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Amending nonjoinder

of defend

ant.

Striking out the name of a defendant.

When allowed.

against the other defendants. In Thompson v. Kelly, 12 Ir. C. L. R. Ap. 50, where the action was brought for trespass against several defendants, one of whom had not been served, the plaintiff was allowed to amend his summons and plaint by striking out the name of the defendant, on whom the writ had not been served.

There is no provision in the statute as to amending a nonjoinder of a defendant at the trial, and such a defect cannot be amended (Garrard v. Giubelei, 11 C. B. N. S. 616; 13 C. B. N. S. 832). In one case, however, where the person served and sued was so served and sued through mistake for another, the Judge at the trial allowed a verdict to be entered up against the person intended to be sued, on the ground, apparently, that the mistake only amounted to a misnomer (Podmore v. Schmidt, 17 C. B. N. S. 725).

(m) When a defendant in an action of contract is struck out at the instance of the plaintiff, the other defendant will in general be allowed to plead in abatement, if so advised (Cowburn v. Wearing 9 Ex. 207). As to the costs of the several parties, in case a defendant is struck out, see Jackson v. Nunn, 4 Q. B. 209; and see further as to the terms, &c., of amendment, supra, notes (c) and (d).

(n) Under this part of the section the Judge at the trial has power to strike out the name of a defendant in an action of contract who has been improperly joined. The power so conferred has been exercised in a case where one of seven co-defendants had suffered judgment by default, and the application was to strike out the names of two of those who had appeared (Johnson v. Goslett, 18 C. B. 728); and conversely the name of a defendant who has already suffered judgment by default, has been struck out (Greaves v. Humphreys, 4 E. & B. 851); and see further as to striking out a defendant wrongly joined, Cooper v. Sanders, 1 F. & F. 13; Mulford v. Griffin, ib. 145; Robinson v. Rudkins, 26 L. J. Ex. 56. Where, however, a defendant has been joined, not by mistake, but intentionally, and with the deliberate purpose of trying to fix him with liability, it has been held that the section does not apply (Wickens v. Steel, 2 C. B. N. S. 488; Holden v. Ballantyne, 29 L. J. Q. B. 148). When appli- The application for leave to amend must be made at the trial. It may be made after the plaintiff's case has closed (Salter v. Burnaby, 1 F. & F. 138), but it cannot be made after the jury have decided the question of liability by their verdict (Robson v. Doyle, 3 E. & B. 396; Wickens v. Steel, ubi supra). When, however, the Statute of Limitations would have been an answer to a fresh action, the Court, under the circumstances, allowed an amendment to be made after the trial and directed a new trial (Crawford v. Cocks, 6 Ex. 287).

cation to be made.

Costs.

Special cases

Questions of

law raised

by consent without

As to the power of the Court to review the decision of the Judge at the trial, in giving or refusing leave to amend, and as to other matters connected with amendments made at the trial, see ante, sect. 86, note (d).

As to the costs of a defendant struck out at the trial, see Redway v. Webber, 13 C. B. N. S. 254.

And for the determination of questions raised by consent without pleading, be it enacted as follows:

92. The parties may, after writ issued, and at any stage of the proceedings before judgment, by consent and order of a pleading, 15 Judge, state any question or questions of law in a special case for the opinion of the Court, without any further pleading (0).

& 16 Vict.

c. 76, s. 46.

(0) Under this and the following sections, parties who are interested in Stating a the determination of a question of law affecting their rights, may obtain the question of decision of the Court without being obliged to raise the question upon the law. record, or at the trial in the usual manner. Previous to the act, if the parties to an action were able to agree upon a statement of fact, they might, pursuant to 3 & 4 Vict. c. 105, s. 50 (repealed by the present act), draw up such statement after issue joined in the form of a special case for the judgment of the Court without proceeding to trial. The above enactment is an improvement on this, for the parties may now have a special case stated without any pleading, further than the summons and plaint.

And see Interplca

der.

When spe

There is no provision contained in the present Act, by which parties may Question of proceed to the trial of a question of fact, affecting their rights without for- fact. mal pleadings, although the English Common Law Procedure Act, 15 & 16 Vict. c. 76, 88. 42-45, contains such a provision. However, under the 8th & 9th Vict. c. 109, s. 19 (post, in the Appendix), whenever a Court of Law may desire to have any question of fact decided by a jury, it may direct an issue; and see Goodfellow v. Hunter, 9 Ir. Jur. N. S. 48. By section 4 of the C. L. P. A. 1856, moreover, the parties to any cause may by consent leave to the decision of the Court any issue of fact. further the Interpleader Act, 9 & 10 Vict. c. 64, post, in the Appendix. In order that the parties to an action may be able to avail themselves of the benefits of the provisions of the present Act, the question at issue between cial cases them must be one of law, and if matters of fact are in issue between them, or the question of law to be decided involves the determination of an issue of fact, the Court will leave the parties to go to a jury (Aldridge v. Great Western Railway Co., 3 M. & G. 515; Price v. Quarrell, 12 A. & E. fact is in784, 788). In the former of those cases the action was brought against a volved. company for the negligent management of a steam-engine, and the Court, under the circumstances, considered that the facts stated were not sufficient to enable them either to infer negligence on the part of the defendants, or to acquit them thereof, and the special case was therefore withdrawn. The Court may, however, draw inferences of fact, where a power to do so is given by the parties and accepted by the Court (Doe v. Crisp, 8 A. & E. 779). Such a power will not, however, be accepted by the Court where there is conflicting testimony (Brockbank v. Anderson, 7 M. & G. 295, 313; Whitmore v. Claridge, 8 Jur. N. S. 1059). Neither will the Court allow a special case

