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1906.April 5.
WoodRenton J.
it wjas held by the House of Lords that they could not be joined asdefendants. So far as procedure of this kind is concerned, plaintiffsand defendants stand in the same legal position, and it seems to methat the principles which were laid down by the House of Lords inthe case I have quoted apply a fortiori to the present case, where thereis no ground for suggesting that the joint arrest, as part of the act inquestion, is a necessary element of the cause of action. I may point,out that the case of Sadler v. The Great Western Railway Go. wasdecided under the English rules (see Rules and Orders under theJudicature Acts), which are wider in their terms than section 11,
P.C. containing, as it does, an express limitation of the rightof joinder in cases in which the cause of action is the same. I do notthink that Booth v. Briscoe (1), even if it is still law in England, canbe followed here, regard being had to the words " the same cause ofaction ” in section 11, C.P.C. Mr. Dornhorst called my attention tosection 36. C.P.C., which permits joinder of several causes of actionby plaintiffs who are “ jointly interested ” in a cause of action againstthe same defendant. I can only say that I do not think that thereis any joint interest in the two plaintiffs in the present case. I set asidethe judgment appealed against, with the usual consequences. Itwill still be open to either plaintiff or both, if they are so advised, to.bring separate actions in respect of the alleged injury for which thatamount is claimed. At least there is nothing in my present judg-ment to prevent them from doing so. In regard to the merits. Ishall of course say nothing here or now, except to call the attentionof the learned Commissioner of Requests to some of the recent deci-sions of this Court, of which the case of Moss v. Wilson (2) is thelatest, and may, I think, be taken as a typical instance as to theburden of proof and the facts which have to be proved by a plaintiffin such cases. I say this only because, a perusal of the judgment whichwas brought to my notice by counsel has left some doubt in my mindas to whether the learned Commissioner was in the possession ofthese authorities.
(1) 2 Q. B. t>. 496.
(2) 8 N. L. R. 368.