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Partnerships and firms not incorporated are now permitted CHAPTER to sue in the name of the partnership or firm. But the XXVI. defendant can obtain the names of the members at the time Partnerships when the cause of action accrued, by an application (m).

and firms.

Prima facie any person may be sued, and outlaws, aliens WHO MAY BE whose nation is at war with the Queen, and felons are not SUED. exempt from this liability though deprived of the right to Outlaws.

sue.

Prior to 33 & 34 Vict. c. 23, however, the conviction aliens, felons. of a felon worked a forfeiture of his property, and there was no object in suing him.

That act abolished forfeiture of property for felony, and at the same time provided for its custody and control by a representative during sentence, and gave a right to sue that representative.

Though an infant may be sued and will, under certain circumstances (n), be held liable on his contracts, yet this liability does not extend to bills of exchange (0).

A lunatic may be sued.

Service of the writ on his committee or on the person with whom he resides, or under whose care he is, will be sufficient, unless the Court or judge otherwise orders (p).

A lunatic appears personally or by attorney, but defends by his committee or guardian ad litem, and the plaintiff may, if necessary, apply to have the guardian appointed (g).

Since January 1, 1883, a married woman may be sued as if she were a feme sole, upon contracts in respect of and to the extent of her separate estate, without joinder of her husband as defendant (r).

(m) Ord. XLVIII. (a), R. S. C. 1891; and Ord. III. C. C. Rules, 1892, rr. 13 (a), 14 (a).

(n) See capacity of parties, ante, p. 67.

(0) In Belfast Banky. Doherty, ante, p. 69 (7), O'Brien and Fitzgerald, JJ., thought it might be a material allegation to the defence to aver that the original bill was not for necessaries; but this case seems within the Act of 1892, s. 5. In Bateman v. Kingston, 6 L. R. (Ir.), 328, Lawson, J., while holding void a bill given for a loan to be laid out in necessaries, considered there might be liability on a bill or note given for necessaries previously supplied. But see Code, s. 22 (2); and it has now been

declared by the Court of Appeal
that a bill given in payment for
necessaries is not a contract for
necessaries, and that an infant
is absolutely incapable of con-
tracting by bill or note, his only
liability, if any, being upon the
consideration. In re Soltykoff,
[1891] 1 Q. B. 413.

(p) Ord. IX. r. 5.
(4) Dan. Ch. Pr.

(r) Ord. XVI. r. 16; 45 & 46
Vict. c. 76, s. 1 (2).
As to pro-
ceedings under Ord. XIV. see
formerly Ortner v. Fitzgibbon,
50 L. J., Ch. 17; Durrant v.
Ricketts, 8 Q. B. D. 178; and
now Gunston v. Maynard, L. T.,
June 9th, 1883, p. 102. A form
of judgment is given in Scott v.
Morley, 20 Q. B. D. p. 132.

Infant cannot

be sued on

bill.

CHAPTER
XXVI.

JOINDER OF
DEFENDANTS,

Where defen

dant liable in

more than one capacity on same bill.

Corporations, partnerships and firms.

And when the person who would otherwise be the defendant is (1) dead, leaving a will, or (2) intestate, or (3) convicted of felony, in such case (1) his executor or (2) administrator, or (3) curator ad interim, or administrator, may be sued in his own name, but in his representative capacity.

By R. S. C. 1883, Ord. XVI. r. 4, all persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and judgment given against such one or more of the defendants as may be found liable accordingly, and without amendment. But a substantial, not a mere technical, satisfaction of the debt by any one will discharge all subsequent parties (s).

By r. 5 of the same Order, it is not necessary that each defendant should be interested as to all the relief prayed for; and by r. 6, the plaintiff may, at his option, join as parties to the same action all or any of the parties severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory note; while r. 7 provides for joinder of several defendants in cases of doubt. And r. 11 affords security against miscarriage of justice by reason of nonjoinder or misjoinder of defendants.

Formerly, if a party were liable on a bill in two or more capacities, he might be the object of several actions on the same bill at the suit of the same plaintiff. Thus, where a party was sued jointly with others, as a drawer, and separately as the acceptor, of a bill, the Court, considering him liable in the two characters, and the plaintiff entitled to both remedies which could not be comprised in the same declaration, refused to stay the proceedings in either as vexatious (t).