may be Where & question of

stated.

to be stated for the purpose of determining a mere speculative question, or if Where matthere be reason to believe that the action is not bona fide brought for the ter is not in purpose of determining a matter in actual present controversy between the actual controversy. parties (Kelly v. Molony, 4 Ir. C. L. R. 413; Anon. 4 Ir. C. L. R. 210 n.), and therefore if the action be a mere friendly suit, for the purpose of obtaining the opinion of the Court upon the true construction of a will and allaying doubts, the Court will decline to give any opinion (Doe v. Duntze, 6 C. B. 100).

The parties to a special case cannot by agreement evade the provision of the Stamp Acts, and if, therefore, it is provided by the special case that an unstamped instrument shall form part of the case, the Court will order the special case to be struck out (Nixon v. Albion Marine Insurance Co., L. R.

2 Ex. 338).

Where parties are desirous of stating a case for the opinion of the Court, How special it is advisable in the first instance to agree upon the form of it, and as to the case is to be money to be paid upon the decision of it. An arrangement should also be stated.

H

come to as to whether error may or not be brought, and as to the costs of the proceedings, see next section. When these matters have been arranged a writ should be issued and a consent prepared and signed by the counsel on both sides, upon which, the Judge before whom the motion is moved will make an order, giving the parties leave to state the special case, provided the question at issue is a proper one to be decided in that manner. As to the form of a special case, see Greville v. Gunn, 4 Ir. C. L. R. 201, where the special case as stated is set forth. It should be signed by counsel (Branchardiere v. Elvery, 18 L. J. Ex. 381). When the order has been made, the party having the carriage of it should, pursuant to the 158th G. O. 1854, proceed to make up books for the Judges, and set down the case for argument, in the same manner as directed by the 50th G. O. with reference to demurrers. When the case comes on to be argued, the argument must be opened on both sides by junior counsel (Ellis v. O Neill, 4 Ir. C. L. R. 467), and if the special case contains several questions, the Court will deliver a on a special separate judgment on each question, as a general judgment would be insufficient ('Dowell v. Keating, 3 Ir. Jur. N. S. 20).

Judgment

Case.

Costs.

Amending a special case.

Tath of parties.

Agreement

as to error

CA money and costs,

ording to

andraneat Upon special

,15&16 Vtch. 76,

est. 17.

As to the costs of a special case, in case no agreement has been come to in reference to them, see sect. 95, post.

As a general rule, when a special case has been stated under this section, the Court will not at the instance of one of the parties order it to be amended, unless the point as to which the amendment is sought has been omitted by error or through fraud (Mersey Docks v. Jones, 29 L. J. C. P. 239; Notman v. Anchor Assurance Co., 6 C. B. N. S. 536; Oldershaw v. King, 26 L. J. Ex. 384; Pennington v. Cardale, 10 W. R. 544); but see Carpenter v. Parker, 3 C. B. N. S. 206, where the Court ordered a special case to be amended after it was set down for argument, notwithstanding the opposition of one of the parties.

As to the consequences of the death of one of the parties to a special case, see Denison v. Holiday, 1 H. & N. 61; James v. Crune, 15 M. & W. 379.

93. The parties may, if they think fit, enter into an agreepayment ment in writing, which shall not be subject to any stamp duty, and which shall be embodied in the said or any subsequent order, that error may or may not be brought upon the judgment of the Court on such special case (p), and that upon the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by such special case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of such parties to the other of them, either with or without costs of the action, such agreement to be filed in the Master's office within ten days after the making thereof; and the judgment of the Court may be entered for such sum as shall be so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed by proceedings in error.

(p) Where the order as drawn up bound the parties by mistake not to bring error it was amended (Oldershaw v. King, 26 L. J. Ex. 384).

Proceedings

case, 17 & 18 Vict., c. 125,

s. 32.

94. In case it is not agreed that error may not be brought Proo upon the judgment of the Court upon such special case, either upon special party may take such judgment into a Court of Error, in the same manner, and with all such proceedings and consequences, as to bail, costs, restitution, and otherwise, as in the case of error brought upon an ordinary judgment, and the Court of Error before which such judgment shall be brought shall have the same power to proceed and give judgment upon the question or questions of law raised by the special case as the Court in which the original judgment shall have been given (4).

