plaintiff delivered a statement of claim claiming on the bill, and also on goods alleged to have been the consideration given by F. for the bill. The late Master of the Rolls had no doubt that if twenty people were hurt in a railway collision they could not combine to sue the railway company in one action. In the same case, Appleton v. Chapelton's Paper Company (45 L. J. Ch. 276), he decided that two owners of distinct properties could not be joined as plaintiffs in a writ to restrain a nuisance. In Smith v. Richardson, supra, the Court intimated that "Order XVI., dealing with parties, assumes an ascertained subject-matter. Order XVII. (now XVIII.), dealing with subject-matter, assumes ascertained parties. There must therefore either be identity of subject-matter, in which case Order XVI. gives ample liberty in the choice of parties, or identity of parties, in which case Order XVII. (now XVIII.) gives a like liberty in the choice of subject-matter." One of several co-owners of a patent has a right to sue alone for the recovery of profits due for the use of the patent: Sheehan v. Great Eastern Railway Company (16 Ch. Div. 59), and an objection that other persons should have been joined as plaintiffs should be made promptly, and may not be postponed till the hearing, where no impediment exists to raising the objection at once: Ibid. sentative plaintiffs. While on the subject of who may properly be joined as plaintiffs, attention should be called to rule 9 of Order XVI., which provides that "where there are numerous parties having the same interest in one action, one or more of such parties may sue. . . . on behalf or for the benefit of all parties so Repreinterested;" and on this rule it has been held in De Harte v. Stevenson (L. R. 1 Q. B. D. 313; 45 L. J. Q. B. 575; 24 W. R. 367), that where the plaintiff sued on behalf of himself and the other owners of a ship for freight and dues for the ship, the Court would not on the application of the defendants order the other parties interested to be joined as plaintiffs in order that the defendants might gain the advantage of the other plaintiffs' liability for costs, although in a proper case it might order security to be given for costs. If there is a member of the plaintiffs' class who dissents from the plaintiffs' course of action, he should be joined as a co Who may be made defend ants. Honduras, Sc., Ry. Co. v. Le fevre and Tucker. defendant: Wilson v. Church (9 Ch. Div. 552; 39 L. T. 413; 26 W. R. 735; Fraser v. Cooper, 21 Ch. Div. 718). Coming next to the question, who may be joined as defendants in the same action, we start with rule 4 of Order XVI., to which attention has already been called. "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 may be given against such one or more of the defendants as may be found liable according to their respective liabilities without any amendment." Rule 5 follows this rule, enlarges the power of joining defendants given by rule 4, and emphasises the change in the law made by it. "It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the Court or a judge may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest." Rule 6, which follows on rule 5, does not seem to enlarge the powers given by rule 4. It says, "The plaintiff may at his option join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes." What is the effect of these three rules? There have been several decisions which have made the meaning of the rules reasonably clear, so far at least as regards the liability of persons to be joined as defendants against whom relief is sought in the alternative. The first case is the Honduras Inter-Oceanic Railway Company v. Lefevre and Tucker (L. R. 2 Ex. D. 301; 46 L. J. Ex. 391; 36 L. T. 46; 25 W. R. 310). The decision really turned upon rule 7 and rule 13 (now 11) of Order XVI., to be presently dealt with, but it is referred to here because some remarks of Cockburn, C.J., upon rule 4, for the time seemed to limit the generality of the powers given by that rule. The facts briefly were these:-Tucker, professing to act as Lefevre's agent, had contracted to take a certain number of debentures in the plaintiffs' company, which contract Lefevre had failed to perform, and the plaintiffs then brought their action against him claiming specific performance or damages. Subsequently Appeal. the plaintiffs obtained leave under Order XVI. r. 13 (now 11), to add Tucker as a defendant, and they amended their statement of claim, which then stood as a claim against Lefevre for specific performance or damages, or in the alternative if it should appear that Tucker had no authority to act as Lefevre's agent, then for specific performance and damages against Tucker. The defendant Tucker applied to have his name struck out of the record, and on appeal from the Divisional Court, which refused the application, the case came to the Court of Appeal. The decision of the Court was that the case Decision of came under rule 7, which empowers a plaintiff, when in doubt Court of as to the person from whom he is entitled to relief, to apply to the Court to join two or more defendants to the intent that in such action the question as to which, if any, of the defendants is liable and to what extent, may be deter:nined as between all parties to the action, and the appeal was accordingly dismissed. But, in giving judgment, Cockburn, C.J., said, "It is not necessary to decide whether the case falls within the 4th rule of Order XVI. My impression is that it does not, but that that rule is confined to cases in which a plaintiff has a right of action at his option against either of two parties, as, for instance, against a principal debtor and his surety." That the rule goes so far as suggested by the Lord Chief Justice there is no doubt; but the more recent case