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disposed to give a liberal interpretation to the words “fair trial of the action," and to hold that a pleading, which tends to prejudice, embarrass, or delay the plaintiff at any stage of the proceedings in the action, not merely so as to prevent him from fairly trying at the actual trial of the action, but so as to prevent him from ever trying on fair terms, the real issue between him and the defendant, the obtaining of a decision upon which is the legitimate object of the action, would affect the "fair trial” of the action within the meaning of the rule ; but giving this interpretation to the rule we are of opinion that in general such a payment into Court as that under consideration has not the effect referred to, and ought to be allowed. That it works no practical inconvenience and leads to no necessarily embarrassing inconsistency in the record will be seen by considering what, if that course be adopted, will be the practical result of the trial of the action. If the plaintiff fail at the trial to establish his causes of action, the judg. ment will be properly a general one for the defendant, for if there be no cause of action, it follows that the plaintiff cannot be entitled to recover anything more than that which the defendant has paid into Court, and really ought not to have received any money at all. The record, therefore, only shows that the plaintiff* has obtained, through the timidity of the defendant, something which he had no right to obtain. On the other hand, if the plaintiff establishes his cause of action, and proves that the sum paid into Court is not sufficient, or that he is entitled to some relief, such, for instance, as injunction, other than or over and above relief in damages, the judgment will be a general one for him. The only remaining alternative is that of the plaintiff succeeding in establishing his cause of action but failing to prove any damage beyond the sum paid into Court, or to establish any title to relief other than in damages. In that event the issues upon the record will be duly found in accordance with the event, and will sufficiently explain themselves; the general judgment will be for the defendant, and unless the judge otherwise orders, pursuant to Rule 1, Order LV., the defendant will recover the general costs of the cause, while the plaintiff will be entitled to the costs of the particular issues found in his favour. Is there, then, anything inherently unjust in a defendant paying money into Court in respect of a cause of action, which at the same time he by his pleadings denies to exist ? As a general proposition we should answer nothing, while there is much to be said in favour of it. Is it just in principle as regards a defendant, who considers that he has a good defence on the merits, but who is desirous, if possible, of terminating litigation by a payment of money, that he should be forbidden to adopt this prudent course, except under the penalty of a complete admission of a cause of action which he honestly disputes, and with the consequent risk which would attend the trial of the action if the sole issue were as to the snfficiency of the amount paid in ? On the other hand, what is it, if such a course be taken, of which the plaintiff has to complain? In the great majority of actions, whether of contract or tort, it can hardly be suggested that he is in any more embarrassing predicament than that in which he would be placed in an ordinary case of a simple plea of payment into Court, or in a case where inconsistent pleas, not including a plea of payment into Court, are pleaded. In the latter case, he must be prepared to meet the alternative defences ; in the former, he must judge whether it is advisable to proceed with the action at all. The combination of the plea of payment into Court with other defences throws no burden greater in kind upon the plaintiff, although in a degree it may somewhat enhance the difficulty of his position in regard to the course it is advisable for him to pursue.
