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CHAPTER II.

ON THE GENERAL PRINCIPLES AND RULES OF PLEADING UNDER

THE NEW PROCEDURE.

FORMERLY the number of pleadings in any action was almost unlimited - declaration, plea, replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. ; but now there are seldom more than three pleadings in one action, and there cannot be more than four without the leave of the Court. “No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then upon such terms as the Court or a judge shall think fit.” Order XXIV. r. 2. The names given to the various pleadings are also altered, statement of claim is substituted for declaration, statement of defence with or without counter-claim for plea, reply for replication, and finally joinder of issue; and in Order XIX. we have a new code of rules regulating the form of the modified system of pleading. It is not however an exhaustive code upon the subject, and where not inconsistent with any old rule of pleading, that rule will remain. “The same rules Old rules of pleading which prevailed under the old law prevail now, remain in

of pleading unless there is anything in the Judicature Act or in the new force when Orders or Rules which prevents it" (Jessell, M. R., in Evans not incon

sistent v. Buck, L. R. 4 Ch. D. 434); and it follows from this that with the the pleader will still not unfrequently have to refer, upon some point of pleading in a case not provided for by the rules, to a standard work on the principles of pleading like the late Serjeant Stephen's book. In this place it is proposed more especially to deal with the new rules and the decisions upon them, though the old law, where it still prevails, will be referred to when necessary. Probably the most convenient way to present the subject to the reader will be to arrange the rules and decisions and comment upon them under the heads of the particular pleading to which they belong.

new enactments.

Statement of Claim. A concise "Every pleading shall contain, as concisely as may be, a statestatement of the ma

ment of the material facts on which the party pleading relies.” terial facts (Order XIX. r. 4.) This rule applies, it is true, to the statement required.

of defence, counter-claim, reply, or other pleading, as well as to the statement of claim, but it applies in a special degree to the latter. It requires in terms a specific statement of the material facts on which the party relies as founding his right of action ; and, as the rule goes on,“ such statement being divided into par igraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate allegation.” This rule sweeps away the old common indebitatus count which figured in so many declarations. That pleading was couched in the vaguest and most general terms, and could give the defendant

very little information as to the nature of the claim against Common him. Thus a common indebitatus count for goods sold and indebitatus delivered would run : “Money payable by the defendant to count abolished.

the plaintiff for goods sold and delivered by the plaintiff to the defendant" (Bullen and Leake, 3rd ed. 38). There was here no specific statement of the material facts relied upon, not to mention the part of the rule that relates to separate allegations in numbered paragraphs ; and it is needless to repeat that such a pleading is now quite inadmissible.

There is, however, one kind of statement of claim allowed by the new practice which does not altogether comply with the rule under consideration, and this seems the most convenient place for mentioning it, the more so as it is frequently used in the class

of cases which were formerly dealt with by a common indebitatus Notice in count. Order XXI. r. 4 provides: “Where the writ is specially lieu of

endorsed, and the defendant has not dispensed with a statement statement of claim. of claim, it shall be sufficient for the plaintiff to deliver as his

statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, unless the Court or a judge shall order him to deliver a further statement. Such notice may either be written or printed, or partly written and partly printed, and may be in the Form No. 3 in Appendix (B) hereto, and shall be marked on the face in the same manner as is required in the case of an ordinary statement of claim. And when the plaintiff is ordered to deliver such further statement, it shall be delivered within such time as by such order shall be directed, and if no time be so limited, then within the time prescribed by rule 1 of this order." Now by Order III. r. 7 the plaintiff may specially indorse Applies his writ wherever his claim is for a debt or liquidated only to demand only; and the indorsement, besides stating the nature debt or of the claim, shall state the amount claimed for debt, or in liquidated respect of such demand, and for costs respectively. It is sufficiently evident, by a consideration of this latter rule, and then by a reference to the forms of special indorsements given in Appendix A, Part II., sect. 3, that the particulars of demand given to the defendant by the plaintiff when he specially indorses his writ, are more minute than the particulars which were formerly given in a common indebitatus count, and are generally, in a given case of the kind, quite sufficient to inform the defendant of the nature of the plaintiff's claim. This being so, rule 4 of Order XXI. comes in and says-for that is what it amounts to—that the plaintiff may substitute the indorsement on his writ for a statement of claim, by giving the defendant notice in a specified form, subject to a power reserved in the Court of requiring the plaintiff to deliver a further or better statement of claim. It must be carefully noted by the pleader, This notice however, that the notice mentioned in Order XXI. r. 4 with a pleading

