defendant in the action, and also an amendment in the declaration by alleging goods sold to the defendant's wife before the marriage.

A verdict was taken for the plaintiffs for the amount claimed, leave being reserved to the defendant to move to enter a nonsuit, if the Court should be of opinion that the learned Judge had no power to amend.

R. E. Turner accordingly, in Michaelmas Term last, obtained a rule nisi to enter a nonsuit, on the ground that the defendant's wife was not a party to the action, and that the Judge had not the power to amend the record. He submitted that neither the 36th, 37th, nor 39th sections of the Common Law Procedure Act, 1852, applied to the nonjoinder of a defendant; and that the 222d section, which was mainly relied on by the plaintiffs at the trial, had no application to a case of misjoinder or non-joinder of parties.-citing Wickens v. Steel, 2 C. B. N. S. 488 (E. C. L. R. vol. 89). He further submitted that this was an attempt to join the real defendant, against whom the writ was not issued, and as against whom, if she survived her husband, the remedy would survive. [WILLIAMS, J.-It is rather a case of variance. The goods were never sold to the husband.]

*Needham now showed cause.-Assuming that the special provisions of the Common Law Procedure Act, 1852, as to [*618 misjoinder or non-joinder of parties, do not apply to a case like the present, it is submitted that the 222d section (a) gives ample power to nake any amendment which may be necessary to determine the controversy between the parties. [WILLES, J.-In Blake v. Done, 7 Jurist, N. S. 1306, the Judge at Nisi Prius, in an action of ejectment by the mortgagee of trust-property, amended the record by adding the names of the trustees as claimants: and the Court of Exchequer held that he was justified by s. 222 in so doing.] No inconvenience or injustice could result from allowing such an amendment, seeing that the husband defends for his wife even where she is joined for conformity and it is for the Judge at the trial, looking at the record, and at the evidence, to say what is "the real question in controversy between the parties,"-Wilkin v. Reed, 15 C. B. 192 (E. C. L. R. vol. 80). Such an amendment was within the discretion of the Judge even before the Common Law Procedure Act. Thus, in Horton v. The Inhabitants of Stamford, 1 C. & M. 773,† where the plaintiff, by mistake, had proceeded against the inhabitants of the hundred instead of the borough of S., in an action for damage by rioters under [*619 the 7 & 8 G. 4, c. 31, the Court of Exchequer amended the writ and subsequent proceedings by striking out the word “hundred,” and substituting the word "borough," the time for bringing a fresh action having expired. Bayley, B., there says: "This is an action brought in substance against the inhabitants of Stamford. The plaintiff says that he has been injured, and that they are liable to him for the damage. The Act of Parliament gives him, as he supposes, a

(a) Which enacts that "it shall be lawful for the superior Courts of common law and every Judge thereof, and any Judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the Court cr Judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, shall be so made."

remedy. He has attempted to sue the proper persons, so as to raise the question whether he has a remedy under the Act of Parliament. He has, however, mistaken the name of the district or place. It appears to me that we should be doing injustice, if we were to allow him to be concluded by such a mistake. If the record were to go uncorrected to trial, justice would be defeated merely because the advisers of the plaintiff have been guilty of a slip. There are instances, even in the case of penal actions, where the Courts have allowed amendments, and have given as their reason for such amendments that the parties would be too late if the amendments were not allowed. Plaintiffs' names have been added and changed repeatedly; and, since the late Bankrupt Act, we have had several recent instances where the names of the official assignees of bankrupts have been added, to prevent a failure of justice." [WILLES, J.-The subject was very much discussed in this Court in Taylor v. Best, 14 C. B. 487 (E. Č. L. R. vol. 78).(a) I should have thought it mattered little whether the party sought to be added was a plaintiff or a defendant.] The terms of the 222d section are as wide as can be: and the mere fact that certain prior clauses have been specially directed to the adding or striking out of parties, does not prevent reliance being placed upon *620] *that general provision,-more especially as those sections deal only with non-joinder or misjoinder of plaintiffs, the legislature perhaps intentionally leaving the non-joinder of a defendant to be dealt with under the general power conferred by s. 222. The case of Blake v. Done seems to embrace this case. This was an action of ejectment brought in the name of the cestui que trust only. At the trial, an application was made to amend by adding the names of the trustees as claimants. The Judge allowed it, and the Court held that he had done right. It was urged there that the 222d section did not apply to the joinder of parties. Pollock, C. B., there says: "I am not prepared to say that the earlier clause justifies the amendment: but I am quite satisfied that the 222d section is quite sufficient. Technically it amounts to this,-whatever amendments are required, either in the names of the parties or otherwise, may be made.(b) The object is, to bring the real question before the Court; and the Judge at Nisi Prius is at liberty to make the necessary alterations." Channell, B., says: "I will assume that the 35th section does not give this power; but the 222d section does not apply to any particular form of action. I think it was intended to enlarge and increase the powers previously given it must be read along with the 35th section, which especially applies to the joinder of parties; and, if the 222d section was intended to increase and enlarge the powers of the Court in that respect, the exercise of the power in this instance being as salutary as any that can be imagined, I am justified in saying that the power exists under the Act." And Bramwell, B., says: "When we read the 222d section, the intention appears to be, that whatever special power of *621] amendment was not previously given, by inadvertence or otherwise, should be given thereby; and it may be that there is a general power of amendment by adding plaintiffs, although there is a special (a) And see Johnson r. Goslett, 18 C. B. 728 (E. C. L. R. vol. 86).