of Child v. Stenning and Wagner (L. R. 5 Chan. D. 695; 46 L. J. Ch. 523; 36 L. T. 426; 25 W. R. 519) in the Court of Appeal, decides that it goes much further. In that case the plaintiff Child had obtained a lease of a child v. piece of land from the defendant Wagner. The other defendant, Stenning. Stenning, trespassed on the piece of land in question, and to an action brought against him alone he pleaded that he had a right of way over the locus in quo granted to him by Wagner by a deed prior in date to the lease to Child. The plaintiff thereupon amended his writ, making for the first time Wagner a party to the action, and his claim then was for an injunction. and damages against Stenning, or in the alternative damages against Wagner for breach of his covenant for quiet enjoyment. The defendant Wagner demurred to the claim thus stated, on the ground that the claim sought alternative and inconsistent relief against the defendants, and this demurrer was allowed by Judgment of the Master of the Rolls. Hall, V.-C. The case came on appeal to the Court of Appeal, and the decision in the Court below was reversed. In giving judgment the Master of the Rolls said, “With all deference to the Vice-Chancellor, I am of opinion that the obvious meaning of the Rules is that the plaintiff was to bring the action in the form in which he has brought it. The plaintiff had obtained a lease of a piece of land from the defendant Wagner. The defendant Stenning claims to be tenant from year to year under Wagner of a certain right over part of the land. The plaintiff disputes the claim of Stenning under Wagner, and says that he is a mere trespasser, and that if he is a trespasser he is entitled to relief by injunction and damages for past injury; and he further says that if he is tenant under Wagner, he has incurred damage by Wagner's act, and he claims damages against him under his covenant for quiet enjoyment. He also says that it is more convenient to try both questions in one action, and so he will get a complete remedy either against Wagner or against Stenning, in which latter case he would have to pay Wagner's costs. On the other hand, if there were to be two actions, he might fail in both; for in the action against Stenning, Stenning might prove that he had a title under Wagner, and in the action against Wagner, Wagner might prove that he had no title, but was a mere trespasser. It appears to me that this was just the mischief that was provided against by the 3rd (now the 4th) rule of Order XVI. This is a case of alternative relief, and although in some cases a difficulty may arise by reason of there being different causes of action, that is provided for by the 1st rule of Order XVII., which is, that if it appears to the Court or a judge that any such causes of action cannot be conveniently tried or disposed of together, the Court or a judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof' (see now Order XVIII. r. 9). But the present case appears to be one in which both claims ought to be tried together in the presence of both Wagner and Stenning." It is submitted that the result of this judgment is not that different causes of action, in the sense of subject-matters of litigation, can be joined against different defendants in the same action; and for such a proposition there is no authority, unless indeed Booth v. Briscoe be one. The result of the judgment. is rather that where you have a given subject-matter of litigation you may join as defendants to an action brought with reference to it as many persons as you please, provided you can allege that you are entitled to some relief or the possibility of some relief, though only in the alternative, against each one of them; and it makes no matter though in setting out your case against all these defendants you disclose different and inconsistent causes of action, in the sense of forms of action, against some of them. Cf. Bagot v. Easton (7 Ch. Div. 1 ; 47 L. J. Ch. 225; 37 L. T. 369; 26 W. R. 66). The cases already quoted are authorities on the meaning of the clause in rule 4, "or in the alternative." There is no authority upon the meaning of the words "jointly, severally" but as already stated in other words, the meaning of rule 4 and its accessories, rules 5 and 6, taken along with rule 1, may be illustrated thus. Given a particular subjectmatter of litigation and several plaintiffs who allege they have rights with reference to it, and several defendants who are alleged to be liable to them in this transaction; in such a state of facts any one of the plaintiffs, or any number less than all, or all of the plaintiffs, can make any claim he or they has or have arising out of the given subject-matter of litigation against each individual defendant, or against all the defendants taken together, or against any one or more of them in the alternative. 2nd. The right which a defendant has along with his defence to join new parties to the action. This right of a defendant is discussed further in another place (Chapter II., pages 80 to 82, post), to which the reader is referred. Right of defendant joining an limited to other as defendant counter r. 13. 3rd. The right which either party has during the progress of to a the action of applying to the Court for leave to add, substitute, or claim. strike out parties, and the power of the Court to grant or refuse such application.-Rule 11 of Order XVI. declares that "no Order XVI. action shall be defeated by reason of the misjoinder of parties;' and provides for any necessary parties being added to the record. Upon the corresponding rule of 1875 it was held that a demurrer for want of parties will not lie. The proper course is to take out a summons, asking that persons named may be added as parties. (Werderman v. Société Générale d'Électricité, |