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proved, unless the rest of the statement is proved, there is no cause of action, and these statements must therefore be irrelevant. The truth is, the statements are not of facts which are material to be proved, for the reasons which I have stated. I am also of opinion that they contain statements which are not even evidence in chief. It is in effect saying that there is fraud here because there has been fraud in other cases.” Mr. Justice Brett based his judgment, which was to the same
effect, on grounds more important to the subject we are now Judgment considering. His Lordship said: “I am of opinion that the of Brett, J. paragraphs objected to must be struck out, as not being ad
missible in pleading. I take it that the legal formula under which they come is this, that they are irrelevant, and also that they are mere evidence. In every case some facts must be proved; others are merely evidence of facts which must be proved; others, again, are within both descriptions. Those which are to be proved, or which are both to be proved and are also evidence of other facts, may be pleaded, but if they are only evidence of facts to be proved, they are mere evidence, and cannot be pleaded. The facts in discussion in the present
case are mere evidence, and therefore not pleadable.” Jones v.
Jones v. Turner (W. N. 1875, 239) is another case, which Turner.
illustrates when a pleading is objectionable on the ground of the prolixity occasioned by introducing irrevelant matter and pleading evidence.
The plaintiff sought in this action to recover from the defendant commission on the sale of the defendant's interest in a quarry. After various paragraphs, to which no exception was taken, the claim went on : “6. The plaintiff thereupon exerted himself, by advertising and otherwise, to secure a purchaser of either the whole or the one-half share of the defendant's interest in the said quarry, and, amongst others, introduced to the defendant, a Mr. Frederick Wallace, who, in conjunction with a Mr. Newman (50 the plaintiff has been informed by the defendant) purchased from the defendant one half-share of the defendant's interest in the said quarry. 7. But though the defendant has stated to the plaintiff the fact of the sale as alleged in the 6th paragraph, yet the defendant refuses to tell the plaintiff the exact sum for which or the precise terms upon which such sale has been effected, and has thereby prevented and still prevents the plaintiff claiming a definite sum as due to him by the terms of the agreement set out in the 3rd and 5th paragraphs. 8. Whether the defendant has or has not sold his whole or part interest in the said quarry to the said Mr. Frederick Wallace separately, or in conjunction with the said Mr. Newman, the plaintiff cannot, except as explained in the 6th paragraph, state. The plaintiff has, however, every reason for believing that the defendant has in fact made such a disposition of his property to some one or more of the persons introduced by the plaintiff to the defendant as to entitle the plaintiff to the reward promised and agreed for either in the letter aforesaid of the 2nd of July, 1875, or in that of the 3rd of July, 1875, or both." Application was made under Order XXVII. r. 1 to have the above paragraphs struck out ; and Mr. Justice Quain affirmed Judgment the decision of the Master who made the order. In giving I.
of Quain, judgment his Lordship remarked : “ Paragraph 6 states what the defendant told the plaintiff. That is not proper pleading. It would have been easy for the plaintiff to state that Newman and Wallace bought the half-share, and then to have claimed his commission. He could then have administered interrogatories."
In Aderis v. Thrigley (W. N. 1876, 56), an action for ma- In actions licious prosecution, the plaintiff in his statement of claim set for ma
licious out the facts in detail in order to show on the face of the claim
prosecution that there was no reasonable and probable cause for the prosecu- sufficient to tion. The Master struck out the paragraphs which did this on want of the ground that they were merely evidence, and on appeal Mr. reasonable Justice Archibald confirmed the order, remarking : " It would
generally. have been sufficient to have stated simply that there was no reasonable or probable cause. What is the use of stating such facts as that the plaintiff denied the charge of stealing which the defendant made against him? That is what everyone does when charged with theft. I think the Master has reduced the statement within proper limits."
Another case in which a pleading was amended because evidence was pleaded is Askew v. The North Eastern Railway Askew v.
The North Company (W. N. 1875, 238). In this case the owner of the
Eastern Redheugh estate brought an action for damages for an inter- Railway ference with his right to carry coal over a quay, for a declaration Company. of his and the defendants' respective rights, and for an injunc
tion against the defendants. One paragraph of the plaintiff's claim stated that: “The defendants do not dispute but have in their correspondence with the plaintiff's solicitors admitted that the plaintiff and his tenants are entitled to have access from the Redheugh estate to the quay for the carriage,
storage, and shipment of manure, dung, and goods of a like Admissions description, and have expressed their willingness to make the may not be pleaded,
necessary arrangements and to give all facilities for that purbeing only pose.” Application was made to have this paragraph struck evidence.
