indirectly affected by the management, capital, or other property of the company. (Twycross v. Grant, 2 C. P. D. 469, now under appeal to the House of Lords; Cornell v. Hay, L. R. 8 C. P. 328); but not it seems to contracts by which the promoters themselves acquire property which they afterwards sell to the company, if such contracts in no way affect the company itself. (Craig v. Phillips, 3 Ch. D. 722; Gover's Case, 20 Eq. 114, 5 Ch. D. 118.) 2. The words promoter, director, or trustee include persons engaged in forming the company, or engaged in inducing the public to take shares in it when formed (Twycross v. Grant, supra); but not persons who are not so engaged when the contract with them is entered into, even although they afterwards became directors. (Gover's Case, 1 Ch. D. 182 & 20 Eq. 114. Sed quære, see 5 Ch. D. 118.) 3. A person who takes shares on the faith of a prospectus not complying with the enactment in question, is not entitled, simply on that ground, to rescind his contract to take the shares (ib.), but is only entitled to maintain an action for damages against the promoters, directors, or trustees who knowingly issued the prospectus. (Ib., and Twycross v. Grant, supra.)

Page 530.-Claim by Landlord against Tenant for Recovery of Demised Premises at end of the Tenancy.

1. On the day of the plaintiff let to the defendant a house, No. 52, Street, in the city of London, as tenant from year to year, at the yearly rent of £120, payable quarterly, the tenancy to commence on the 2. The defendant took until the day of

given.

day of

possession of the house and continued tenant thereof last, when the tenancy determined by a notice duly

3. The defendant has disregarded the notice, and still retains possession of the house.

The plaintiff claims :

(1.) Possession of the said house.

(2.) £

for mesne profits from the

day of

Statement of Defence and Counter-claim.

day of

1. Before the determination of the tenancy mentioned in the statement of claim, the plaintiff A. B. by writing, dated the and signed by him, agreed to grant to the defendant C. D. a lease of the house mentioned in the statement of claim, at the yearly rent of £150 for the term of 21 years, commencing from the day of , when the defendant C. D.'s tenancy from year to year determined, and the defendant has since that date been and still is in possession of the house under the said agreement.

By way of counter-claim the defendant

2. Repeats the allegations contained in the statement of defence herein, and claims to have the said agreement specifically performed and to have a lease granted to him accordingly, and for the purpose aforesaid, to have this action transferred to the Chancery Division.

PLEADING

UNDER

THE JUDICATURE ACTS.

CHAPTER I.

PARTIES TO PLEADINGS.

to the pleader of

rules as to

UNDER the new practice the subject of parties has become Importance one of increased importance to the pleader. This is in consequence of the additional latitude allowed in joining parties at the commencement of the action and the greater modifications parties. permitted during its progress. It is true that in not a few instances before the case comes before the pleader, the parties to the action have been selected, and their names already appear on the writ. Still, in such a case, as in every other, a preliminary question presses upon the pleader before he proceeds to settle the exact form and wording of his pleading, viz., Are the parties in this action properly joined, so as to enable my client most advantageously to present his case to the Court and obtain the greatest possible amount of relief? If any error has been committed in the joining of the parties, it is his place to have it immediately rectified, for which, as will be seen, there is now provision at almost any stage of the action.

It is proposed in this place to draw attention to the principal rules now prevailing on the subject of parties-not to deal with the question who are the proper parties in any given kind of action, as whether husband and wife should sue together in such a case, or the husband alone-but assuming that a particular subject-matter of action is obtained, to indicate what classes of persons may sue as plaintiffs or be sued as defendants, and when and how any modifications in the parties to the action may be obtained during the progress of the suit.

B

Outline of

chapter.

Persons claiming jointly, severally,

or alternatively.

It is thought that the subject will be best considered with reference to

1st. The absolute right which a plaintiff has at the initiation of the action to join parties to the suit.

2nd. The absolute right which a defendant has along with his defence to join new parties to the action.

3rd. The right which either party has during the progress of the action to apply to the Court for leave to add, substitute, or strike out parties, and the power of the Court to grant or refuse such application.

The absolute right of the plaintiff at the initiation of the suit to join parties.-This right extends to the selection of proper plaintiffs as well as proper defendants, so that the first question is-Who can properly be joined together as plaintiffs in the same action? Turning to Order XVI. r. 1, we find that "all persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist"-so far there is no enlargement of the right of joining parties, for under the old system the mere number of the plaintiffs was no objection provided they all sued jointly in respect of a joint cause of action. But the rule goes further: "All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative." These words are of a most sweeping and comprehensive character. That they give a right of joining parties as plaintiffs far in excess of anything allowed under the old system is clear; but what limit is now left upon the plaintiff's right is by no means so clear.