(b) This is qualified by the observations of the same learned Judge in giving judgment in Vide post.

this case in the Court of error.

power of adding plaintiffs, and therefore it is not inconsistent that a general power of amendment should exist. Therefore, if s. 35 does not apply, we can have recourse to s. 222, and in doing so we are not acting contrary to the sections named, for the sections may be read together."

Markby, in support of the rule.-The fair inference from the earlier sections, which define the amendments which are to be allowed in the cases there dealt with,-is, that there is no power of amendment in a case like this: and there are manifestly good reasons why there should not be. [WILLIAMS, J.-If a defendant is added, he has had no notice of the previous proceedings. The legislature seems to have assumed that a man might not like to be made a defendant in a suit at the time of trial, and therefore did not provide for the case of adding a defendant without his consent. The question is, whether it makes any difference that the person sought to be added is the wife, who is in the power of her husband?] The very next section (s. 40) deals with the case of husband and wife. If the legislature had intended to make the wife's an exceptional case, they would have provided for it. Many attempts have been made to bring cases within s. 222, where the provisions of the earlier sections fell short: but in no case has a defendant been allowed to be added. Horton v. The Inhabitants of Stamford, 1 C. & M. 773,† was a mere case of misnomer. The same parties, substantially, remained on the writ as before the amendment. In Robson v. Doyle, 3 Ellis & B. 396, the Court expressly say that "s. 222 clearly has no application to a case of mis[*622 joinder:" and Crompton, J., in the course of the argument, observes, that, "if s. 222 were thus to override the earlier sections, the conditions annexed to the amendment, in s. 37, could not be secured." In Wickens v. Steel, 2 C. B. N. S. 488 (E. C. L. R. vol. 89), which was also a case of misjoinder of parties, Cockburn, C. J., likewise held that s. 222 has no application to joinder of parties. With regard to Blake v. Done, that was a case of ejectment, which stands on different grounds. [WILLIAMS, J.-Ejectment is left under the equitable jurisdiction of the Court. The 221st section enacts that "the several Courts and the Judges thereof respectively shall and may exercise over the proceedings the like jurisdiction as heretofore exercised in the action of ejectment, so as to insure a trial of the title, and of actual ouster, when necessary, only, and for all other purposes for which such jurisdiction may at present be exercised; and the provisions of all statutes not inconsistent with the provisions of this Act, and which may be applicable to the altered mode of proceeding, shall remain in force and be applied thereto." It is unnecessary, therefore, to say whether the earlier sections did or did not apply to ejectment.] It is said that no hardship could result from the course here pursued. But, the wife being joined, if her husband died, the judgment would survive as against the wife; and, if she died, as against her personal representative. [WILLIAMS, J.-The amendment gives the plaintiffs that which they never sought to obtain by their writ, viz., a judgment against the wife.]

ERLE, C. J.-This rule seeks to set aside a verdict found for the plaintiff, and to enter a nonsuit, on the ground that the amendment made at the trial was one which is not authorized by law. I am of C. B N. S., VOL. XI.-24

