened next?] The verdict would have been recorded against Alexander Steel. [CRESSWELL, J.-The jury had found no verdict against Alexander.] Before the application for the amendment, there had been no perfect finding. [CRESSWELL, J.-The jury had found that which I told them amounted to a verdict for both defendants.] Substantial justice will be done by the amendment prayed. [CRESSWELL, J.-The allowance of the amendment would have worked injustice. The defendant Alexander had nothing: George was a man of some substance, and, as he was about to sail for Australia, the plaintiff caused him to be arrested; and now the plaintiff wants to relieve himself from the consequences of his hasty proceeding.] The plaintiff failed to obtain a verdict against George merely because he was not in a condition to prove a joint retainer by the two. [COCKBURN, C. J.-I do not think this is a case for an amendment. Throughout the trial, the plaintiff persisted in his attempt to obtain a verdict against both defendants; and it was only when he failed in that attempt that he sought to shift his ground. In Robson v. Doyle, there was no application to amend at the trial. In Johnson v. Goslett, 18 C. B. 728 (E. C. L. R. vol. 86), A. sued *B., C., D., E., F., G., and H., in an action of contract; H. [*492 suffered judgment by default; and the evidence failed as against F. and G. and it was held that it was competent to the judge at Nisi Prius to amend the record, under s. 37 of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, by striking out the names of F. and G., and a proper case for the exercise of his discretion. [COCKBURN, C. J.— The 37th section makes the misjoinder amendable as a variance at the trial. Who ever heard of an amendment of a variance after verdict? Have you any authority for it?] There is no case precisely in point: but it is submitted that the proposed amendment was warranted by the statute, and in truth is no more than was done in Johnson v. Goslett. [COCKBURN, C. J.-There, the amendment was asked at the proper time; and, though the report in 18 C. B. 728 (E. C. L. R. vol. 86), does not in terms state so, the question of amendment must have been

reserved for the court. (a) Here, the case went to the jury upon the very issue the parties went down to try, viz. whether there was a joint retainer by the two defendants.] At all events, assuming that the application for the amendment was too late, the court will permit the rule to be made absolute in the other alternative, in order that substantial justice may be done between the parties.

COCKBURN, C. J.-I am of opinion that this rule should be discharged. I think the 222d section of the Common Law Procedure Act, 1852, has no application whatever to this case, and that the whole question turns upon the 37th section, which enacts, that, "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 (by *493] striking out the name or names of one or more of such defendants) as a variance at the trial, in like manner as the misjoinder of plaintiffs has been hereinbefore (in s. 35) directed to be amended, and upon such terms as the court, or judge or other presiding officer by whom such amendment is made, shall think proper." This the judge is to do, "if it shall appear to him that injustice will not be done by such amendment." This section evidently is designed to meet the case of a defendant who has been erroneously joined; and such erroneous misjoinder is put upon the footing of a variance: but I think it clearly was not intended to apply to a case where a party has been joined as a defendant, not by mistake, but intentionally and with the deliberate purpose of trying to fix him with liability,-as was done here. Down to the very last moment, the plaintiff's counsel insisted that George was properly made a defendant; and, the jury having, by their verdict, negatived his liability, he then sought to have his name expunged from the record. I am clearly of opinion that the 37th section was never intended to apply to a case where the question of the party's liability has been left to the jury, and the verdict has passed for him. But, assuming that that section did apply to such a case, I think this is not an occasion in which the discretion of the judge to allow the amendment could properly be exercised. To allow an amendment under such circumstances would, I think, lead to very dangerous consequences: it would be the means of causing parties to be improperly made defendants in the hope of their being fixed with a liability for which there was no foundation. Where a man has been made a defendant through inadvertence or misconception, and in the course of the trial the evidence against him turns out to be insufficient, and the plaintiff's counsel makes a *bonâ fide application to the judge to strike out fit case for the exercise of the judge's discretion under the statute. But, where the plaintiff's counsel deliberately goes to the jury with a view to obtaining a verdict against all the defendants, and fails as against one, I think

*494] his name on that account, that may be a very

(a) The report in 25 Law Journ. C. P. 274, does contain such a statement.

the case is not one in which he has a right to ask for the exercise of the judge's discretionary power in his favour. Independently, therefore, of the question as to the power of the court to allow this amendment, I think this was not a case for it.

As to the other branch of the rule, I must confess I see no ground. for a new trial. The verdict as it stands is perfectly right. The defendant George Steel is entitled to that verdict. By declining to grant a new trial, we shall not put the plaintiff into a situation in which he will be deprived of the opportunity of obtaining justice against the other defendant, Alexander Steel. But, if we were to make the rule absolute, we might be putting George Steel in a worse position than that in which he now stands.

The rest of the court concurring,

Rule discharged.

*SARAH EMMA DUNSTON v. PATERSON. June 5. [*495

The sheriff having a writ commanding him to arrest A., took B., who represented herself to be the person named in the writ:-Held, that, though B. might be estopped by her misrepresentation from suing the sheriff for the original taking, he could not justify detaining her after he had notice that she was not the real party.

THE declaration stated that the defendant assaulted the plaintiff, and arrested her, and caused her to be conveyed in custody along certain highways a distance of forty miles to gaol, and kept her in custody in such gaol for the space of eight weeks then next following; and, the plaintiff then being kept and detained in custody in the said gaol by the defendant, and certain persons, to wit, John Dunston and others to the plaintiff unknown, being desirous of examining the plaintiff in certain suits then pending in the High Court of Chancery, and having issued a writ of habeas corpus ad testificandum, the defendant thereupon caused the plaintiff to be removed in custody from the said gaol, and conveyed in such custody from the said gaol to the examiner's office of the said High Court of Chancery, a distance of forty miles, and there to be detained for the space of two days; and the defendant thereupon caused her to be conveyed from the said examiner's office back to the said gaol, and thereupon again detained her in custody in such gaol for a further period of ten days; and, during the several times aforesaid, the plaintiff was prevented from obtaining her means of, and was removed from her home and livelihood; and, during the times of her imprisonment in the said gaol, she was kept upon weak, improper, and insufficient food; and, by means of all the premises aforesaid, the plaintiff was greatly disordered and weakened in body and mind, and underwent great pain, and was otherwise injured in her credit and circumstances: and the plaintiff claimed 5001.

The defendant pleaded,-first, not guilty.