out as plaintiffs, the Court may possibly in certain cases, as where the Statute of Limitations would be a bar to a fresh action, allow an amendment to be made independently of this section: see 2 Ch. Pr. 12th ed. p. 1563. at trial. 86. In case it shall appear at the trial of any action that Amendment there has been a misjoinder of plaintiffs, or that some person 15 & 16 Viet. or persons not joined as plaintiff or plaintiffs ought to have c. 76, s. 35. been so joined, and the defendant shall not at or before the time of pleading have given notice in writing that he objects to such misjoinder or nonjoinder, specifying therein the name or names of such person or persons, such misjoinder or nonjoinder may be amended by the Court or the Judge or presiding officer at the trial, by an order endorsed on the abstract of nisi prius or writ of inquiry, signed by any member of the Court, or by the said Judge or officer, if it shall appear to such Court, Judge, or officer that such misjoinder or nonjoinder was not for the purpose of obtaining an undue advantage, and that injustice will not be done by such amendment, and that the person or persons to be added consent, either in person or by writing under his, her, or their hand or hands, to be so joined, or that the person or persons to be struck out were originally introduced without his, her, or their consent, or that such person or persons consent in manner aforesaid to be so struck out in the manner aforesaid; and such amendment shall be made upon such terms as the Court, Judge, or officer shall think proper; and when any such amendment shall be made the liability of any person or persons who shall be added as a co-plaintiff or co-plaintiff's shall, subject to any order to the contrary, be the same as if such person or persons had been originally joined in such action (d). (d) Under this section the misjoinder or nonjoinder of a plaintiff or de- Appeal from fendant may be amended at the trial in the manner pointed out. There Judge's decision. appears to be some doubt whether the discretion of a Judge at Nisi Prius in allowing or refusing an amendment of this description can be reviewed by the Court (Tennyson v. O'Brien, E. & B. 497). In Holden v. Ballantyne, 29 L. J. Q. B. 148, 149, it was laid down, that if the Judge allows an amendment, the Court by virtue of the power which is inherent in it over its own proceedings will review his decision; but if he refuses to make the amendment, the Court cannot interfere. In that case the Judge at the trial had refused to amend a misjoinder of defendants, and the Court refused to rescind his decision. On the other hand, in cases where the power of amendment is derived under the 231st section, it has been frequently held that, although the Court will be slow to interfere with the Judge's discretion, it yet has power to do so when any real injury has been done by either his refusal to allow an amendment or his granting leave for Terms of that purpose in cases where leave should not have been given (Brennan v. Howard, 1 H. & N. 138; Davis v. Reeves, 5 Ir. C. L. R. 533, 535). And in such cases where the Judge refuses to amend, there is nothing to preclude the party aggrieved from making a substantive application to the Court for leave to amend (Wilkin v. Reed, 15 C. B. 192, 200). It may, however, be doubted whether the Court possesses the power to amend in this manner a misjoinder or nonjoinder of parties (Robson v. Doyle, 3 E. & B., 396). In Crawford v. Cocks, 6 Ex. 287, the Court under the circumstances of the case allowed the plaintiff, who had been nonsuited, to amend by striking out the names of two of the defendants, and directed a new trial. The terms on which the amendment will be allowed are in the discretion amendment. of the Judge at the trial, and his decision upon the point will not in general be reviewed by the Court (Tomlinson v. Bollard, 4 Q. B. 642). The amendment ought to be made, so that no additional expense be thrown on the defendant; and if the defendant pays at once the sum claimed under the amended summons or plaint, and it appears that he never contested the plaintiff's right thereto, he will be entitled to his costs from the time he might have paid money into Court; secus if he defends the action (Smith v. Brandram, 2 M. & G. 250). When amendment is to be made. Upon notice amended. 15 & 16 Vict. c. 76, s 36. When an application is made at the trial to amend a misjoinder or nonjoinder of plaintiffs, the power of the Judge is derived under this section, and not under section 231, post. The application should therefore be made and disposed of at the trial, i. e. before verdict, and not afterwards (Robson v. Doyle, 3 E. & B. 396; Holden v. Ballantyne, 29 L. J. Q. B. 148; Wickens Steele, 2 C. B. N. S. 488). As to what amendment will be allowed see supra, note (e). 