Pleadings framed to embarrass may be one can ascertain the case upon which he relies either in point of law or fact, and with this view it is provided by section 52. "If any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the court or a judge to strike out or amend such pleading, and the court or any judge shall or amended. make such order respecting the same, and also respecting the costs of the application, as such court or judge shall see fit." struck out Lastly, to illustrate these various alterations, after reciting that it is desirable that examples should be given of the statements of the causes of action and the forms of pleading, it is enacted by section 91. "The forms contained in the Schedule (B.) to this act annexed shall be sufficient, and those and the like forms may be used, with such modifications as may be necessary to meet the facts of the case, but nothing herein contained shall render it erroneous or irregular to depart from the letter of such forms, so long as the substance is expressed without prolixity." Form of de IX. DEMURRERS. Demurrers will now be confined to cases where a pleading is thought to be substantially bad. The words in the following section, "except in the cases herein specifically provided for," were left in by mistake after the specific provisions as prepared by the commissioners were struck out. 89. "The form of a demurrer, except in the cases murrer and herein specifically provided for, shall be as follows, or to the like effect: joinder in de murrer. "The defendant, by his attorney [or in person, &c., or plaintiff, says, that the declaration [or plea, &c.] is bad in substance;" and in the margin thereof some substantial matter of law intended to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside by the court or a judge, and leave may be given to sign judgment as for want of a plea; and the form of a joinder in demurrer shall be as follows, or to the like effect: "The plaintiff [or defendant] says, that the declaration [or plea, &c,] is good in substance." The demurrer, as every other pleading, must be intituled of the day of the month and year when it is delivered; but no signature will any longer be necessary (sect. 85). The enactment as to the statement of the cause of demurrer is in part the same as H. T., 4 Will. IV. r. 2; and it is presumed that the last proviso in that rule will still be applicable," that the party demurring may at the time of argument insist upon any further matters of law, of which notice shall have been given to the court in the usual way." Indeed, as the court is bound "to give judgment according to the very right in the cause and matter in law," they could not well disregard any objection, whether specified in the margin or not, although they might postpone the case, and, if any rule of practice had been violated by the omission, at the expense of the party in default. The omission to state any points on the statement of a frivolous point should be objected to by application to the court or judge, which will be upon an affidavit, with a copy of those pleadings annexed (see Danieli v. Lewis, 1 Dowl. Ñ. S. 542; Hamer v. Anderton, 9 Dowl. 111), or at least those to which the demurrer is pleaded. The objection would be waived by delay, or a step taken in the cause, such as joinder in demurrer. Upon a demurrer being struck out, the judgment would in some cases be on the whole record, as for want of a plea. (See Tucker v. Barnesley, 16 M. & W. 54.) The court would have power to strike out a plea under its general jurisdiction. (See Cutts v. Surridge, 9 Q. B. 1015; Lane v. Ridley, 12 Jur. 44.) The joinder in demurrer will be as in the form given, and by R. G., H. T., 4 Will. IV. r. 3, "No rule for joinder in demurrer shall be required, but the party demurring may demand a joinder in demurrer, and the opposite party shall be bound within four days after such demand to deliver the same, otherwise judgment." The term "rejoining gratis" does not dispense with this demand of joinder. (Jones v. Key, 2 Dowl. 265.) Where a defendant, after the time for joining in demurrer had expired, but before judgment signed obtained a rule nisi to set aside the proceedings, with a stay of proceedings in the meantime, upon the rule being afterwards discharged, it was holden that the defendant had the whole of the day on which the rule was disposed of to join the demurrer. (Vernon v. Hodgens, 4 Dowl. 654.) As to notice of inquiry, see infra, "Notice of Trial." As already noticed supra, 61, a demurrer may by leave be pleaded together with other pleas to the same part of the declaration. The practice as to the demurrer book will be as heretofore. It is made up by either party, and should contain only those parts of the pleadings to which the demurrer relates; and if any other part be inserted therein, the costs thereof will not be allowed on taxation either as between party and party or as between attorney and client. (R. H., 8 & 9 Geo. IV.) As to making up the issue, where there are issues in fact as well as in law, see" Issue," infra. Copies of demurrer book. By R. G., H. T., 2 Will. IV. r. 17, and R. G., June 12th, 1845, "four clear days (Sunday, however, being counted, unless it be the last) before the day appointed for argument, the plaintiff shall deliver copies of the demurrer book, special case or special verdict, to the