(9) As to proceedings in error in general, see post, ss. 166-188.

95. In case no agreement shall be entered into as to the costs in any such special case, the costs shall follow the event, and be recovered by the successful party, who shall have execution for the same (r).

(r) When no agreement as to costs has been entered into, a plaintiff who obtains judgment for part of his claim is entitled to the general costs of the cause, and the defendant is entitled to deduct any costs which he may have incurred in respect of the matter on which he has succeeded (Elliott v. Bishop, 10 Ex. 522; Gosbell v. Archer, 5 N. & M. 523). As to the costs in case error is brought, see S. C. 1 Jur. N. S. 808.

With respect to judgment by default and to judgment on demurrer for the plaintiff, and the mode of ascertaining the amount to be recovered thereupon:

Costs to folevent unless

low the otherwise agreed, 15 & 16 Vict., c. 76, s. 45.

Judgment by default.

ment may

where demand

liquidated,

15 & 16 Vict.

96. No rule to compute shall be necessary or used; but Final judgwhere the plaintiff's claim is for a debt or liquidated demand be marked in money, with or without interest, arising upon a contract, express or implied (s), in default of such defence or demurrer filed within the time aforesaid by the defendant, it shall ch. 76, sect. be lawful for the plaintiff, on filing an affidavit of the service 27, 92 & 9. of the writ of summons and plaint in the manner hereinbefore prescribed, or of such substituted service as may be authorized as aforesaid, and of the notice of filing the summons and plaint, if any, and certificate of no defence filed (†), to sign final judgment in the Form No. 4, in the Schedule B, to this Act annexed, on which judgment no proceeding in error shall lie (u), for any principal sum not exceeding the sum claimed by the said writ, with legal interest thereon (e),

What is a liquidated deinand.

Work and labour.

Action for
COSTS.

and a sum for costs (w), to be fixed by the Taxing-Master of the said superior Courts, subject to the approval of the Lord Chief Justice of the Queen's Bench, and the other two Chief Judges of the said Courts, unless the plaintiff claims more than such fixed sum, in which case the costs shall be taxed in the ordinary way; but no costs of such taxation shall be allowed unless the costs so taxed shall exceed the sum so settled and approved of; and the plaintiff may, upon such judgment, issue execution: provided always, that it shall be lawful for the Court or a Judge to let in the defendant to defend upon such terms as to such Court or Judge shall seem proper (~).

(5) A "liquidated demand in money" means such an one as the plaintiff can by calculation ascertain the amount of (Cullen v. Moran, 2 Ir. Jur. N. S. 28, per Greene, B.); and accordingly a plaintiff is entitled under the above section to mark a final judgment by default, not only in the class of actions in which before the passing of the Act a rule to compute, or, as it was commonly called, an order to tot, might have been obtained, but also, in actions for liquidated money demands, which, though not technically actions of debt, yet the basis having been first ascertained by the confession of the defendant, the amount is mere matter of calculation (Connolly v. Teeling, 12 Ir. C. L. R. Ap. 29, per Fizgerald, J.). Thus where an action is brought against a surety upon a guarantee, the plaintiff is entitled to mark a final judgment under this section, whenever the claim against the principal is in respect of a liquidated demand; see 15 & 16 Vict. c. 76, 8. 25. An action upon a judgment is an action for a liquidated demand in money "arising upon a contract" within the meaning of the present section (Hodsoll v. Baxter, E. B. & E. 884); and see the Statute 31 & 32 Vict. c. 54 (post, in the Appendix), as to obtaining execution in this country upon an English or Scotch judgment. Where an action is brought to recover a penalty given by Statute, the plaintiff is entitled mark a final judgment in case of default (M'Dermott v. Sullivan, Ir. R. 2 C. L. 312).

On the other hand, where, upon referring to the bill of particulars, it is found that it contains claims which cannot be taken to have been admitted by nil dicit matters of controversy as to the amount of which a dispute may exist, the judgment will be interlocutory only in the first instance. Thus, where the demand is in the nature of a quantum meruit, as, for instance, for work and labour for which no fixed sum has been agreed to be paid, and the amount of which cannot therefore be arrived at by numerical calculation, the plaintiff is only entitled to mark an interlocutory judgment; and if a final judgment be marked it will be set aside (Connolly v. Teeling, 12 Ir. C. L. R. Ap. 29; Regan v. Regan, 4 Ir. L. T. 136). In such a case the section applicable is not the present one, but the 98th, post. On the same principle when an action is brought to recover the amount of a bill of costs, the plaintiff is only entitled to an interlocutory and not to a final judgment (Shortal v. Farrell, Ir. R. 3 C. L. 506), with which compare Cullen v. Moran, 2 Ir. Jur. N. S. 28. In the case of an ordinary action on a bill of exchange, the plaintiff cannot include in the amount for which he marks a final judgment by default, the expenses of noting (Rogers v. Hunt, 10 Ex.

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