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certain modifications in actions by or against partners, and also in actions against companies or corporations, or against unincorporated partnerships authorized to sue and be sued by a public officer, or against societies authorized to sue and be sued by trustees. (Vide infra.)

If a contract made by two or more persons is several as well as joint, the plaintiff may sue all of them (that is, all who are liable thereon) jointly, or any one of them separately (see O. XVI. r. 6, cited ante, p. 20; Lindley on Partnership, 6th ed., p. 292; Bullen & Leake, 3rd ed., p. 471; In re Davison, 13 Q. B. D. 50); or may in the same action claim against all of them jointly, and also, in the alternative, against each of them separately (Lindley on Partnership, supra; and see Ö. XVI. r. 4, cited ante, p. 20).

The question as to whether a contract is joint or several depends primarily on the language used, but is a question of intention to be determined by considering not only the language, but also the interests and relations of the parties. Accordingly, where the words are ambiguous, the contract will be construed to be joint or several so far as regards the contractees, according as the interests of the parties are joint or several respectively, and will be deemed to be joint if the interests are joint, and several if the interests are several. (See Bullen & Leake, 3rd ed., p. 471; Leake on Contracts, 3rd. ed., p. 380; Pugh v. Stringfield, 3 C. B. N. S. 2; 27 L. J. C. P. 34; Thompson v. Hakewill, 19 C. B. N. S. 713; Palmer v. Mallet, 36 Ch. D. 411; 57 L. J. Ch. 226; Whyte v. Tyndall, 13 App. Cas. 263.) It is doubtful, however, whether this applies also to cases where the question is as to whether the liability on a contract is joint or several. (See Whyte v. Tyndall, supra.)

Where the contract sued upon was made with several persons jointly, and some of them have died, the action should, in general, be brought by the survivors or survivor, and if all of them have died, by the executors or administrators of the last survivor. (See Lindley on Partnership, 6th ed., p. 297; Anderson v. Martindale, 1 East, 497; Richards v. Heather, 1 B. & Ald. 29; Jell v. Douglas, 4 B. & Ald. 374.) So, if the contract sued upon was made by several persons jointly, and any of them have died, the action should, in general, be brought against the survivors or survivor, or if all of them have died, against the executor or administrator of the last survivor. (See Lindley on Partnership, 6th ed., p. 298; 1 Wms. Saund. 1871 ed., p. 470; Richards v. Heather, supra; Jell v. Douglas, supra; Calder v. Rutherford, 3 B. & B. 302.) The executors of a deceased co-contractor should not be joined as co-defendants in an ordinary action against the survivor for debt or damages on a joint contract (Ib.; Kendall v. Hamilton, supra; In re Hodgson, 31 Ch. D. 177; 55 L. J. Ch. 241; Whyte v. Tyndall, supra), though the creditor in the case of a joint debt will have an equitable claim against the estate of the deceased co-contractor in administration proceedings (Ib.)..

The general rule requiring the joinder of parties jointly entitled to suc or liable to be sued on a joint contract does not apply to the case of persons who are authorized to sue or defend by a collective name or by a public officer, chairman or secretary, &c. (See Bullen & Leake, 3rd ed., p. 5, and the following references.)

As to actions against the police authorities for damage done by rioters, see 49 & 50 Vict. c. 38.

As to actions by and against societies and unincorporated associations authorized to sue and be sued by trustees, see "Societies," post, pp. 348, 350.

As to actions by and against unincorporated banks authorized to sue and be sued by a public officer, see " Bankers," post, p. 115.

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As to actions by and against incorporated companies and other corporations, see" Company," post, p. 182; "Corporation," post, p. 190.

As to actions by or against partners or joint contractors, where one of them has become bankrupt, see the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 113, 114, cited "Bankruptcy," post, p. 124.

As to parties in actions by and against carriers, see "Carriers," post, p. 169.

In actions against any of the members of partnerships acting as carriers by land "to recover damages for loss or injury to any parcel, package, or person," it is unnecessary to join the other partners. (See 11 Geo. IV. & 1 Will. IV. c. 68, s. 5, cited" Carriers," post, p. 667.)