Analysing this rule carefully, it will be seen that several plaintiffs have a right to sue together in three cases. There is the case where they all have a joint claim against the defendant or defendants, as where they are joint promisees on a contract, or joint covenantees in a bond, or when, being traders, they have been jointly slandered in the way of their trade. In all these cases, and many others of the like kind, there is no "Jointly." difficulty. Under the old system they might have sued together in respect of this joint cause of action, and the rule merely in terms preserves this right. But the rule goes beyond this. For the moment passing over the word "severally," it says that all persons may be joined as plaintiffs in whom a right to relief is alleged to exist" in the alternative."

alterna

former and

trated

Before the Judicature Acts neither at law nor equity was it "In the permitted to several plaintiffs to come into Court, and in effect tive." say, "some one or other of us is entitled to sue, if one of us is Difference not, then the others are, or if the others are not, then the first between mentioned is." The rule was rigorously enforced that every present plaintiff suing must allege that he, in conjunction with the rule illus other plaintiffs, had a right of action against the defendant; and the effect of this in not a few cases was to produce considerable and agent. hardship. It not unfrequently happens in practice that it is a matter of the greatest doubt which one of two or three persons is entitled to sue on a particular contract or for a particular injury, although there is no doubt that the defendant is liable to some one or other of them. Take the case of a sale by an agent. There may very well arise a difficulty as to whether the agent or his principal should sue. It is certain the defendant is liable on the contract, but to whom? If he is not liable to the agent, he is to the principal, and vice versû, but not to both. Now in such a case the principal and agent could not join as plaintiffs in the same action, and setting out the facts claim relief alternatively, that is to say, if the principal shall be held not entitled to recover, that the agent might recover, or the converse. The only thing to be done was for one of the two to risk an action, when he was liable to be met with the defence that it was the other who was entitled to sue, and if this defence succeeded, then there was nothing for it but for the other to sue, when he in turn might be met with the defence that he was not entitled, but the plaintiff in the first action. And this result could very well be brought about, that for one matter you might have two actions and a different result in each on the same point.

The rule of the new practice under consideration would seem to remedy such a state of things, and in the case supposed permit the agent and principal to sue together and claim relief alternatively. The case first supposed of the principal and agent suing together when there is a doubt as to which is entitled to sue, is only one of many cases where a like difficulty has arisen, and is likely to arise again. For instance, there is frequently a doubt Bailor and as to whether the bailor or bailee of particular goods is entitled bailee. Consignor to sue for an injury to them; again, there may arise a difficulty and consignee, &c., as to whether a consignor or consignee of goods delivered to a &c.

"Severally."

Booth v.
Briscoe.

carrier is the right party to sue; so whether the heir or a devisee should sue; so in the case to be found at pages 569-570, post, where there is a subject-matter, and parties have different conflicting interests in it, and a trespass has been committed with reference to it, the question arises, who can sue. The new rule meets this difficulty by in effect saying, "Join both or all the parties who seem to have a right to sue, and then you can claim that they are all entitled to recover, or you can claim that in the alternative if one does not succeed the other or others may, or you may claim that each plaintiff severally may obtain some relief."

So far there is no great difficulty in determining what the rights are which rule 1 of Order XVI. gives of joining plaintiff's;. but there is still a word in the rule the interpretation of which is by no means easy. "All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist,. whether jointly, severally, or in the alternative." The ques-tion is, what enlarged powers of joining plaintiffs are conferred by the word "severally?" One reading of the rule upon the point. is, that it enables any number of plaintiffs to join together, and combine in the same action their several and distinct causes. of action against a defendant or defendants; and it must be admitted that this construction seems to be supported by high authority. In fact this seems to be the considered judgment of the Court of Appeal in the case of Booth v. Briscoe (L. R. 2 Q. B. D. 496).

In this case the plaintiffs were the eight trustees of certain charities at Outwell, and they brought an action against the defendant, who was rector of Outwell, for a libel published by him in a newspaper, commenting on the improper management of the charities "by the trustees." At the trial the jury gave a verdict for the plaintiffs, with 40s. damages. The Queen's Bench refused a new trial, moved for on the ground that the verdict was against the weight of evidence, and the defendant appealed. No question was raised by the defendant's counsel either before the Queen's Bench or the Court of Appeal as to the right of the eight plaintiffs to sue together; but during the argument in the latter Court, Bramwell, L. J., raised the difficulty himself, and the Court took time to consider the point. Judgment was subsequently delivered by Bramwell, L. J., who,