PART II. payment of its debts and liabilities and the costs of winding up, the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the Law of Bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in under the decree or order for the administration of such estate, or under the winding up of such company, and make such claims against the same as they may respectively be entitled to by virtue of this Act." (Re Caermarthenshire &c., Co., 45 L. J. Ch. 200; Mathews v. Mathews, 45 L. J. Ch. 711; Re The Coal Consumers' Association Limited, 46 L. J. Ch. 501.)

BEFORE bringing an action, it is necessary to consider who should be made plaintiff or plaintiffs, and against whom the

action should be brought. All proper and necessary persons should be made parties. The effect of misjoinder and nonjoinder will presently be considered. We have not space to go into the whole law of parties to actions, but we ought to refer to the provisions in the Judicature Acts on this subject. The alterations in the law made by these Acts have rendered some of these provisions necessary.

All persons may be joined as plaintiffs in whom the Who to bɔ right to any relief claimed is alleged to exist, whether plaintiffs. jointly, severally, or in the alternative. (0. 16, r. 1.) But two owners of distinct properties should not join as plaintiffs in an action to restrain a nuisance; and if several persons are injured by a railway collision, they should not join as plaintiffs in one action for compensation. (Appleton v. The Chapel Town Paper Co., 45 L. J. Ch. 276.)

All persons may be joined as defendants against whom Who to be the right to any relief is alleged to exist, whether jointly, defendants. severally, or in the alternative (a). And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment. (0. 16, r. 3.)

It is not necessary that every defendant be interested as to all the relief prayed for, or as to every cause of action included in the action; 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

(a) See Evans v. Buck, 46 L. J. Ch. 157; Child v. Stenning, 46 L. J. Ch. 523.

PART III. required to attend any proceedings in such action in which he may have no interest. (O. 16, r. 4.)

Trustees

and execu

&c.

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. (O. 16, r. 5.)

Where in any action, whether founded upon contract or otherwise, the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in such manner as hereinafter mentioned, (a) or as may be prescribed by any special order, 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 determined as between all parties to the action. (O. 16, r. 6.) T. entered into a contract with the plaintiff company to take some of their debentures, asserting that he was acting as L's. agent in the matter, and with his authority. L. repudiated the contract on the ground that T. had no such authority. The plaintiff having brought an action against L. for a breach of this contract, subsequently obtained leave under this rule to join T. as defendant for the purpose of claiming alternative relief against him: held that he was properly so joined. (The Honduras Interoceanic Railway Co. Limited, v. Lefevre, 46 L. J. Ex. 391.)

Trustees (b) executors, and administrators, may sue and be sued on behalf of or as representing the property or tors suing, estate of which they are trustees or representatives, without joining any of the parties beneficially interested in the trust or estate, and shall be considered as representing such parties in the action; but the court or a judge may, at any stage of the proceedings, order any of such parties to be made parties to the action, either in addition to or in lieu of the previously existing parties thereto. (O. 16, r. 7.)

In general where there are several executors or administrators, all should be joined as plaintiffs in an action, though one be within the age of 17 years, or has not proved or administered. But by 20 & 21 Vict. c. 77, the Act for establishing a Court of Probate, s. 79, "Where any person, after the commencement of this Act, renounces probate of the Will of which he is appointed executor or one of the executors, the rights of such person in respect of the executorship shall wholly cease, and the representation to the

(a) The Honduras Interoceanic Railway Co. Limited v. Lefevre, 46 L. J. Ex. 391, per Bramwell, L. J.

(b) See 15 & 16 Vict. c. 86, s. 42, post, 42, note. As to trustees of bankrupts suing, see chap. 34.

may,

testator and the administration of his effects shall and without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor." And by 21 & 22 Vict. c. 95, s. 16, "whenever an executor appointed in a will survives the testator, but dies without having taken probate, and whenever an executor named in a will is cited to take probate, and does not appear to such citation, the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects, shall, and may without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor."

CHAP. IX.

In general in an action for a debt or damages wherever the Actions by cause of action would survive to the wife, she and her husband husband should be joined as plaintiffs in the action; but and wit sometimes where the cause of action accrues during coverture the husband may sue in his own name or in the joint names of himself and his wife. By Married Woman's Property Act, 1870, s. 11, a married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and property by this Act declared to be her separate property, or of any property belonging to her before marriage, and which her husband has by writing under his hand agreed with her, shall belong to her after marriage as her separate property, and she has in her own name the same remedies against all persons for the protection and security of such wages, &c., and of any property purchased or obtained by means thereof for her own use, as if such wages, &c., belonged to her as an unmarried woman. Also, by the Divorce Acts, (a) a woman who has obtained a decree for a judicial separation, whilst the separation continues, and a wife deserted by her husband who has obtained an order to protect her property &c. against her husband or his creditors, during the continuance thereof, is considered as a feme sole for certain purposes, and for suing and being sued in civil proceedings. In cases also where the husband is considered civilly dead, the wife may sue in her own name.

In equity the general rule was the same as at common law, though in particular cases the wife might sue alone. By O. 16, r. 8, married women may sue as plaintiffs by their next friends in the manner practised in the Court of Chancery before the passing of the Judicature Acts. Married

(a) See 20 & 21 Vict. c. 85, ss. 21, 25, 26, 8, 10; 21 & 22 Vict. c. 108, ss. 7, 9; 27 & 28 Vict. c. 44.

PART III

women may also by leave of the court or a judge sue or defend without their husbands and without next friend on giving such security (if any) for costs as turt or a judge may require. It is as well, therefore, to state shortly how married women sued without their husbands in the Court of Chancery before the passing of the Judicature Acts.

Where husband and wife sued in such court as co-plaintiffs, or where the husband sued as next friend of the wife, the suit was regarded as the suit of the husband alone. In general, therefore, where the suit related to the separate property of the wife—as a suit to rectify a marriage settlement-it was necessary that it should be brought in her name by her next friend. Where, however, the suit was for a chose in action of the wife, not settled to her separate use, the defendant could not object to the husband suing jointly with the wife as co-plaintiff. Where the wife sued by her next friend (not being her husband), the husband was made a party to the suit, and it was usual to make him a defendant. A wife in her own name by her next friend might sue her husband in respect of her separate property; so might a husband in a similar case sue his wife. A bill, however, could not, as in the case of an infant, be filed by a next friend on behalf of a married woman without her consent. A written authority from and signed by the next friend, to use his name, must have been filed with the bill: (15 & 16 Vict. c. 86, s. 11). He need not have been a relation, but he must have been a person of substance because he was liable to costs. But in some cases where it was shown by affidavit that the wife was unable to procure any substantial person to act as her next friend, an order might be obtained authorising her to institute and prosecute a suit without a next friend in forma pauperis. If the next friend of a married woman died or became incapable of acting, or if for any reason the plaintiff desired to remove him, she might at any time, before any defendant had entered an appearance to the bill, introduce into the record the name of a new next friend under an order as of course. After appearance the same might be done where a new next friend was named in the place of a deceased one; but in other cases the order to appoint a new next friend was obtained either on motion or summons after notice. If the plaintiff neglected or refused to obtain the order in the case of the next friend's death, the defendant might apply to the court by motion upon notice for an order directing her to name a new next friend within a limited time, or in default that the bill might be dismissed with