out, and Quain, J., in giving his decision, said: “This paragraph must be struck out. Can you point out even in the forms any precedent for such a paragraph as this ? Can you point out any section in the Act that enables you to plead admissions made by the other side to your solicitors? You put the defendants in the difficulty of not knowing whether to traverse the admission. Conciseness is intended by these rules to be the
very soul of pleading." 2. The effect The next rule having for its object brevity and conciseness of docu
of statement is that the effect only and not the whole of documents merely to ments should be set out in a pleading unless the precise words be pleaded. are material. “ Wherever the contents of any document are
material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.” (Order XIX. r. 24.) It should be noted that the terms of this rule are not imperative. It is not declared that documents must only be summarized, but that they should be; and the effect of setting them out at improper length is that the pleading may be objected to as prolix, and consequences to be afterwards indicated follow. There is, as has been seen, the saving clause, that where the precise words
of the document, or any part thereof, are material then the docuExcept where the ment or the part so material must be set out at length. This precise
would apply to a case like that of a libel contained in some words are material.
letter or other written document. There the precise words would have to be set out, as was always the case, and no summary of the effect of the document or letter would do. There is a considerable class of cases where the precise words of several parts of a document are material, but there are other parts of the same document where the precise words are not material,
as in the case of actions, on bonds, charter-parties, or policies of insurance; then it becomes a question whether all the document should be set out, or an attempt made to give an abstract of it and to separate the essential from the unessential parts. Certainly the safer way, apart from the question of whether the pleading will thereby be exposed to an amendment for prolixity, is to take the former course ; and on the whole it is submitted that where the precise words of several portions of a document are material and the other parts of it are not altogether irrelevant to the subject matter of the action, the pleader does not offend against this rule if he sets out the whole document.
The next rule is :“Wherever it is material to allege malice, 3. Malice, fraudulent intention, knowledge, or other condition of the mind fraud, &c., of any person, it shall be sufficient to allege the same as a fact leged as a without setting out the circumstances from which the same is to be inferred.” (Order XIX. r. 25.) To set out the circumstances from which the inference of malice, knowledge, &c., is to be drawn, would be in violation of rule 23 and would be to state evidence. In the case of Hodges v. Hodges, 24 W. R. 293, the plaintiff alleged a number of facts from which fraud in the defendant might be inferred, but there was in addition no express averment that he had been guilty of fraud, and without going into the question which was not before him, whether the pleading was prolix under this rule, the Master of the Rolls allowed a demurrer to it. He said that although it was quite clear enough was alleged to enable anyone to understand what the plaintiff intended to charge the defendant with, yet technically the allegations were not complete. If in this case the plaintiff had generally charged the defendant with fraud under rule 25, instead of giving a prolix statement of facts from which a jury might infer what he did not expressly charge, his statement of claim would no doubt have been good.
Another rule is: “Wherever it is material to allege notice to 4. Notice any person of any fact, matter, or thing, it shall be sufficient to to be al.
leged as a allege such notice as a fact, unless the form or the precise terms fact. of such notice be material.” (Order XIX. r. 26.)
Again, with the same view of securing conciseness of statement, comes rule 27: “Wherever any contract or any relation between any persons does not arise from an express agreement, but is to be implied from a series of letters or conversations, or
otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances, without setting them out in detail.
And if in such case the person so 5. Contract pleading desires to rely in the alternative upon more contracts or relation
or relations than one as to be implied from such circumstances, arising from let. he may state the same in the alternative.” The first part of ters, con
this rule—viz, the part contained within the first sentenceversations, or other
speaks for itself; and it is manifest that where it is intelligently circum
applied, a pleading which would otherwise be verbose and prolix stances
will be cut down to convenient limits. It would seem that in alleged as
cases within the second part of this rule where the party wishes a fact, and the letters, to rely in the alternative upon more contracts, &c., than one as &c. may be to be implied from the circumstances of the case, the facts and generally. circumstances must usually be set out in a little more detail.
It would scarcely be artistic to allege as a fact one contract and then immediately afterwards a totally inconsistent contract as having been made at the same time. The better course would be to state the essential facts, and then say that the plaintiff or defendant, as the case might be, would contend that so-and-so was the contract which resulted from them, or in the alternative that-state the other possible contract—was the contract
produced. 6.Presump- Another rule is: “Neither party need in any pleading allege tions of law need
any matter of fact which the law presumes in his favour, or as not be to which the burden of proof lies upon the other side, unless averred.
the same has first been specifically denied.” (Order XIX.r. 28.) And then the rule goes on to give as an example of the application of the rule, the case of consideration for a bill of exchange, where the plaintiff sues only on the bill and not for
the consideration as a substantive ground of action. Cases il. Marsh v. The Mayor and Aldermen of Pontefract (W. N. lustrative of prolixity
1876, p. 7), affords a good illustration of the kind of prolixity within against which these rules are aimed. This was an action to rethe above
cover the amount charged for work done in building a reservoir rules.
for the defendant corporation. It seems that in May, 1874, a Marsh v. The Mayor contract was entered into between the plaintiff and the defendand Alder
ants for the doing of this work, but this contract fell through men of Ponte. and another contract was made in January, 1875, which was fract.
the contract sued upon. The plaintiff's statement of claim set