Under the above-mentioned rules as to parties, and the rules hereafter to be mentioned as to joinder of causes of action, one action would probably be deemed sufficient now to adjust the right of the parties.

Corporations aggregate, partnerships and firms are in the same position mutatis mutandis as to being sued as they are in respect of suing (u).

(*) See post, costs as damages; Windham v. Wither, 1 Stra. 515; Ex parte Wildman, 2 Ves. sen. p. 115.

(t) Wise v. Prowse, 9 Price, 393.

(u) Ante, pp. 81 and 406. The prudent course seems to be to

XXVI.

We have seen that the plaintiff may, at his option, join, CHAPTER as defendants, all or any of the parties liable to him on a bill or note. But even if he should not avail himself of THIRD this power in respect of some party to the bill who, though PARTIES. liable to the plaintiff as a principal, is liable to one of the defendants as co-surety for contribution, it may be desirable for such defendant to claim his remedy over against his co-surety on the bill, and so if the contract of suretyship arises collaterally to the bill (x). And so, too, a person whether liable to the plaintiff as a principal on the bill (y), or a stranger to the bill (2), may nevertheless be liable to a defendant for the whole amount which he may have to pay on the bill, by reason of a contract to indemnify such defendant as between themselves.

A

In each of these cases, there was, prior to the Judicature Acts, no less circuitous method for the original defendant than that of bringing a separate action against the person from whom he claimed contribution or indemnity. surety sued may now, however, by proper notice and other steps bring his co-surety to the trial as a third party, and complete justice may be done by one hearing and one judgment, giving effect to the rights of all parties. And so if the acceptor of a bill accepted for accommodation of the drawer should be sued by the holder in due course, he may be saved the circuity of suing the drawer against whom he has a claim for indemnity by making him a third party to the original action, and judgment may be given for the plaintiff against the defendant, and for the defendant against the third party (a). But the plaintiff is not to be

sue the partners nominatim if their names are known; if not, to sue the firm and apply under Ord. XLVIII. A, for disclosure of their names, and then amend the writ by inserting the names. See Munster v. Cox, 10 App. Cas. 680; 55 L. J., Q. B. 108; Code, s. 23 (2).

(x) Brittain v. Lloyd, 14 M. & W. 762; Lewis v. Campbell, 8 C. B. 541; Reynolds v. Wheeler, 10 C. B., N. S. 561; 30 L. J., C. P. 350.

(y) Batson v. King, 28 L. J., Ex. 327; 4 H. & N. 739.

(2) Wilder v. Dudlow, L. R., 19 Eq. 198.

(a) See Ord. XVI. rr. 48 et seq. It is to be observed, that the scope of the third party procedure was

materially contracted under the
Rules of the Supreme Court, 1883.
Under the wide terms of sect. 24,
sub-s. 3 of the Jud. Act, 1873,
the Rules of 1875 were so drawn
as to admit of any person being
made a third party against whom
the defendant claimed contribu-
tion or indemnity, or any other
remedy or relief over, or where
there was any question in the
action which it appeared desir-
able to settle, not only as between
the plaintiff and defendant, but
as between the defendant and
a third party. By the present
Rules, the right is restricted
to contribution and indemnity.
But whereas under the former
Rules a mere decision of the con-
troverted point was obtained,

CHAPTER

XXVI.

Fourth party.

JOINDER OF
CAUSES OF
ACTION.

embarrassed in his trial by the introduction of complicated issues between the defendant and a third party, and therefore the power is to be exercised subject to the discretion of the Court (b).

Though, if no such inconvenience is to be apprehended, the Court will sometimes, to avoid circuity, permit the third party to bring in yet another against whom he claims contribution or indemnity (c).

As to joinder of causes of action, we have already seen (d) that where a bill is dishonoured the holder has the option, and may deem it desirable, to sue upon the consideration as well as upon the bill.

In the Rules of Supreme Court, 1875, a form was provided (e) for a statement of claim on the bill, and also on the consideration.

