Joinder of claims by

husband and wife with claims in

band.

ment, and also to the general costs of the cause, and of the trial; and held also, that the plaintiffs were not entitled to any costs as against B. and G. (Cazneau v, Morrice and others, L. J. 25, Q. B. 126).

40. 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 co-plaintiff, it shall be lawful right of hus- 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, shall abate.

Different causes of

In the case of Dengate v. Gardiner, 4 M. & W. 5, which was an action for slander of the wife, whereby she lost employment, evidence of this special damage was not admitted in an action by the husband alone.

The profit of the wife's wages are entirely the husband's, and "he alone (said Lord Abinger) can sue for the loss of them, just as in trespass by husband and wife for an assault on the wife, the surgeon's bill cannot be recovered. The right of action would not survive to her." The husband, therefore, in case of slander of his wife, was formerly obliged to sue alone for any special damage; just as in trespass, he was compelled to bring a separate action for the surgeon's bill. Where the defendant said of the plaintiff's wife, "you are a nuisance to live beside of, and your house is no better than a bawdy house;" it was held that an action for this slander might be maintained by the husband alone (Nickle v. Reynolds, 7 C. B., N. S. 114).

The above enactment is limited to actions "for an injury done to his wife." It permits the husband to add to the joint cause of action claims arising to himself in his own right. The section does not in its terms limit the claims, which may be thus added to those he has in respect to the injury done to the wife (as for a surgeon's bill); and it might thence be argued that the husband may not only add counts against the defendant, for the special damage he has sustained in respect of the injury to the wife, but also counts for goods sold and delivered, or money lent by himself. But the intention of the commissioners, in recommending the change effected by this section (First Report, p. xi.), seems to have been, that claims arising to the husband in respect of the injury to the wife, and those alone, should be included in the joint action.

If the claims of the husband in his own right are stated in the same action, they must be set out in separate counts.

As to accounts stated with husband and wife, see Johnson and Wife v. Lucas, L. J. 22, Q. B. 174.

JOINDER OF CAUSES OF ACTION.

And with respect to joinder of causes of action, be it enacted as follows:

41. Causes of action, of whatever kind, provided

but separate

ordered.

they be by and against the same parties and in the action may same rights, may be joined in the same suit; but be joined, this shall not extend to replevin or ejectment; and trials may be where two or more of the causes of action so joined are local, and arise in different counties, the venue may be laid in either of such counties; 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.

Power is given to the plaintiff by this section of joining in one action all his claims, of whatever nature, against the same defendant, provided these claims are in the same right; but counts by the plaintiff as an individual cannot be joined with counts by him as an executor (2 Saund. 1172; 2 Wms. Ex., 5th ed. 714721). This section is permissive, not compulsory. The commissioners who recommended this change, thought that plaintiffs might be safely trusted with this power. A plaintiff is not likely to damage his claim for criminal conversation by adding a claim which may direct attention to a question of whether he is entitled to the price of goods sold, or other incongruous matter (First Report, p. xxxii.).

As to the venue, and changing the same, see s. 59, n., post.

QUESTIONS BY CONSENT WITHOUT Pleading. And for the determination of questions raised by consent of the parties without pleading, be it enacted as follows:

Formerly a special case could only have been stated for the opinion of the court after the parties had joined issue (3 & 4 Will. 4, c. 42, s. 25).

Questions of

fact may, after writ

issued, by leave of a judge, be

consent and

raised with

42. Where the parties to an action are agreed as to the question or questions of fact to be decided between them, they may, after writ issued, and before judgment, by consent and order of a judge, (which order any judge shall have power to make, upon being satisfied that the parties have a out pleadbona fide interest in the decision of such question ings. 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 schedule (A.) to Questions by this act annnexed, marked No. 6, 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

consent without pleading.

Agreement may be en

costs according to the result of the issue.

issue shall be under and subject to the ordinary control and jurisdiction of the court, as in other actions.

According to s. 227, the word "action" here means a "personal action," brought by writ of summons in any of the Superior Courts, and did not include replevin, ejectment, or any of the subsisting real actions; ejectment is provided for by s. 168 et seq., post; as to replevin, see C. L. P. A. 1860, s. 22, n. et seq.; and as to real actions, see C. L. P. A. 1860, ss. 26, 27, post.

See as to the power of the court to direct an issue to be tried in the case of compulsory references, C. L. P. A. 1854, s. 4, post. It is doubtful whether error can be brought upon a special case stated with some of several defendants only, the others having suffered judgment by default (Boyd v. Robins and others, 5 C. B., N. S., 597); semble, these sections do not apply at all in such a

case.

The judge must be satisfied that the parties have a bona fide interest in the decision of the question. In a case where, in the opinion of the court, the parties merely desired to allay a doubt as to the true construction of a will, the Court of Common Pleas declined to give any opinion (Doe d. Duntze v. Duntze, 6 C. B. 100).

43. The parties may, if they think fit, enter into tered into for an agreement in writing, which shall not be subject the payment to any stamp duty, and which shall be embodied of money and in the said or any subsequent order, that upon the finding of the jury in the affirmative or negative of such issue or issues, a sum of money fixed by the parties, or to be ascertained by the jury upon a question inserted in the issue for that purpose, shall be paid by one of such parties to the other of them, either with or without the costs of the action.