and a subthe indorsement on the writ incorporated in it, is a pleading ject of within the meaning of Order XXVIII. r. 1, and therefore demurrer. may be the subject of a demurrer if it does not disclose a good ground of action. This was decided by Mr. Justice Lindley on demurrer in the case of Robertson v. Howard (26 W. R. 683). There the plaintiff claimed 1001. upon an alleged agreement. The particulars of his claim had been indorsed on his writ, and then, under Order XXI. r. 4, a notice had been delivered to the defendant that the plaintiff's claim was that which appeared by the indorsement on his writ. The defendant demurred on the ground that no consideration was shown on the face of the pleading for the alleged agreement. On the hearing the plaintiff contended that an indorsed writ with notice was not a pleading within Order XXVIII. r. 1, such as Robertson could be made the subject of a demurrer. The learned judge,

v. Howard.

Decision of however, held that the demurrer was sustainable, and that Lindley, J. the language of the rule made the notice a claim for all pur

Judgment poses, and one such as could be demurred to.

It being of Lindley, admitted that the specially indorsed writ showed no considera

tion for the agreement, he allowed the demurrer, with leave to amend.

Putting out of account for the present the class of cases just referred to-where a specially indorsed writ may be delivered and then a notice under Order XXI. r. 4—the general rule already stated remains for consideration, viz., that every pleading shall contain a concise statement in numbered paragraphs of the material facts relied on. The extent to which this rule has modified pleading may be illustrated by cases of constant recurrence, where a plaintiff claims damages in respect of personal injuries caused by the negligence of another. Formerly, it was enough to allege as a fact that the defendant conducted himself carelessly and negligently ; now the plaintiff should aver specifically the particular act or acts of negligence and carelessness upon which he relies. But while the plaintiff must allege the facts which constitute his case, the aim of the

rule is that he shall only allege the essential and material facts, Prolixity of and do this as briefly and concisely as possible. Rule 4 of statement Order XIX. says: “ Every pleading shall contain, as concisely as forbidden.

may be, &c.,” and rule 2 of the same order, referring to statements of claim, defence, &c., says: “Such statements shall be as brief as the nature of the case will admit; and the Court in adjusting the costs of the action shall inquire, at the instance of any party, into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same.” Not only, however, are there in Order XIX. these general directions against prolixity of statement, there are likewise a number of rules laid down by which parties are expressly authorized to make certain averments in a more contracted form than perhaps otherwise they would have felt themselves at liberty to do ; and to these rules attention must now be directed.

The first rule of the kind is this :—The evidence of material Rules to

facts averred must not be set out in the pleading. This rule is concise

contained in a proviso to rule 4, already several times referred 1. Evidence to, “Every pleading shall contain, as concisely as may be, a must not

statement of the material facts on which the party pleading be pleaded.

relies, but not the evidence by which they are to be proved,&c.

secure

ness,

It is sometimes a matter of the greatest difficulty to say whether or no a particular fact is a material fact, and therefore pleadable, or merely evidence of a material fact, and on that ground inadmissible ; but the majority of cases admit of no difficulty. A plaintiff is averring that he was injured by the negligence of another. It would be pleading evidence to aver that A. B. was standing by and saw the occurrence. A plaintiff is alleging that he gave notice to another. It is merely evidence to state that he sent the notice in letter which he gave to A. B. to post, and which A. B. did post; and so on in an infinite number of cases.

The case of Blake v. The Albion Life Assurance Company Blake v. (24 W. R. 677)—a case which has since, in consequence

Albion of

Insurance other proceedings, obtained a wide-spread notoriety—is im- Company. portant on this subject. Here an action was brought to recover a sum paid by way of premium to the defendants on a life policy. The statement of claim alleged that the plaintiff had entered into the policy on the understanding, and for the purpose of obtaining a loan from one Howard, which failed owing to the demand of Howard for further securities, which could not be complied with, and that the defendants shared the premium with Howard, who was their agent, and that there was no real intention to lend or to execute a bonâ fide policy. The statement of claim (and this was the part complained of) then went on to aver that in various other instances specified, the defendants and Howard had pursued the same course, and that the defendants were not really an insurance company. Application was made in Chambers to strike out the latter paragraphs on the ground that they were scandalous, irrelevant, calculated to prejudice the action, and also on the ground that they were merely evidence ; and the case was referred by the Judge at chambers to the Court. In delivering judgment, Lord Coleridge, C. J., said: “The action is in substance for Judgment conspiracy with one Howard to defraud the plaintiff. It is of Colein effect a charge of fraud. Is it relevant that the plaintiff ridge, C. J. should in effect state that what was done here was the usual course of the defendants' business, and that they re not really an insurance company? I am of opinion that it is not relevant to the cause of action. If the cause of action is proved, these further statements are not wanted ; if these are

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