eration of the Court of Appeal in Bozson v. Altrincham Urban Council.3 Both Shubrook v. Tufnell and Salaman v. Warner were cited, and the Court affected to prefer the earlier decision, but Lord Alverstone laid down a new rule, stating the test to be: "Does the judgment, or order, as made, finally dispose of the rights of the parties?'' By the application of this principle the order under appeal in Shubrook v. Tufnell was an interlocutory, and not, as there held, a final order; and, in addition to the awkwardness of extracting from a case a principle not enunciated therein, and incompatible with the actual decision, the new rule has been found so difficult to apply as to lead to totally irreconcilable decisions. For instance, in the case of Page, although Bozson's case was cited, the Court of Appeal held that an order dismissing an action as frivolous and vexatious is an interlocutory order, notwithstanding that such an order does, most effectually, "finally dispose of the rights of the parties." In the last case Buckley, L.J., observed: "The rules are so expressed and the decisions are so conflicting that I confess I am unable to arrive at any conclusion satisfactory to my own mind as to whether this is an interlocutory or final order . . . I desire to say that in my opinion it is essential that the proper authorities should lay down plain rules as to what are interlocutory orders, for as matters now stand it is the fact that it is impossible for the suitor in many cases to know whether an order is interlocutory or final." After such an expression of opinion from a Lord Justice, further comment is needless. In our own Courts suitors have not failed to suffer from this confusion. 5 In Fuller v. Yerxa it was held by a Divisional Court that an order setting aside an order giving 8 [1903] 1 K. B. 547. 4 [1910] 1 Ch. 489. (1887), 1 B. C. R. Pt. ii. 330. leave to issue a writ of summons for service out of the jurisdiction was a final order. This decision, of course, is wrong according to the principle of Salaman v. Warner, and Salaman v. Warner was followed by the Divisional Court for British Columbia in Ward v. Clark, Denny v. Sayward' and Edison v. Edmonds; and by the Court of Appeal for British Columbia in Koksilah v. Reg. and Brigman v. McKenzie.10 Moreover, Salaman v. Warner seems to have met with the approval of the majority of the judges in The Municipality of Morris v. London, etc., Agency, Ltd." It would have seemed, therefore, that Fuller v. Yerxa had received its quietus, yet the Court of Appeal of British Columbia felt itself constrained, as late as April, 1916, to follow Fuller v. Yerxa, in a precisely similar case, and thus to throw overboard the principle established by Salaman v. Warner. Fortunately the case escaped being reported and the same Court has just reverted to its adherence to Salaman v. Warner. 12 In Chilliwack, etc., Co. v. Chung an order identical in effect with that in Fuller v. Yerxa has been held to be interlocutory, so that there is ground for hoping that the ghost of Fuller v. Yerxa is finally laid. The course of decision on this point well exemplifies the anarchy into which a system founded on scattered precedents is apt to fall. If the English Court of Appeal in 1891 acted on a principle contrary to the one in force up to that time, because the case which established that principle was not cited, and if the Court in 1903 declined to follow its decision of 1891, and reverted to its decision of 1882, 6 (1895), 4 B. C. 71. 9 (1897), 5 B. C. 600. 10 (1897) 6 B. C. 56. 11 (1891) 19 S. C. R. 434. what does this show but that the substantial rights of litigants are at the mercy of accident, and that a system of law resting on precedent is likely to be neither stable, convenient nor intelligible. But the vice of subtle refinement and the itch for differing with what has gone beyond have left their mark even upon what was doubtless intended to be a simple and coherent code, capable of easy application, viz., the Rules of the Supreme Court. It is only necessary to contrast the bulk of the text with that of the glosses. Anyone familiar with the Annual Practice must experience a feeling of mild despair in thinking of the enormous amount of ingenuity expended on the consideration of the apparently simple language of the rules, and in reflecting on the astonishing difficulty of expressing any maxim in language which will defy "interpretation." One of the most vitally important matters for the litigant is to know how to shape his action at the commencement. How many grievances may he liquidate in one action? Who may be joined as plaintiffs or defendants to an action? The rules on the matter of joinder of parties are now found in England and British Columbia under Order XVI. Rule 1 of this Order provides that "All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise." Notwithstanding the apparent clearness of this language, the decisions upon this rule have resulted in creating an atmosphere heavy with doubt, and the extent of the confusion may be measured by the divergent opinions of the judges of the Court of Appeal for British Columbia in the recent case of Allan and Allan v. McLennan and the Bank of Vancouver.13 13 (1916), 23 B. C. 515. In that case the defendant McLennan had sent out into the world an agent commissioned to sell unissued shares in the Bank of Vancouver; this agent had interviews with a number of victims, including the plaintiffs, and had induced the plaintiffs among others to engage to buy blocks of unissued shares in that bank. In fact McLennan was really selling his own shares in the bank, and put off on the plaintiffs two blocks of shares which had already been issued by the bank and were held in trust for McLennan. In one view the "transaction" was one and indivisible, and consisted in McLennan's sending out an emissary with false information to snare the unwary. In other words the "right to relief was alleged to exist arising out of" the fraud of McLennan in selling his own shares under the pretence of selling unissued shares in the bank. Moreover the questions of fact and law were identical with the single exception that the false and identical representation was made to one defendant on June 22nd, and to the other defendant on July 4th. The difficulty created by the state of the decisions on the rule may be measured by the fact that so very. learned and acute a judge as Mr. Justice Martin considered that there had been a misjoinder of parties. It perhaps only remains to observe that the case of Stroud v. Lawson 14 seems difficult to reconcile with the statement made by Lord Macnaghten in the later case of Bedford v. Ellis,15 that the rule must cover the case of several creditors joining as co-plaintiffs in a creditors' action, although the debts of such creditors would be separate, and not the result of a series of transactions. Instances of the perplexities incident to the conduct of an action might be multiplied ad libitum, but 14 [1898] 2 Q. B. 44. 15 [1901] A. C. 1. it is hoped that enough has been said on these two selected matters to justify the remark of Matthew Green, expressed in metrical form, that: "Law's grown a forest where perplex We grievous penalties incur; --- And wanderers tire and tear their skin, E. C. MAYERS. Vancouver, B.C. |