opinion that the rule should be made absolute. The action is *623] brought by the plaintiffs for the price of goods alleged to have been sold and delivered to the defendant. It turned out at the trial that no goods were in point of fact sold to the defendant; but that the goods in question were sold to the defendant's wife before her intermarriage with the defendant: and therefore it was clear that the plaintiffs must be nonsuited, unless the record was amendable and amended by making the wife a party to it. The amendment was therefore applied for, and granted. Was that amendment properly made? It is admitted that the earlier sections of the Common Law Procedure Act, 1852, relating to misjoinder or nonjoinder of parties, do not confer this power: but it is said that the case falls within the 222d section, which enacts in general terms that "all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties" shall be made. It is contended by Mr. Needham that the amendment here made, by making the wife a party to the suit, was necessary for the purpose of determining in the existing suit the real question in controversy between the parties, and that no injustice will be done thereby. It is true that no injustice will be done if both husband and wife continue alive until the plaintiffs have obtained the fruits of their judgment. But, suppose the husband shall die, this hardship would be imposed on the wife, viz., that a judgment upon the amended record would be operative against her. That is a possible hardship to which I think she ought not to be exposed. Moreover, if this amendment be allowable under s. 222, it may be made at any time,-after trial and verdict. But, surely the legislature never could have intended to place a new defendant upon the record at the trial, to be at that late stage brought into a condition of *Hiability, without any notice, and *624] without consent. In any other case than that of husband and wife, it would obviously be a most glaring injustice. There are several sections, beginning with s. 34 and ending with s. 39, which are addressed specifically to joinder of parties. It would seem as if the legislature in that part of the statute were considering what powers they should confer upon the Court or Judge as to the putting on and striking parties off the record. I think it is manifest that these sections provide for all the cases as to joinder, with the exception of the action of ejectment, which stands upon its own peculiar grounds. Then section 40 contains a special provision as to the joinder of claims by husband and wife. I think there is great force in the argument which was founded upon that section. The Court of Queen's Bench in the case of Robson v. Doyle, 3 Ellis & B. 396 (E. C. L. R. vol. 77), and this Court in Wickens v. Steel, 2 C. B. N. S. 488 (E. C. L. R. vol. 89), seem to have considered that the 222d section does not apply to the adding or removing of parties from the record. And, as to the case of Blake v. Done, 7 Jurist, N. S. 1306, the proper answer was given to that during the argument, viz., that it was an action of ejectment, which is so far the creature of the Court that they might always mould the proceedings so as to insure the trial of the real title. As to the case of Horton v. The Inhabitants of Stamford, 1 C. & M. 773,† the answer was given by Mr. Markby: that was in truth a mere case of misnomer: the plaintiff had a claim against the district; he sued the

hundred, and the inhabitants of the borough, who were the real parties to the suit, appeared: the amendment consisted in setting right the mere mistake in the name of the district. But it is far beyond the principle on which amendments are allowed, to bring into the suit at the trial one whom the plaintiff at the time of the commencement of the action *never thought of charging. I would be extremely willing to sustain this amendinent, if I could think [*625 it at all justifiable. But I cannot come to any other conclusion than that it is a case which is not within the intention of the legislature, and would form a bad precedent. The rule must be absolute, to enter a nonsuit.

WILLIAMS, J.-I am of the same opinion. If this amendment were upheld, the effect would be to turn this into an action against the wife, against whom the plaintiffs did not by their writ seek a judgment. Not to rely upon the argument, that, to say that, because the present case is not included in any of the special clauses of the Common Law Procedure Act as to joinder of parties, recourse may be had to the general section, would render the special clauses superfluous,—an › argument which, nevertheless, I consider to be entitled to much weight, it is enough to say that the 222d section was not intended to warrant an amendment which would enable a plaintiff to get a judg ment which he never contemplated when he commenced his action. It would not, in truth, be making an amendment in the action, but giving the plaintiff a new one.

WILLES, J.-I am of the same opinion. A husband is not liable to be sued, simpliciter, for debts contracted by his wife before marriage: he is only joined for conformity. The present action, therefore, was substantially misconceived. I cannot help thinking, looking at the parties and at the pleadings, that the real contest between the parties was intended to be whether the defendant was or was not liable alone and I own I should have entertained considerable doubt whether that was a case for the exercise of the power conferred by the latter words of the 222d section of the *Common Law Procedure Act. But I think, for other reasons, this rule ought to [*626 be made absolute. I can quite understand the propriety of amending by adding a trustee, in ejectment, because there the real question is, whether the person who sues has a right to the possession of the land, and it is immaterial to the defendant whether the legal right is in him or in another as trustee for him; and the 221st section retains the power which the Court always had of dealing equitably with the proceedings in ejectment, by adding a demise, and so on. Another serious objection to this amendment exists. The Court has only jurisdiction by reason of the writ, and that must be against the person who is to be brought before the Court by the process. The Common Law Procedure Act, 1852, did not mean to interfere with that general principle. The 38th section deals with the case of one debtor pleading the non-joinder of one who ought to have been joined as a co-defendant; and there power is given to the plaintiff, without any order, to amend the writ and declaration by adding the name of the person named in the plea as a co-contractor, serving the amended writ upon the person so named, and proceeding against him as if the date of the amendment was the date of the commencement of the action,-the party so

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