SECTION 6. JOINDER OF PLAINTIFFS.

PARTIES

JOINTLY INTERESTED MUST SUE TOGETHER.

"In actions ex contractu, misjoinder or nonjoinder of plaintiffs may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error, or, where the defect is not apparent on the face of the pleadings, by plea in abatement or motion for a nonsuit.

"In actions ex delictu, unconnected with contract, misjoinder may be remedied by demurrer, motion in arrest of judgment, or writ of error, or, if not an apparent defect, by motion for nonsuit; nonjoinder only by plea in abatement or by apportionment of damages on the trial."

SECTION 7. JOINDER OF DEFENDANTS.

Parties subject to a common liability must be sued jointly or severally, according to the nature of the undertaking, the intenion of the parties, or the express words of the contract.

"In actions ex contractu, misjoinder may be open to demurrer, motion in arrest of judgment, or writ of error; or, if not apparent on the fact of the pleadings, by motion for nonsuit at the trial; nonjoinder only by plea in abatement, unless it appear from the pleadings of the plaintiff that the party omitted jointly contracted and is still living."

• Shipman on Common Law Pleading, Secs. 32-33.

• Id., Sec. 34.

CHAPTER III.

COMMON LAW ACTIONS.

SECTION 8. CLASSIFICATION OF ACTIONS.

Actions under the common law are divided into real, mixed, and personal. Personal actions are subdivided into actions, ex contractu, or actions arising out of contracts, and actions ex delictu, or actions arising out of torts. Real and mixed actions will be discussed in Chapter III, actions ex contractu in Chapter IV and actions ex delictu in Chapter V.

CHAPTER IV.

REAL AND MIXED ACTIONS.

SECTION 9. IN GENERAL.

The number of different real actions was, in early times, very large. It is impossible to give the exact number of such actions, but there appear to have been several hundred of them in all. Real actions were divided into proprietary actions, by which the right of property was determined; and possessory actions, by which only the right of possessoin was settled.

Mixed actions were those brought for the recovery both of the land and for damages for its detention.

SECTION 10. WRIT OF RIGHT.

The proprietary right to an estate in fee simple was determined by the writ of right often referred to as the grand assize, from the method of trial granted by Henry II, in actions of this character. There were four forms of writs of right proper: (a) the writ or right patent; (b) the writ of right quia dominus remisit curiam' (c) the writ of right precipe in capite, and (d) the writ of right patent in London.

SECTION 11. WRITS IN THE NATURE OF WRITS OF RIGHT.

In addition to the true writs of right there were a large number of writs in the nature of writs of right, which were used for the purpose of recovering the right of property in incorporeal hereditaments, or of corporeal estates less than fee simples. The most

important of this class of writs, with the purpose of each, were as follows:

Writ of formedon, to recover an estate in fee tail. Writ of advowson, to recover the right of presentation to a benefice.

Writ of right de rationabli parte, to recover the plaintiff's proper share of the estate, this writing only being used between privies in blood.

Writ of dower, writ of right of dower, and writ of dower unde nihil habet, to recover estates in dower. Little writ of right close to recover estates in an ancient demesne.

SECTION 12. THE LESSER ASSIZES.

The lesser assizes were four possessory actions in which the assize, or trial by jury, was permitted. The development of these assizes is described in the following extracts from Pollock and Maitland's History of English Law1:

"Thus the sworn inquest begins to make its way into our ordinary civil procedure. In a proprietary action for land or for advowson, the 'tenant,' the passive party, may, rejecting battle, 'put himself upon the grand assize of our lord the king,' and an inquest Iwill then be called in to declare who has the better right. In four other cases a plaintiff may begin proceedings by obtaining a royal writ, which will direct that an inquest shall be sworn to answer a particular question formulated in the writ. These four cases are the subject-matter of the four petty assizes, (1) the assize utrum, (2) the novel disseisin, (3) the mort d'ancestor, (4) the darrein presentment. It is probable that for a short time a few other cases were met in a 1 Vol. I, extracts from pages 124-7, 1st Ed.