Judgment of Lindley, J. poses, and one such as could be demurred to. 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 Order XIX. says: "Every pleading shall contain, as concisely as 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. statement forbidden. The first rule of the kind is this :-The evidence of material facts averred must not be set out in the pleading. This rule is contained in a proviso to rule 4, already several times referred to, "Every pleading shall contain, as concisely as may be, a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved," &c. 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 a letter which he gave to A. B. to post, and which A. B. did post; and so on in an infinite number of cases. Albion The case of Blake v. The Albion Life Assurance Company Blake v. (24 W. R. 677)-a case which has since, in consequence 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 Coleridge, C. J. in effect a charge of fraud. Is it relevant that the plaintiff should in effect state that what was done here was the usual course of the defendants' business, and that they were 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 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 Jones v. Turner. 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. Turner (W. N. 1875, 239) is another case, which 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 (so 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 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 actions for maprosecution sufficient to allege licious want of cause In Aderis v. Thrigley (W. N. 1876, 56), an action for malicious prosecution, the plaintiff in his statement of claim set out the facts in detail in order to show on the face of the claim that there was no reasonable and probable cause for the prosecution. The Master struck out the paragraphs which did this on the ground that they were merely evidence, and on appeal Mr. reasonable Justice Archibald confirmed the order, remarking: "It would 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." generally. Eastern Another case in which a pleading was amended because evidence was pleaded is Askew v. The North Eastern Railway Askew v. Company (W. N. 1875, 238). In this case the owner of the The North 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 may not be 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 pleaded, necessary arrangements and to give all facilities for that purbeing only pose." Application was made to have this paragraph struck 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." evidence. 2. The effect of documents merely to be pleaded. Except where the precise words are material. The next rule having for its object brevity and conciseness of statement is that the effect only and not the whole of documents should be set out in a pleading unless the precise words 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 document or the part so material must be set out at length. This would apply to a case like that of a libel contained in some 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, |