But while under the Rules of 1883, any such form would now be bad for prolixity, and it is required (f) that in actions on bills of exchange, the Forms in Appendix C. Sect. 4, shall be imitated, yet a claim "on the consideration as a substantive ground of claim" is expressly recognized in Ord. XIX. r. 25, and it is conceived, there is nothing to prevent a claim on the consideration being joined (with appropriate brevity) to the claim on the bill, and if the claim on the consideration is a liquidated demand, represented by the sum claimable on the bill, it could be joined in the special indorsement under Ord. III., and the summary process under Ord. XIV. followed. If struck out [Ord. XIV. r. 1 (b)], the rest would not be invalidated. There might be a difficulty, however, as to the item for interest; see the judgment of Lord Coleridge, C..J., in Sheba Gold Mine Co. v. Trubshawe, [1892] 1 Q. B. 680.

And though, under the Bills of Exchange Act, 1855, no other claims but those on the bill and the consideration could be joined, yet, in the summary procedure, under Ords. III. and XIV., which now, in the High Court, supersedes that under the Bills of Exchange Act, 1855, there is no such restriction. So that, at present, any other demands,

so far as the third party was
concerned, power is now given in
the cases to which the procedure
is restricted to give judgment, for
the defendant against the third
party, in the original action.

With respect to County Courts,
see sect. 89 of the Jud. Act, 1873,

and C. C. R. 1889, Ord. XI.

(b) Wye Valley Rail. Co. v. Hawes, 16 Ch. D. 489.

(c) Witham v. Vane, 49 L. J., Ch. 242.

(d) Ante, p. 403.

(e) Appendix C., Form No. 7. (f) Ord. XIX. r. 5.

XXVI.

if they be liquidated, may be joined and recovered by the CHAPTER same summary process, unless leave is given to defend as hereafter mentioned. For, under the Supreme Court Rules (g), the plaintiff has the widest latitude in joining causes of action, subject, if he wishes to proceed summarily, to their being liquidated demands, and in all cases to the discretion of the Court as to whether they can conveniently be tried or disposed of together (h), and to certain considerations of convenience turning chiefly upon the particular class of persons concerned (¿).

The venue in actions on specialties, bills and notes, was VENUE, transitory, independent of the Judicature Acts and Rules, though subject to change, on special grounds, by the Court (k). But now all venues are transitory, except where otherwise provided by statute; and unless otherwise ordered by the Court or judge, the case will be tried in the county or place named by the plaintiff in the statement of claim or special indorsement, or where no statement of claim is delivered or required, in a notice to be served on the defendant (/).

The sole summary procedure now in force in the High SUMMARY Court as well for bills of exchange as other liquidated PROCEDURE. demands is under Ords. III. and XIV. It is a development of the system found so efficacious for enforcing negotiable instruments under Sir Henry Keating's Act, the Bills of Exchange Act, 1855; which was itself a modification of the summary procedure introduced a short time before by

(a) Ord. XVIII. r. 1. (h) Ibid.

() Ibid. rr. 2—6.

(k) Tidd's Practice, 604; Mondel v. Steele, 8 M. & W. 640.

(1) Ord. XXX. r. 2 ; XXXVI. r. 1. The plaintiff is thus no longer dominus litis. Failing

this, the venue is Middlesex. Ord. XX. r. 5. As to County Court venue, the rule is that the defendant is to be sued in the Court within the jurisdiction of which he lives or carries on business, though by leave the plaint may be entered in any other Court, within the jurisdiction of which defendant has lived or carried on business within six months, or any material part of the cause of action arose, such as

the acceptance, drawing, indorse.
ment, delivery of any of these,
the dishonour, or the receipt of
notice of dishonour (C. C. Act,
1888, 51 & 52 Vict. c. 43, s. 74).

In the Metropolitan County
Courts, if both plaintiff and
defendant live or carry on busi-
ness within the area, the plaint
may be entered where either of
them live or carry on business
(s. 84).

In the Mayor's Court, which is a Court of inferior jurisdiction (Mayor of London v. Cox, L. R., 2 H. L. 239), the whole cause of action must arise within the jurisdiction (Banque de Crédit v. De Gas, L. R., 6 C. P. 142; Wirth v. Austin, L. R., 10 C. P. 689).

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