It may, however, possibly be that in some actions brought to try a right of or in respect of property which is denied, or to establish character which has been assailed, and in actions where the plaintiff is by the statement of defence charged with fraud, and perhaps in some other cases, it would be, as a matter of practice, improper to allow the defence of payment into Court concurrently with other defences. It is not necessary for us to decide this point, or to say whether, upon the case presented to the Queen's Bench Division in Spurr v. Hall, the decision arrived at was a proper one; but we wish to guard ourselves against being supposed to decide that, even in such actions as those to which we have alluded, the payment into Court should not be allowed; and we may add that if in some actions the payment into Court may tend to prejudice, embarrass, or delay the fair trial of the action within the meaning of Order XXVII., rule 1, the circumstances must at least be of a special character to justify the Court in holding that a defendant is precluded from adopting a course which it is, as a general proposition, his legal right to adopt. In the present case, with the alle. gations of fraud withdrawn, the defence amounts to no more than the defendant's saying this : “I deny the existence of any contract between me and the plaintiff, or that if a contract ever existed, any claim has properly arisen against me in respect of it. I allege that the Statute of Limitation is a bar to the action ; but I am content to pay in any event a sum of £130 in respect of any claim which might possibly be established against me ; if that sum be accepted as sufficient, the litigation will terminate ; but if not, then I will fall back upon my other defences, and the question of the sufficiency of what I have paid will only form one of my defences.” What is there in such a course which tends to “prejudice, embarrass, or delay the fair trial of the action ?” We think nothing. To the lawyer's mind there is, no doubt, at first sight, something anomalous in payment by way of satisfaction or amends in respect of a cause of action, the existence of which the defendant by his pleading denies ; but the more we have considered the point, the stronger has become our conviction that there is nothing unreasonable or unjust, and nothing contrary to the letter or spirit of the Judicature Acts or Orders, in a defendant so acting ; and we think that, apart from anything in the Judicature Acts or Orders to compel us to do so, no predilection in favour of the old theories of consistent records should induce us to preclude defendants in actions from saying and doing that which, as practical men, before the action they might reasonably say and do, namely, say that they entirely deny a person's right to sue them, yet pay, or offer to pay, a sum of money as the price of peace and for the prevention of further litigation. For these reasons we think that the appeal should be allowed.”
Though a defendant may thus plead as many inconsistent defences as he pleases, yet in pleading separate and distinct defences care must be taken to make it appear that they really are intended to be separate defences ; and if it remains in doubt whether this is the case, or they constitute but one defence stated in various ways, the pleading is liable to be struck out or amended as embarrassing. This proposition seems to be the effect of the decision in Henry v. Henry (Law Times of 27th of July, 1878), a case decided in the Irish Courts too late to be embodied in the text. There, the statement of defence consisted of three paragraphs, nnmbered consecutively, and it was doubtful whether the three paragraphs constituted three separate defences or a single defence ; and an application was made to set aside the statement of defence as embarrassing, inasmuch as the ylaintiff could not with safety either demur to one paragraph, if the three paragraphs constituted a single defence, or join issue on the whole defence if the paragraphs were to be construed as constituting three separate defences ; but, on counsel for the defendant alleging that the three paragraphs constituted but a single defence, a note to that effect was directed to be inserted in the Order, and the Court made no rule on the motion.
Page 69, 10th line from the top.
Nicholls v. The Hibernian Joint Stock Banking Co., decided in the Irish Courts and reported in the Law T'imes for the 3rd of August, 1878, is to the same effect as Wakelec v. Davis, namely, that a defence founded on the Statute of Limitation cannot, since the Judicature Acts, be raised by demurrer.
Page 71, 3rd line from the bottom. For “Order XXI.,” read “Order XIX.”
Page 89, line 15 from the top. Raising new ground of Claim in the Reply.
O'Farrell v. Stephenson.— This action was for the recovery of land, and the statement of claim alleged a title to the premises, sought to be recovered, in the plaintiff under a lease of the 15th Nov., 1864. The statement of defence alleged that this lease had been surrendered. In the 6th and 7th paragraphs of his reply the plaintiff alleged a title in himself as representing the lessors in a lease of the 29th June, 1875.
Palles, C.B. : We think that the paragraphs objected to are irregular, and that the entire reply must be struck out. The right to recover shown by the reply is wholly different from that made by the statement of claim. In the statement of claim the case made is that the defendant holds under a lease to Claudius Stephenson, but the reply admits that the defendant does not hold under the lease to Claudius, and then the plaintiff seeks to recover under the lease by Claudius Stephenson to John Stephenson, to which he made no reference in his statement of claim, and the interest in which he asserts to be vested in himself. The plaintiff relied on Hall v. Ere, but in that case the allegation in the plaintiff's reply was : “The breach of covenant relied on by you was an act done by your consent.” If in that case the reply had relied upon a new agreement, it would have been more analogous to the present, hut the reply only sought to get rid of something alleged to exist in derogation of the agreement originally sued on. We shall make an order that the plaintiff's reply to the defendant's statement of defence be set aside, and that the plaintiff be at liberty to amend his statement of claim as he may be advised. Fitzgerald and Dowse, BB., concurred.
Page 438. Fraudulent Prospectus. 38th section of the Companies Act of 1867.