Judgment to

be entered

the agree

ment, and execution issued forth

44. Upon the finding of the jury in any such according to issue, judgment may be entered for such sum as shall be so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution with, unless may issue upon such judgment forthwith, unless otherwise agreed, or unless the court or a judge shall otherwise order for the purpose of giving either party an opportunity for moving to set aside the verdict, or for a new trial.

stayed.

Proceedings upon issue may be recorded.

45. The proceedings upon such issue may be recorded at the instance of either party, and the judg ment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.

On a judgment recorded under this section error will lie, as it is not expressly excluded, as in King v. Simmons (7 Q. B. 289); and see Thorpe v. Plowden (1 L. M. & P. 387).

The judgment will also be a "record" for the purpose of being used in evidence if required.

46. The parties may, after writ issued, and before judgment by consent and order of a judge, state any question or questions of law in a special case for the opinion of the court, without any pleadings.

The court will decline to give any opinion when there is reason to believe that the action is not bona fide brought for the purpose of determining a matter in controversy between the parties (Doe d. Duntze v. Duntze, 6 C. B. 100). The case should be confined to questions of law; if matters of fact are in issue the court will leave the parties to go to a jury (Aldridge v. Great Western Railway Co., 3 M. & G. 515; see also Price v. Quarrel, 12 A. & E. 784).

It has been thought that when a special case under this section has been settled, it will not be amended by the court unless by consent of the parties (Mersey Docks, &c. v. Jones, 36 L. T. 243; and see Notman v. Anchor Insurance Company, 6 C. B., N. S., 536; but see Carpenter v. Parkes, L. J. 27; C. P. 78).

Agreement ment of money and cording to

as to pay

costs, ac

upon special

47. The parties may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, and which shall be embodied in the said or any subsequent order, that upon the judgment of the court being given in the affirmative or negative judgment of the question or questions of law raised by such case. special case, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of such parties to the other of them, either with or without costs of the action; and the judgment of the court may be entered for such sum as shall be so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed by proceedings in error.

The last words of this section,-" unless stayed by proceedings in error,"-did not, as it seems, allow of error being brought upon a special case stated under s. 46. Error did not lie on a special case stated under 3 & 4 Will. 4, c. 42, s. 25, such a case not being entered of record; and there can be no error at common law but on a record: the provisions of s. 46 for entering a special case on record, were confined to the issue given by s. 42; see further Thorpe v. Plowden, s. 45, n., supra. But now by the C. L. P. A. 1854, s. 32, error may be brought upon a special case. It was accordingly held by the Court of Exchequer Chamber (distinguishing Hughes v. Lumley, L. J. 24, Q. B. 29), that where the consent of the parties to state a special case was given before the C. L. P. A. 1854, came into operation, but the judge's order was not obtained until the day upon which it came into operation, error might be brought (Elliott v. Bishop, 10 Exch. 522).

Costs to fol

low the

48. In case no agreement shall be entered into as to event, unless the costs of such action, the costs shall follow the event, and be recovered by the successful party.

otherwise

agreed.

Fictitious

and needless averments not to be made.

Judgment upon de

murrer to be

given according to

the very right

of the cause.

Objections by way of special de

PLEADINGS IN GENERAL.

And with respect to the language and form of pleadings in general, be it enacted as follows:-*

49. All statements which need not be proved, such as the statement of time, quantity, quality and value, where these are immaterial; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of acts of trespass having been committed with force and arms, and against the peace of our lady the Queen; the statement of promises which need not be proved, as promises in indebitatus counts, and mutual promises to perform agreements; and all statements of a like kind, shall be omitted.

The insertion, therefore, of any of these formal statements will be an irregularity, and if embarrassment be caused thereby, an application may be made under s. 52, post.

The bailment must still be stated, however, where it is material and traversable (Ross v. Hill, 2 C. B. 877).

50. Either party may object by demurrer to the pleading of the opposite party, on the ground that such pleading does not set forth sufficient ground of action, defence or reply, as the case may be; and where issue is joined on such demurrer, the court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in or lack of form; and no judgment shall be arrested, stayed or reversed for any such imperfection, omission, defect in or lack of form.

See Richards v. Beavis, 2 Com. Law Rep. 673.

It would manifestly be quite out of place here to attempt to show within anything like reasonable space what constitutes a pleading "in matter sufficient." This belongs to the science of pleading itself, not to a commentary on the practice of the courts.

51. No pleading shall be deemed insufficient for any defect which could heretofore only be objected murrer taken to by special demurrer.

away.

See as to special demurrer, Bullen and Leake's Precedents of Pleadings, p. 493.

*These sections relating to pleadings apply whether the action was originally commenced in the Superior Courts or not (Messiter v. Rose, L. J. 22, C. P. 78). It is not proposed to notice here the various decisions of the courts upon the merits of particular pleadings; and the reader is referred for such information to the excellent Precedents of Pleadings recently pubished by Messrs. Bullen & Leake.