summons, or under the authority of this act, shall be pearance to by delivering a memorandum in writing according to writ of sumthe following form, or to the like effect:

[If the defendant appears in person, here give his

mons.

Entered the

address.]
day of 18
,

Such memorandum to be delivered to the proper officer or person in that behalf, and to be dated on the day of the delivery thereof.

See R. G., H. T. 1853, rr. 2, 166, post.

32. All such proceedings as are mentioned in any Proceedings writ or notice issued under this act shall and may be mentioned in had and taken in default of a defendant's appear- may be had

ance.

This, of course, does not give validity to proceedings mentioned indeed in writs or notices, but not sanctioned by the act.

writ or notice

and taken.

where only some of the

writ specially endorsed.

appear to a

33. In any action brought against two or more de- Proceedings fendants, where the writ of summons is endorsed in the special form hereinbefore provided, if one or more defendants of such defendants only shall appear, and another or others of them shall not appear, it shall and may be lawful for the plaintiff to sign judgment against such defendant or defendants only as shall not have appeared, and, before declaration against the other defendant or defendants, to issue execution thereupon, in which case he shall be taken to have abandoned his action against the defendant or defendants, who shall have appeared; or the plaintiff may, before issuing such execution, declare against such defendant or defendants as shall have appeared, stating, by way of suggestion, the judgment obtained against the other defendant or defendants who shall not have appeared, in which case the judgment so obtained against the defendant or defendants who shall not have appeared shall operate and take effect in like manner as a judg

Nonjoinder and mis

joinder of plaintiff's may be amended before trial.

ment by default obtained before the commencement of this act against one or more of the several defendants in an action of debt before the commencement of this act.

The special endorsement under s. 25 (ante, p. 31), is confined to writs issued in actions ex contractu. In actions of this nature a plea by one defendant (with one or two exceptions) is for the benefit of all; it goes to the contract alleged in the declaration, so that if one defendant succeed in his plea, a judgment by default against the others goes for nothing, the plaintiff having failed to make out a joint liability (Morgan v. Edwards, 6 Taunt. 398). So a plaintiff, where he has signed judgment by default against one or more of several defendants in such actions, cannot be nonsuited; but if he fails the defendant must have a verdict (Hannay v. Smith, 3 T. R. 662).

If, therefore, there be no appearance for one or more of several defendants, the plaintiff has two courses to follow. He may abandon his action against him or those who appear, and issue execution against those who suffer judgment; or he may go on to declare against him or those who appear, with the risk of having a worthless judgment if he ultimately fail in his action. As to costs, see Morgan v. Edwards (6 Taunt. 398).

JOINDER OF PARTIES.

And with respect to the joinder of parties to actions, be it enacted as follows:

34. It shall and may be lawful for the court or a judge, at any time before the trial of any cause, to order that any person or persons, not joined as plaintiff or plaintiffs in such cause shall be so joined; or that any person or persons, originally joined as plaintiff or plaintiffs, shall be struck out from such cause, if it shall appear to such court or judge that injustice will not be done by such amendment, and that the person or persons to be added as aforesaid consent, either in person or by writing, under his, her or their hands, to be so joined, or that the person or persons to be struck out as aforesaid were originally 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 to the amendment of the pleadings (if any), postponement of the trial, and otherwise, 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 co-plaintiffs shall, subject to any terms imposed as

aforesaid, be the same as if such person or persons had been originally joined in such cause.

Although it may be doubted whether this and the next following section apply to actions of ejectment, yet their object may be attained in such actions by amendment under sect. 222, post (Blake v. Done, 7 H. & N. 465).

in contract.

The omission in actions on contract of a party as plaintiff is Nonjoināër fatal, except, indeed, in the case of executors (Jones v. Smith, of plaintigs 1 Exch. 831, where the cases are collected); see also Agacio v. Forbes (14 Moore, P. C. C. 160). If the objection appears on the pleadings, it may be taken advantage of by demurrer or by motion in arrest of judgment, or by error; but if it does not appear upon the pleadings, and arises upon the trial by way of variance between the contract declared upon and that proved, it would, unless amended, lead to a nonsuit or to an adverse verdict (Chanter v. Leese, 4 M. & W. 295). But the nonjoinder may be remedied under the above section at any time before the trial, or, under the following sections, even, at the trial, unless notice of objection to the nonjoinder has been given before or with the plea. If such notice of objection be given, or if a plea in abatement be pleaded (now a very unusual course since the notice introduced by this act answers the same purpose, and need not be delivered, as a plea in abatement must, within four days after delivery of the declaration, and need not be verified by affidavit as a plea in abatement must), the plaintiff may, under s. 36 (post, p. 43), amend without order upon payment of the costs of and occasioned by the amendment, and upon filing a consent in writing (unless specially dispensed with) of the parties added, verified by affidavit of their handwriting, and giving notice to the defendant (R. G., H. T. 1853, r. 6, post), who may then plead de novo.