Lord Chief Justice of the King's Bench or Common Pleas, or Lord Chief Baron, as the case may be, and the senior judge of the court in which the action is brought; and the defendant shall deliver copies to the other two judges of the court next in seniority; and in default thereof by either party, the other party may on the day following deliver such copies as ought to have been so delivered by the party making default; and the party making default shall not be heard until he shall have paid for such copies, or deposited with one of the masters (see 7 Will. IV. & 1 Vict. c. 30) a sufficient sum to pay for such copies." These books must be delivered the next day, to make the costs demandable from the defaulting party (Fisher v. Snow, 3 Dowl. 27); but if they are not all delivered by one or the other, in strictness the case may be struck out of the paper. It will be set down for argument, and argued in its turn. (See Chitty's Archb. ii. 833.) Under sect. 220, it would seem that there could now be an amendment even after the issues in court had been tried. (See Crucknell v. Trueman, 9 M. & W. 684.) The judgment was formerly interlocutory or final, in the same manner and in the same cases as a judgment by default; and therefore it is presumed (see sect. 36) that sects. 92-94 will apply in like manner. The successful party on demurrer is entitled to costs under 8 & 9 Will. III. c. 11, and 3 & 4 Will. IV. c. 47, s. 34; and the plaintiff would be so entitled, notwithstanding he afterwards enter a nol. pros. to the whole action, except these costs, or obtain rule to discontinue (Williams v. Vines, 6 Q. B. 355; Mayor, &c. of Macclesfield v. Gee, 13 M. & W. 470); and error might be brought, notwithstanding such discontinuance. X. JOINDER OF PARTIES. Connected with pleading is the law as to joinder of parties as plaintiffs or defendants, and which has long been in an unsatisfactory state for the ends of justice. The alterations effected by sects. 34-39 will go far to remedy the evils of the old law; but it must still be studied, as a mistake will have the same consequences as before, unless an amendment is made under some one of these sections. This law may be thus generally stated. In actions on contract the omission of a party as plaintiff who ought to be joined, or the joinder of a party who ought not to be joined, may be fatal to the action; so the joinder of a person as defendant who ought not to be joined is likewise fatal, whilst the omission of a party as defendant who ought to be joined can only be taken advantage of by a plea in abatement. In actions of tort a joinder of a party, who ought to be a co-plaintiff, can only be taken advantage of by a plea in abatement; and in such actions the joinder of persons who are not liable as defendants only entitles them to an acquittal, and the nonjoinder of persons jointly liable is of no consequence. (See Report, p. 9.) The commissioners proposed that in all cases the plaintiff or plaintiffs entitled should recover; but in lieu of this recommendation the following provisions were substituted. any der of plain 34. "It shall and may be lawful for the court or a Nonjoinder judge, at any time before the trial of any cause, to order and misjointhat any person or persons, not joined as plaintiff or tiffs may be plaintiffs in such cause, shall be so joined; or that amended 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 66 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." The application will be made to a judge at chambers by summons, or to the court for a rule nisi, upon affidavits showing such of the conditions as are requisite. The parties proposed to be added or struck out must themselves prove the requisite consent, either by appearing in person, or in writing, and although the act does not specify an affidavit to that effect, such affidavit could be imposed as a term of allowing the amendment. The affidavits should be intituled in the original cause until the amendment is actually made. The added plaintiffs will be liable to the costs from the commencement, but no provision is made as to the liability of a plaintiff who is struck out. Probably this would be considered in before trial. Nonjoinder and misjoinder of plaintiffs may be amended at the trial, as settling the terms, for many circumstances might make it reasonable that he should not be exempted from liability to the defendant for his costs already incurred. 35. "In case it shall appear at the trial of any action that there has been a misjoinder of plaintiffs, or that some person or persons not joined as plaintiff or plaintiffs ought to have been so joined, and "the defendant shall not, at or before the time of pleadunder 3 & 4 ing, have given notice in writing that he objects to such Will. 4, nonjoinder, specifying therein the name or names of such person or persons, c. 42. "such misjoinder or nonjoinder may be amended, as a "if it shall appear to such court, or judge, or other pre- "that the person or persons to be added as aforesaid "such amendment shall be made upon such terms as the court, or judge, or other presiding officer, 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 action." The practice as to amendments under this section will be governed by the decisions on 3 & 4 Will. IV. c. 42, s. 8. The amendment may be made at a trial in bar or nisi prius, or |