87. In case such notice be given by the defendant of the of nonjoin- nonjoinder of a person as co-plaintiff, the plaintiff shall be at der of plaintiffs, proceed- liberty to enter a side-bar order, to amend the summons and ings may be plaint, and other proceedings, by adding the name or names of the person or persons named in such notice, and to proceed in the action, on payment of the costs of and occasioned by such amendment only; and in such case the defendant shall be at liberty to plead de novo when he has pleaded already, and shall have four days from the service of the notice of such amendment for the purpose of pleading as aforesaid (e). How amend ment made. (e) When an amendment is made under this section, the plaintiff must file a consent in writing of the party or parties whose name or names is, or are to be, added, together with an affidavit of the handwriting, and give notice thereof to the defendant, unless the filing of such consent be dispensed with by order of the Court or a Judge; 41st G. O. 1854. The payment of the costs of, and occasioned by, the amendment being made a condition precedent to the amendment, the plaintiff should have the defendant's costs taxed, and pay or tender them to the defendant, otherwise his proceeding in the action would be irrregular (Levy v. Drew, 5 D. & L. 307). when non defendant objected to. 3&4 Vict. c. 105, s. 37. 88. Upon any objection for nonjoinder of a defendant being Proceedings taken by plea of abatement (f), or by motion to the Court joinder of in consequence of such nonjoinder, it shall be competent to the plaintiff to show that such person so omitted is not a necessary party, or is not resident within the jurisdiction of the Court (g), or has been discharged by bankruptcy or insolvency, or that the Statute of Limitations would be a bar to any action against him. 3 & 4 Wm. 4, c. 42, ss. 8, 9. (f) A plea in abatement for nonjoinder of a party cannot be filed without What plea in the leave of the Court, section 84, ante. The plea in such a case, if leave to abatement plead it be given, should mention the names of all the persons who have should state. not been joined, so that the plaintiff may have a better writ. And if, therefore, upon an issue taken upon a plea in abatement it appears that others besides those named in the plea were also co-contractors the plaintiff is entitled to a verdict (Crellin v. Calvert, 14 M. & W. 11). It should also aver that they are still living. By the provisions of the above section, moreover, the plea cannot be successfully pleaded if the person so omitted is not resident within the jurisdiction, or has been discharged by bankruptcy or insolvency, or if the statute of limitations would be a bar to an action against him; and where there are several joint contractors it will be a good answer to the plea to show that one of the joint contractors is resident out of the jurisdicdiction (Jo'l v. Curson, 4 C. B. 249). Under 3 & 4 Vict. c. 105, s. 37, the affidavit verifying the plea should have stated the residence of the party omitted. The section in question has, however, been repealed by the present Act. By 11 G. 4, & 1 W. 4, c. 68, s. 5, in an action against a coach proprietor or common carrier for loss or injury to any parcel, package, or person, no plea in abatement can be filed for the nonjoinder of a co-proprietor. A plea in abatement for nonjoinder must be verified by affidavit pur- Must be suant to 6 Anne, c. 10, s. 11 Ir.; and by the 44th G. O. 1854, the verified. affidavit must be annexed to the pleading and entitled in the cause. The whole matter of the plea must be verified by the affidavit (Odell v. Raymond, 2 Fox & Sm. 214) and in case the plea is not verified in the proper manner the plaintiff may apply to the Court for leave to mark judgment (Coleman v. Grady, Smythe, 155). A plea in abatement of the coverture of the defendant is not, it would Plea of coappear, a plea in abatement for nonjoinder within the meaning of the above verture. section (Jones v. Smith, 3 M. & W. 526). It may, therefore, be pleaded without leave, but it must be verified pursuant to the 6th Anne, c. 10, s. 11, Ir. Such a plea must, moreover, be pleaded by a married woman in person, as she cannot appoint an attorney (Bergin v. Burke, 4 Ir. C. L. R. 90). If the defendant applies for leave to plead a plea in abatement of the nonjoinder of a party as a defendant, it will in general be prudent for the plaintiff to amend pursuant to the next section, see note (y), p. 89, supra, and it will be also observed that if the plaintiff takes issue upon such a plea, and the plea is proved, there can be no amendment at the trial, inasmuch as there is no provision in the Act authorising an amendment of a nonjoinder of defendants at the trial (Garrard v. Giubelei, 11 C. B., N. S. 616; 13 C. B., N. S. 832). What is a residence. Upon notice of nonjoinder of defendants proceedings may be amended. c. 76, s. 38. (g) If the party omitted be within the jurisdiction, merely for a temporary purpose, and is not actually residing in it, the nonjoinder cannot be pleaded in abatement; and, on the other hand, the nonjoinder may be pleaded if the party be absent abroad for a merely temporary purpose. The word residence is to be understood as meaning the domicile or home of the party (Lambe v. Smythe, 15 M. & W. 433). 