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, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact 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 any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms 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

3. Malice, fraud, &c.,

to be al

leged as a

fact.

4. Notice to be alleged as a fact.

or relation

arising from let

ters, conversations, or other circumstances may be

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 relations than one as to be implied from such circumstances, he may state the same in the alternative." The first part of this rule-viz. the part contained within the first sentencespeaks for itself; and it is manifest that where it is intelligently applied, a pleading which would otherwise be verbose and prolix will be cut down to convenient limits. It would seem that in cases within the second part of this rule where the party wishes to rely in the alternative upon more contracts, &c., than one as to be implied from the circumstances of the case, the facts and 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.

alleged as a fact, and the letters,

&c. may be

referred to generally.

6. Presump

tions of law need not be averred.

Cases illustrative

of prolixity within

the above
rules.

Marsh v.
The Mayor

and Alder

men of Pontefract.

Another rule is: "Neither party need in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side, unless 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.

Marsh v. The Mayor and Aldermen of Pontefract (W. N. 1876, p. 7), affords a good illustration of the kind of prolixity against which these rules are aimed. This was an action to recover the amount charged for work done in building a reservoir for the defendant corporation. It seems that in May, 1874, a contract was entered into between the plaintiff and the defendants for the doing of this work, but this contract fell through and another contract was made in January, 1875, which was the contract sued upon. The plaintiff's statement of claim set

out both the contracts at length; but no breach of the first contract was alleged. There were also a number of allegations in the claim that the defendants had refused to fence, that they had interfered with the work, that the plaintiff was apprehensive of an arch falling, and that his work was exposed to the weather; but none of these things were assigned by the plaintiff as breaches by the defendants of either of the contracts. HudJudgment dleston, B., in giving judgment, said: "The statement of account of Huddlebetween the parties shows that the above claim arises out of the ston, B. second contract. It would have been sufficient to have stated that there was a contract made in May, 1874, between the plaintiff and the defendant for certain works; that on that contract certain disputes arose; and that another contract was then entered into in January, 1875, by which it was agreed that the plaintiff should complete the works in a good and business-like manner. I would undertake to put this statement of claim which now occupies five sheets, which is equal to fifty folios, into half a sheet, which would be equal to about four folios. The first principle of pleading under the Judicature Acts is to avoid prolixity."

Watson v. Rodwell (45 L. J. Ch. 744) was an action insti- Watson v. Rodwell. tuted by a lady against her solicitor to obtain an account of moneys received by him on her behalf and particulars of certain securities executed by her in his favour, and for damages for his alleged misconduct in managing her affairs. The statement of claim gave a lengthy account of the transactions in which the defendant had been engaged for the plaintiff, alleging various acts of misconduct, and stating in detail a large number of payments made by the defendant on behalf of the plaintiff, and alleging that they were improperly made. Paragraph 51 was as follows: "It has been the habit and practice of the defendant to impose upon the plaintiff's inexperience and credulity by an affectation or pretence of indignation when any inquiries were made or questions asked of him touching the affairs of the testator, and whenever such inquiries were made the defendant has diverted the same by simulation of being offended at doubts of his honour, and by profuse assurances that if everything were left in his hands it would be perfectly right." Malins, V.-C., before whom the case first came on an application to have the statement of claim amended under

D

Davy v.
Garret.

of James, L. J.

Order XXVII. r. 1 as embarrassing, allowed all the claim to stand except the paragraph above set forth, which was struck out. On appeal, the Court of Appeal, though they thought other parts of the claim unnecessarily prolix, refused to interfere with the ViceChancellor's discretion. Mellish, L. J., remarked: "In an action of this sort against a solicitor for negligence, the facts must be to a certain extent stated, but there should be no rhetoric."

Davy Brothers v. Garrett (38 L. T. N. S. 77) is an instructive case on this head. It is impossible within reasonable limits to give any summary of the statement of claim, which occupied forty-three printed pages. The reader is referred to the Law Times' report, where an epitome of it extending over five or six columns is given. Vice-Chancellor Hall, who first heard an application to have the claim struck out under Order XXVII. r. 1 as embarrassing, although he thought it prolix, refused the application; but on appeal the Court of Appeal ordered it all to be struck out, with leave to the plaintiff to deliver an amended statement of claim.

In giving judgment, James, L. J., said he was startled to see a document of this kind put forward under the new system of procedure. . ... Nothing could be more embarrassing than a quantity of statements with which the defendant did not Judgment know what to do. A number of facts, many of which appeared to have no connection with the defendants, were stated at great length, and it was impossible for the defendant, without knowing the inferences intended to be drawn from such facts, to know what he was to do with them. Was he to deny or admit them? If he admitted them, how was he to know that he might not be prejudiced in some way by such admission at the hearing of the action? This was an embarrassment to which no one had a right to expose his adversary in this Court. Under the new practice established by the Judicature Acts, it was essential that the statement of claim should be as brief as the nature of the case would permit, and that all irrelevant matter should be excluded. In this case many of the statements introduced were quite useless, and those which were useful were not only unnecessarily long, but were mixed and confused to such an extent that it was almost impossible for the defendants or any one else to say what was the precise nature of the case they had to meet. First there was a statement showing how

L. J. con

tinued.

Messrs. Froom & Co. became bankrupts in Russia, followed by a balance-sheet. It was stated that this balance-sheet was set out in order that it might be contrasted with some statements in a letter subsequently set out, and that some conclusion could be drawn from such contrast. How any wrong was intended to be made out to have been done by the defendants or any of them did not appear, nor did the balance-sheet appear to have any connection with the relief claimed. Then the 9th paragraph contained an allegation that M. Lischine was Froom's legal adviser on the matters therein mentioned. That was a James, perfectly innocent transaction; but on being asked why it was inserted, the plaintiff's counsel said that in another paragraph the same gentleman was stated to be employed by the defendants as their legal adviser, and that a case of fraud and collusion was to be inferred from the two together. But how were the defendants to know what fraud and collusion were intended? Then there was a statement of the result of a meeting of creditors at St. Petersburg, and the powers and duties of the Russian administrators. Why was that inserted? Not for anything contained in the account of such proceedings, but for something not contained in them; that is, because they did not authorise the administrator to sell. The defendants might well ask what they had to do with that. Proceeding further, his Lordship continued, under the new system it was positively forbidden to plead matters of evidence. The object of the new provisions was to get rid of the old charges and countercharges. It was entirely premature to deal with matters of evidence until it was ascertained what were the definite issues raised in the action. The statement of claim ought to state the facts constituting the wrong of which complaint was made, and the damage resulting from such wrong; but no evidence ought to be introduced into the pleadings. What had the defendants to do with all these letters which passed between some of the defendants and some other persons who were neither the plaintiff nor in the same category with the defendants, and of which the claim was full?

L. J.

Baggallay, L. J., said prolixity of pleading might be of two Bagallay, kinds: first, the prolixity might consist in necessary facts being stated at undue length; and, secondly, it might consist in the statement of unnecessary facts. The first kind of prolixity was