In actions on tort the nonjoinder of parties who are jointly Nonjoinder wronged can only be taken advantage of by notice or plea in of plaintiffs abatement as above (Addison v. Overend, 6 T. R. 766; Broadbent in tort. v. Ledward, 11 A. & E. 209; Phillips v. Claggett, 10 M. & W. 102); if neither of those steps be taken, the plaintiff will be entitled to recover his share only of the damages sustained (Sedgworth v. Overend, 7 T. R. 279; Bloxham v. Hubbard, 5 East, 407).

This, which was formerly a fatal objection unless amended, is Misjoinder so no longer since the Common Law Procedure Act, 1860, s. 19 of plaintiffs (which see, post), and it is now reduced to a matter of mere costs; generally. unless such misjoinder be inconsistent with the alleged cause of action, when it necessarily constitutes a fatal objection (Bellingham v. Clarke, 1 B. & S. 332).

This is not a fatal objection, and can only be taken advantage Nonjoinder of by plea in abatement (Rice v. Shute, 5 Burr. 2613), which can of defendants only be pleaded when the alleged co-defendant is within the in contract. jurisdiction; and which, as above stated, must be pleaded within four days from the delivery or filing of the declaration, and must be verified by affidavit (see infra). It must be borne in mind that a judgment recovered against one of several joint debtors is a good plea in bar to an action against another of them in respect of the joint as distinguished from the several liability (if any) (King v. Hoare, 13 M. & W. 494). But, by reason of s. 11 of the Mercantile Law Amendment Act, 1856 (post), a judgment recovered against one or more joint debtors not beyond seas when

Nonjoinder

the cause of action accrued is not now a bar to a subsequent action against the joint debtor or debtors who were beyond seas when the cause of action accrued.

This is no ground of objection; each of several who jointly of defendants commit a wrong is separately liable for the whole wrong done (Sutton v. Clarke, 6 Taunt. 29; and see Reg. v. Brown, 7 E. & B. 757).

in tort.

Misjoinder This is fatal, unless amended before verdict (Robson v. Doyle, of defendants 3 E. & B. 396; Wickens v. Steel, 2 C. B., N. S. 488). See s. 37,

in contract.

Misjoinder

in tort.

n. (post, p. 44).

This merely entitles the party wrongly joined to a verdict and of defendants his costs, but does not affect the liability of the real wrong-doer (Govett v. Radnidge, 3 East, 62; Bretherton v. Wood, 3 B. & B. 54; Pozzi v. Shipton, 8 A. & E. 963; Morrow v. Belcher, 4 B. & C. 704).

Pleas in abatement.

A plea in abatement should mention all the co-defendants not joined, so that the plaintiff may have a better writ, otherwise, if the plaintiff take issue on the plea, he will succeed (Crellin v. Calvert, 14 M. & W. 11). So if any one of the co-contractors is not resident within the jurisdiction, this plea cannot be pleaded successfully (Joll v. Curzon, 4 C. B. 249).

Upon a plea in abatement for nonjoinder, the plaintiff (if the plea is well founded, or if it is doubtful whether it is well founded or not) ought to amend the writ, (which he may do without any order,) serve the amended writ on the persons thus added as defendants, and declare de novo. In such case the new declaration must commence in a special form (s. 60, post, p. 62). As to the costs of the plea, see ss. 39, 60 (post, pp. 45, 63); or he may enter a cassetur breve, and thus evade payment of any costs to the defendant, and abandon his present action. If the plaintiff amend, by inserting the names of the additional defendants mentioned in the plea, the date of such amendment will, as to them, be the commencement of the action, the object of this provision being to save the rights of these defendants, if it should happen, that, to the plaintiff's claim, the Statute of Limitations is pleadable by them; for if a defendant in any action on simple contract pleads in abatement that any other person ought to be jointly sued, and issue be joined on such plea, and it appears at the trial that the action could not, by reason of the Statute of Limitations, be maintained against the other person named in such plea, the issue is to be found against the party pleading the same (9 Geo. 4, c. 14, s. 2).