See further as to joinder of parties in actions by or against partners, "Partners," post, pp. 304, 487.

Actions for wrongs arising out of contract (as to which, see ante, p. 2) are, as regards the persons whom it is necessary to join as parties, on the same footing as actions for breaches of contracts. (See Powell v. Layton, 2 B. & P. N. R. 365; Buddle v. Willson, 6 T. R. 369; 1 Wms. Saund., 1871 ed., pp. 471, 486; Bullen & Leake, 3rd ed., p. 708.)

In actions for wrongs independent of contract, where several persons are entitled to sue in respect of a wrong done to them jointly, as, for instance, in cases of injury to their joint property by trespass, conversion, negligence, &c., they should, in general, all join as plaintiffs in the action. (See Lindley on Partnership, 6th ed., p. 288, and 1 Wms. Saund., 1871 ed., p. 485; 2 Ib. p. 381; Bac. Abr. "Joint Tenants," K.; Addison v. Overend, 6 T. R. 766; Sedgworth v. Overend, 7 T. R. 279; Bloxam v. Hubbard, 5 East, 407.) But one of several co-owners of a patent may sue alone for an infringement of his right (Dunnicliff v. Mallet, 7 C. B. N. S. 209; 29 L. J. C. P. 70; Sheehan v. G. E. Ry. Co., 16 Ch. D. 59; 50 L. J. Ch. 68); and so may one of several co-owners of a trade mark (Dent v. Turpin, 2 J. & H. 139; 30 L. J. Ch. 495).

An action to recover land belonging to several joint owners should, in general, be brought in the names of all the joint owners. (See Mitchell v. Tarbutt, 5 T. R. 649, 651; 2 Wms. Saund., 1871 ed.,

p. 381.)

By the Judicature Act, 1873, s. 25 (5), a mortgagor entitled to the possession or receipt of the rents and profits of land is, in certain cases, enabled to sue in his own name as owner. (See "Mortgage," post, p. 303.) Where a wrong independent of contract has been committed by several persons jointly, their liability is, in its nature, several as well as joint (Co. Litt. 232 a; Sutton v. Clarke, 6 Taunt. 29; Pozzi v. Shipton, 8 A. & E. 963); and, accordingly, the person who has suffered the wrong is entitled, at his option, to sue them all jointly, or any one or more of them separately (see 1 Wms. Saund., 1871 ed., p. 472; Sutton v. Clarke, 6 Taunt. 29, 35; Mitchell v. Tarbutt, 5 T. R. 649; Ansell v. Waterhouse, 6 M. & S. 385; The Bernina, 12 P. D. at pp. 83, 93); and he may now, if he thinks fit, sue them all, or any two or more of them, jointly, and also may, by way of alternative claim, sue each or any of them separately (see O. XVI. r. 4, cited ante, p. 20).

The foregoing general rules as to the joinder of parties are subject, as above mentioned, to certain exceptions and modifications which have been introduced by the Judicature Acts and Rules and by other statutory enactments. (See ante, p. 21.)

By O. XVI. r. 8, "Trustees, executors, and administrators may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested in the trust or estate, and shall be considered as representing such persons; but the Court or a judge may, at

any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties."

This rule applies almost exclusively to such actions as are assigned to the Chancery Division. (See "Classification of Actions," ante, p. 2.) In actions such as are ordinarily brought in the Queen's Bench Division, trustees or executors (or administrators) in whom the legal ownership is vested are taken to represent the estate for all purposes, and it can rarely, if ever, be proper to join cestui que trustent or legatees as co-plaintiffs or co-defendants with them. The rule, however, may sometimes be applicable with regard to counterclaims for equitable relief in that Division. Provision is made by O. XVI. rr. 32-47, with respect to parties in actions for the administration or execution of trusts.

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As to parties in actions by or against executors or administrators, see further, Executors," post, pp. 200, 203; and see "Change of Parties," post, p. 30.

By O. XVI. r. 9, "Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the Court or a judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested."