89. In any action on contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been objected to by notice or plea of abatement, the plaintiff shall be at liberty to enter a side-bar order to amend the writ of 15 & 16 Vict. summons and plaint by adding the name or names of the person or persons named in such notice as joint contractors (h), and to serve the amended writ upon the person or persons so named in such notice (i), and to proceed against the original defendant or defendants, and the person or persons so named in such notice, provided that the date of such amendment shall, as between the person or persons so named in such notice and the plaintiff, be considered for all purposes as the commencement of the action (j). How amendment to be made. Position of the defendant added pursuant to notice. Subsequent against the persons named in a notice for nonjoinder of defend (h) The plaintiff need not adopt this course unless he wishes to do so; if, however, he does not, leave will be given to the defendant to plead in abatement (Donegan v. Lyons, Ir. R. 1 C. L. 323). (i) If the writ has been filed before amendment, it cannot be taken off the file for the purpose of serving the defendants added by amendment, and the side-bar order giving leave to amend should provide that service of an attested copy of the writ as amended upon the parties named should be deemed good service (Conolly v. Evans, 7 Ir. Jur. O. S. 182). (j) When the summons and plaint is amended under this section by adding a new defendant, the defendant so named may stay proceedings against himself by payment of the debt and costs within six days of the service upon him, pursuant to the 7 G. O. 1854 (Measom v. Mountcastle, 1 F. & F. 721); and it would appear that the payment will operate to stay all proceedings in the action. 90. In all cases after such notice of objection or plea in proceedings abatement in respect of the nonjoinder of a party as defendant, and amendment in pursuance thereof, if it shall appear upon the trial of the action that the person or persons so named in such notice was or were jointly liable with the original defendant or defendants, the original defendant or 15 & 16 Vict. defendants shall be entitled, as against the plaintiff, to the costs of such notice and amendment; but if at such trial it shall appear that the original defendant or any of the original defendants is or are liable, but that one or more of the persons named in such notice is or are not liable as a contracting ant. c. 76, s. 39. party or parties, the plaintiff shall nevertheless be entitled to judgment against the other defendant or defendants who shall appear to be liable, and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same, together with the costs of the notice and amendment, as costs in the cause against the original defendant or defendants who shall have so objected to the nonjoinder of such person provided always, that any such defendant who shall have so objected shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such notice (). be borne. (k) See as to the construction of this section, Cazneauv. Morrice and others, How costs to 25 L. J. Q B. 126. In that case the plaintiff added two new defendants after a plea in abatement had been pleaded. The original defendant thereupon paid a sum of money into Court in full of the plaintiff's demand, and the new defendants pleaded never indebted. The jury found that the sum paid in was sufficient, and that the new defendants were jointly liable with the original defendant, and it was held that the original defendant was entitled to the costs of the plea in abatement and of the amendment, and also to the general costs of the cause and of the trial; and further, that the plaintiff was not entitled to any costs as against the new defendants. 91. It shall be lawful for the Court or a Judge in the case of the joinder of too many defendants in any action on contract (1), at any time before the trial, to order that the name or names of one or more of such defendants be struck out, if it shall appear to such Court or Judge that injustice will not be done by such amendment; and the amendment shall be made upon such terms as the Court or Judge by whom such amendment is made shall think proper (m);, and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended, as a variance, at the trial, in like manner as the misjoinder of plaintiffs has been herein-before authorized to be amended, and upon such terms as the Court, or Judge or other presiding oflicer, by whom such amendment is made, shall think proper (n). (1) Under this section the misjoinder of defendants in an action of contract may be amended. No provision is made for a misjoinder of defendants in an action of tort, inasmuch as such a misjoinder was not fatal previous to the passing of the Act. In such cases it is open to the plaintiff to enter a nolle prosequi as to a defendant wrongly joined at any time before the trial, and if a misjoinder of defendants in an action of tort appears at the trial the only result would be that the party wrongly joined would be entitled to a verdict, while the plaintiff, on the other hand, would be entitled to a verdict Misjoinder ants may of defend be amended the trial. c. 76, s. 37. Misjoinder of defendants in an action of tort. |