The plea must state the persons not joined to be still living (1 Saund. 291), and to be residing within the jurisdiction of the court (3 & 4 Will. 4, c. 42, s. 8).

It must be verified by affidavit (4 & 5 Anne, c. 16, s. 11), setting out their place of residence as distinguished from that of mere business (3 & 4 Will. 4, c. 42, s. 8; Maybury v. Mudie, 5 C. B. 283). The affidavit must be delivered with the plea, unless an extension of time be granted (Johnson v. Poppleweel, 2 Tyrw. 717).

The title of the affidavit must be strictly accurate in the names of the parties (Poole v. Pembrey, 1 Dowl. 692; Fletcher v. Lechmere, 2 Dowl. N. S. 848). The verification must be absolute,

See as to cassetur breve, sect. 60, n. (post, p. 63).

and the words "is true in substance and fact" are essential, so as to make the affidavit precise (Onslow v. Booth, Str. 705). If the affidavit is insufficient, the plea may be treated as a nullity (Bray v. Halter, 2 B. Moore, 213; Garrett v. Hooper, 1 Dowl. 28), and the plaintiff may sign judgment (Lovell v. Walker, 8 M. & W. 299). See further as to the requisites of this affidavit, notes to s. 36 (post, p. 43). As to the statement of the residence of the party not joined as a defendant, see also Wheatley v. Golney (9 Dowl. 1019); Lambe v. Smythe (15 M. & W. 433); Newton v. Stewart (4 D. & L. 89); White v. Gascoigne (3 Exch. 36); Maybury v. Mudie (ubi supra).

A plea in abatement must be pleaded within four days after declaration (Ryland v. Wormwald, 5 Dowl. 581).

As to pleading de novo after amendment, see s. 90 (post, p. 85). The replication to the plea, it would seem, may be a "joinder of issue," under s. 79 (post, p. 77); see also s. 38, n. ( post, p. 34). Upon issue taken on a plea in abatement, the plaintiff must be prepared to prove his demand, or he will not recover (Welcher v. Le Pelletier, 1 Camp. 481).

Under this section may be noticed pleas in abatement of cover- Pleas of ture of the plaintiff or defendant,-rarely pleaded however.

These pleas are not within 3 & 4 Will. 4, c. 42, s. 8, and therefore do not require an affidavit of the husband's residence (Jones v. Smith, 3 M. & W. 526); but as dilatory pleas, within 4 Anne, c. 16, s. 11, they require an affidavit of verification.

If a wife succeed on this plea, she may sue out execution in her own name (Wortley v. Rayner, Doug. 637). When pleaded by a wife, she must plead it in person (2 Saund. 209, n.).

Other pleas in abatement are to the jurisdiction; or the pendency of another action for the same cause in one of the Superior Courts.

coverture.

The application to amend should be to amend the writ and Application copy, as well as the declaration and subsequent proceedings, if to amend. any (see s. 36, post, p. 43).

Amendments are generally ordered upon terms of payment of costs of application and of the costs occasioned by the amendment. The court or a judge exercises a discretion in allowing costs (Wall v. Lyon, 1 Dowl. 714). It has been held that the judge may, on hearing an application at chambers, fix the amount of costs at once (Collins v. Aaron, 6 Dowl. 423), and this is very frequently done. Some judges, in order to avoid interlocutory taxation, direct the costs to be the costs of the party (not amending) in the cause in any event; and this, which is a growing, is generally the most beneficial practice. But it may be doubted whether costs so ordered become payable at all, in cases where a juror is withdrawn, or some settlement is come to apart from the ordinary event of an action.

The defendant ought, if possible, to get inserted in the order Pleading for amendment the terms on which he is to plead. If he had after amendalready pleaded, the plea, under the old practice, would have ment. been considered as a plea to the amended declaration (Fagg v. Borsley, 2 Dowl. 107), and is so still, unless he pleads de novo (s. 90, post). It was different in the case of a demurrer (Smith v. Kearne, 1 D. & L. 992). The defendant has now two days to plead de novo after the amendment, unless it is otherwise ordered. If the declaration is amended before plea, the defendant must still plead within the time limited to do so or within the two days, unless it is otherwise ordered (s. 90, post, p. 84).