This rule, which adopts the old Chancery practice, is sometimes applicable in actions in the Queen's Bench Division. Thus, in De Hart v. Stevenson, 1 Q. B. D. 313; 45 L. J. Q. B. 575, it was held that one co-owner of a ship might properly sue on behalf of himself and the other owners for freight, &c. due from the defendants for the use of the ship, and the Court refused an application by the defendant to have the other owners, who were numerous, added as co-plaintiffs.

One of the freehold or copyhold tenants of a manor may sue under this rule on behalf of himself and other tenants to establish rights of common. (See "Common," post, p. 376.)

So an action to establish certain customary rights was properly brought by three freemen on behalf of themselves and all other freemen. (Prestney V. Mayor of Colchester, 21 Ch. D. 111.)

As to actions by some of the members of clubs or voluntary associations on behalf of all the members, see Strickland v. Weldon, 28 Ch. D. 426; 52 L. T. 247; Harrington v. Abergavenny, W. N. 1887, p. 21; 3 Times Rep. 325; Howard v. Hill, W. N. 1887, p. 195.

A plaintiff suing on behalf of himself and other members of a class may except such of the other members as are not in the same interest, and may join them as defendants. (Fraser v. Cooper, 21 Ch. D. 718; 51 L. J. Ch. 575; Commissioners of Sewers v. Gellatly, 3 Ch. D. 610; 45 L. J. Ch. 788.) Such excepted persons, if not joined as defendants, may apply to be so joined. (Ib.) If a member of the class on behalf of which the plaintiff purports to sue disputes the plaintiff's right to represent the class and seeks to intervene in the action, he should apply by summons to be made a defendant, or, in an extreme case, to have the action stayed or to have the conduct of it taken from the plaintiff. (Watson v. Cave, 17 Ch. D. 19; Fraser v. Cooper, supra; May v. Newton, 34 Ch. D. 347; 56 L. J. Ch. 313.)

As to orders authorizing certain persons to represent a class as defendants, and the effect of judgments against the defendants in such cases, see Commissioners of Sewers v. Gellatly, supra; Watson v. Cave, supra; Howard v. Maitland, 11 Q. B. D. 695; May v. Newton, supra; Andrews v. Salmon, W. N. 1888, p. 102; Bray v. Gaudon, 85 L. T. 212; Temperton v. Russell, (1893) 1 Q. B. 435; 62 L. J. Q. B. 300; Wood v. McCarthy, (1893) 1 Q. B. 775; 62 L. J. Q. B. 373.

By O. XVI. r. 37, "In all cases of actions for the prevention of waste, or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest." "Waste," post, p. 531.)

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(See

As to parties in actions in which married women are plaintiffs or defendants, see O. XVI. r. 16; “ Husband and Wife," post, p. 219; “ Executors,” post, p. 203.

As to parties in actions by and against infants and lunatics, see O. XVI. r. 16; "Infant," post, p. 234; Lunatics," post, p. 280.

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As to the cases in which a cestui que trust or assignee may sue in the name of his trustee or assignor, or add him as a co-plaintiff, see next note, infra, where see also as to cases in which a party who in the ordinary course should be joined as a co-plaintiff may be added as a defendant.

As to the third party procedure in cases where a defendant claims contribution or indemnity over against a third party or a co-defendant, see O. XVI. rr. 48-55; "Third Party," post, p. 592.

As to parties to counterclaims, see Counterclaims," post, p. 575.

Action in name of wrong plaintiff.-Leave to add or substitute plaintiffs.] -By O. XVI. r. 2, "Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just." (See also the provisions of O. XVI. r. 11, below cited.)

The rule above cited only applies in cases of bonâ fide mistake (Clowes v. Hilliard, 4 Ch. D. 413, 415; 46 L. J. Ch. 271; see Emden v. Carte, 17 Ch. D. 169, 768; 51 L. J. Ch. 41); but a bona fide mistake of law may bring the case within the rule (Duckett v. Gover, 6 Ch. D. 82; 46 L. J. Ch. 407; Mason v. Harris, 11 Ch. D. 97; 48 L. J. Ch. 589; Gandy v. Gandy, infra; Carswell v. Hyland, 3 Times Rep. 708; Ayscough v. Bullar, 41 Ch. D. 341; 58 L. J. Ch. 474).