By the 30 & 31 Vict. c. 131, s. 38, every prospectus of a company and every notice inviting persons to subscribe for shares in any joint stock company, shall specify the dates and names of the parties to any contract entered into by the company, or the directors, promoters, or trustees thereof before the issue of such prospectus or notice. There have of late been several important decisions upon the interpretation of this statute, but owing to a considerable difference of opinion among the learned judges the law is in an unsettled state. The following propositions, however, are laid down by Mr. Justice Lindley, in the last edition of his work on Partnerships and Companies just published.
"1. The enactment is not confined to contracts to be performed by the company, but extends to all contracts entered into by the persons mentioned, and directly or indirectly affected by the management, capital, or other property of the company. (Trycross v. Grant, 2 C. P. D. 469, now under appeal to the House of Lords ; Cornell v. Hay, L. R. 8 C. P. 328); but not it seems to contracts by which the promoters themselves acquire property which they afterwards sell to the company, if such contracts in no way affect the company itself. (Craig v. Phillips, 3 Ch. D. 722 ; Gover's Case, 20 Eq. 114, 5 Ch. D. 118.) 2. The words promoter, director, or trustee include persons engaged in forming the company, or engaged in inducing the public to take shares in it when formed (Twycross v. Grant, supra); but not persons who are not so engaged when the contract with them is entered into, even although they afterwards became directors. (Gover's Case, 1 Ch. D. 182 & 20 Eq. 114. Sed quære, see 5 Ch. D. 118.) 3. A person who takes shares on the faith of a prospectus not complying with the enactment in question, is not entitled, simply on that ground, to rescind his contract to take the shares (ib.), but is only entitled to maintain an action for damages against the promoters, directors, or trustees who knowingly issued the prospectus. (16., and Twycross v. Grant, supra.)
Page 530.--Claim by Landlord against Tenant for Recovery of Demised Premises
at end of the Tenancy. 1. On the
the plaintiff let to the defendant a house, No. 52, Street, in the city of London, as tenant from year to year, at the yearly rent of £120, payable quarterly, the tenancy to commence on the day of
2. The defendant took possession of the house and continued tenant thereof until the
last, when the tenancy determined by a notice duly given.
3. The defendant has disregarded the notice, and still retains possession of the house.
The plaintiff claims :-
Statement of Defence and Counter-claim. 1. Before the determination of the tenancy mentioned in the statement of claim, the plaintiff A. B. by writing, dated the
and signed by him, agreed to grant to the defendant C. D. a lease of the house mentioned in the statement of claim, at the yearly rent of £150 for the term of 21 years, commencing from the day of -, when the defendant C. D.'s tenancy from year to year determined, and the defendant has since that date been and still is in possession of the house under the said agreement.
By way of counter-claim the defendant
2. Repeats the allegations contained in the statement of defence herein, and claims to have the said agreement specifically performed and to have a lease granted to him accordingly, and for the purpose aforesaid, to have this action transferred to the Chancery Division.
UNDER the new practice the subject of parties has become Importance one of increased importance to the pleader. This is in con- pleader of sequence of the additional latitude allowed in joining parties at rules as to the commencement of the action and the greater modifications parties. permitted during its progress. It is true that in not a few instances before the case comes before the pleader, the parties to the action have been selected, and their names already appear on the writ. Still, in such a case, as in every other, a preliminary question presses upon the pleader before he proceeds to settle the exact form and wording of his pleading, viz., Are the parties in this action properly joined, so as to enable my client most advantageously to present his case to the Court and obtain the greatest possible amount of relief ? If any error has been committed in the joining of the parties, it is his place to have it immediately rectified, for which, as will be seen, there is now provision at almost any stage of the action.
It is proposed in this place to draw attention to the prin- Outline of cipal rules now prevailing on the subject of parties—not to
chapter. deal with the question who are the proper parties in any given kind of action, as whether husband and wife should sue together in such a case, or the husband alone—but assuming that a particular subject-matter of action is obtained, to indicate what classes of persons may sue as plaintiffs or be sued as defendants, and when and how any modifications in the parties to the action may be obtained during the progress of the suit.