This rule is subject to the provision of O. XVI. r. 11 (below cited), which, except in some cases of persons under disabilities, declares that no person shall be added as a plaintiff without his written consent. (See Mason v. Harris, supra; Tryon v. National Prov. Institution, 16 Q. B. D. 678; 55 L. J. Q. B. 236; Gandy v. Gandy, 30 Ch. D. 57; 54 L. J. Ch. 1154; Besley v. Besley, 37 Ch. D. 648; 57 L. J. Ch. 464.) Thus, although in certain cases an assignee or cestui que trust may be entitled to sue in the name of another or to use the name of another as a co-plaintiff on offering him an indemnity (see Turquand v. Fearon, 4 Q. B. D. 280; 48 L. J. Q. B. 341; Gandy v. Gandy, supra), it seems that, after the action is brought, the name of a person who ought to have sued as plaintiff or co-plaintiff cannot be added without his written consent (see O. XVI. r. 11, cited pp. 20, 26; Mason v. Harris, 11 Ch. D. 97; 48 L. J. Ch. 589; Tryon v. v. National Prov. Institution, supra; Besley v. Besley, supra). The written consent of an agent on behalf of his principal is not sufficient. (Fricker v. Van Grutten, (1896) 2 Ch. 649.)

The difficulty arising from the impossibility of adding a plaintiff without his consent is, in a certain class of cases, usually dealt with in the Chancery Division, obviated by making the party a defendant to the action. Thus, where a minority of shareholders have been refused the use of the name of their company to enforce a claim in respect of misapplication of the funds of the company, the company has been made a defendant. (Silber Light Co. v. Silber, 12 Ch. D. 717; 48 L. J. Ch. 385.)

A similar procedure has been adopted where a co-trustee has by his personal conduct disabled himself from being a plaintiff jointly with his co-trustees. (Luke v. South Kensington Hotel Co., 11 C. D. 121; 48 L. J. Ch. 361; Meldrum v. Scorer, 56 L. T. 471.) See further as to this practice Luke v. Kensington Hotel Co., supra; Van Gelder v. Sowerby, 44 Ch. D. 374, 394; 59 L. J. Ch. 583; and Seton on Decrees.

The application under this rule should in general be made immediately upon discovery of the mistake, though there is power in a proper case to make an order thereunder at any time during the continuance of the action, or whilst any steps remain to be taken. (The Duke of Buccleuch, (1892) 2 P. 201; 61 L. J. P. 57.)

As to adding parties, see further the general provisions of O. XVI. r. 11, below cited; and as to adding parties where the title has been changed by death, bankruptcy, marriage or assignment, see O. XVII. rr. 1-4, cited post, pp. 30, 31; and House Property Co. v. Horse Nail Co., below cited.

Misjoinder and non-joinder of parties.]-Misjoinder of parties is where persons who ought not to have been joined as plaintiffs or defendants respectively have been so joined. Non-joinder of parties is where persons who ought to have been joined as plaintiffs or defendants respectively have not been so joined,

By O. XVI. r. 11, "No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.'

It would appear to be the duty of the Court under this section to prevent, as far as practicable, justice being defeated for want of parties (Van Gelder v. Sowerby Flour Society, 44 Ch. D. 374, 394; 59 L. J. Ch. 583; Moser v. Marsden, (1892) 1 Ch. 487, 490; 61 L. J. Ch. 319), and to adjudicate upon and settle, as far as practicable, all questions involved in the cause or matter (see Montgomery v. Foy, (1895) 2 Q. B. 321).

As to the power of adding plaintiffs on the plaintiff's application, see also the provisions of O. XVI. r. 2, above cited, and the observations thereon, supra.

Persons who have a distinct cause of action in respect of injury to the same premises from the same acts of the defendant may be added as plaintiffs. Thus, house-owners who sued for an injunction to restrain a temporary nuisance were allowed to add as co-plaintiffs two persons to whom they had demised the premises after action brought. (House Property Co. v. Horse Nail Co., 29 Ch. D. 190; 54 L. J. Ch. 715; and see O. XVII. rr. 1-4, cited post, p. 30.) The Court has not in general

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