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embarrass. the rules intended to prevent embarrassment shall be adhered ing plead.
to. On this very point, James, L. J., remarked in Davy v. ing.
Garrett that the Court could not be too strict in taking care that the pleadings should not degenerate into the oppressive character of some of the pleadings in the old Court of Chancery. “We must not,” added his lordship, “ be driven to confess, as Oliver Cromwell did with a sigh, in reference to his ineffectual attempt to reform the law and procedure of this country, that the sons of Zeruiah are too hard for us. For my own part I do not mean to succumb to their devices."
As a sequel to the rule lately under consideration, that a statement of claim must contain a concise statement the material facts relied upon, is this further rule :- A statement of claim should not contain inferences and conclusions of law. The
facts merely should be stated, and the Court left to draw its own Inferences conclusions as to the law. Lord Justice Mellish refers to this and con
rule in Watson v. Rodwell (45 L. J. Ch. 745). He said he clusions of law not did not agree with what the Vice-Chancellor was reported to to be
have said that what would have been properly admitted in the pleaded.
old bill was still admissible in the new pleadings. He thought that what were called “ the charging parts," which were merely the pleader's view of the equity, should be omitted. And so in the case of Hanmer v. Flight (35 L. T. N. 8. 127 ; 24 W. R. 346) Brett, J., in giving judgment, said: “This case is one which shows clearly some of the advantages which have been obtained by the passing of the Judicature Acts. Pleadings now
are no longer technical, in the sense that they must show the Hanmer v. precise legal form which the plaintiff's demand must take; they Flight.
now show the facts, and then it is for the Court, from the facts, to decide upon the legal result of these facts. In this case it is clear that something is due from the defendant to the plaintiff, though it may not be so clear what is the legal relation between the parties, or what would have been the exact form of pleading under which the amount due would under the former system of pleading have been recovered." This case was afterwards overruled in the Court of Appeal (see 36 L.T. N. S. 279) upon the facts as set out in the pleading, but the decision of the Court of Appeal does not seem to affect the correctness in
point of law of the remarks of Brett, J., above quoted. Plaintiff Another rule closely allied to the one last stated is that a plaintiff in his statement of claim need not state under what par- need not ticular form of action he is proceeding, nor in what particular what form legal relation he claims to stand to the defendant. In support of action he and explanation of this rule the remarks of Brett, J., in Hanmer ing, nor v. Flight are referred to (ante, p. 38); but the principal case upon in what the point is the Metropolitan Railway Co. v. Defries (36 L. T. lation he N. S. 150). The whole of the statement of claim in this case is stands to set out in the text at pages 629—632, post, to which the reader fendant. is referred for the facts. The defendants demurred, and the case came before Mellor, J., and Field, J., in the Queen's Bench Division. Both learned judges concurred in disallowing the demurrer, and in giving judgment Field, J., said: “The defendants do not deny their occupation, nor the fairness of the sum claimed, nor the payment to them of the interest agreed ; they only say this particular form of action cannot be adopted under the circumstances stated in the claim. It is a mistake to suppose that every element in the action for use and occupation must now be contained in a statement of claim in order to enable a plaintiff to recover. We are here to see if the plaintiff shows any cause of action, either in law or equity. The contract stated, coupled with the fact, also stated, that the defendants have been in occupation, is sufficient to raise the inference of such use of the premises as that contemplated in the agreement for which the defendants were to be subject to rent. It seems to me that our judgment should be for the plaintiffs for the amount claimed.” This decision of the Queen's Bench was upheld by the Court of Appeal (36 L.T.N. S. 495).
“ Where the plaintiff seeks relief in respect of several distinct Plaintiff claims or causes of complaint founded upon separate and dis- suing in
respect of tinct facts, they shall be stated as far as may be separately and separate distinctly.” (Order XIX. r. 9.) By Order XVII.r. 1 a plain- founded tiff is allowed to unite in the same action, and in the same on separate statement of claim, several causes of action ; and this rule merely means that where a plaintiff avails himself of Order separately. XVII. r. 1, he must let all the averments that are essential to each cause of action follow each other in order, and not mix up indiscriminately throughout the statement of claim the averments relating to one cause of action with those relating to another cause of action. The prayer for relief, however, does not follow on the averment of the facts which support it, but
facts must state them
comes in at the end of the claim ; and the case of Watson v. Hawkins (24 W. R. 884) is an authority for saying that facts stated in a pleading need not be assigned to any particular prayer, for so long as they tend to show that the party relying
on them is entitled to any one of the reliefs claimed, the Watson v. paragraph containing them is not demurrable. Lord ColeHarkins.
ridge, C. J., in this case said: “I thought at first that a defendant was entitled to say, ‘I want to know to which portion of your prayer you apply such and such a paragraph of
But that is not so. By Order XXVIII. r. 1 the ground of a demurrer to any pleading or to any part of a pleading must be that the facts alleged therein do not show any cause of action, &c., to which effect can be given by the Court as against the party demurring.' Hence so long as a paragraph supports some one or more of the claims in the prayer, it is not demurrable. The plaintiff is not bound to assign such and such paragraphs to such and such a prayer. He states all the facts that he deems material, and then he asks for such and such
and if each fact set out tends to show that he is entitled to some relief, and that relief is asked for in one of the prayers, the paragraph setting out that fact must stand.” And Lindley, J., expressed an opinion that unless the party demurring can show that the paragraph demurred to entitles the party pleading it to absolutely no relief, the demarrer must fail. As long as the facts entitle him to some relief, he is entitled to set them out whether he has asked for the proper
relief or no. Scandalous Another rule to be borne in mind in drawing a statement of matter
claim is that no averment which is scandalous must be intromust not be pleaded. duced. If this rule is violated the offending part of the claim
may be struck out under Order XXVII. r. 1; but an averment is not scandalous within the meaning of this rule merely because it makes a serious and in one sense scandalous imputation upon another. An imputation of the kind is only scandalous when, in addition, it is irrelevant to the subject matter of the action. In the case of Blake v. Albion Life Assurance Co. already referred to (ante, p. 27), Lord Coleridge at the end of his judgment said: "Our present decision must not be taken
to prevent in any way any scandalous matter from being pleaded, Except
if it be relevant to the issue.” Of course any matter pleaded
which is irrelevant to the issue may be struck out on the ground where it
is relevant of prolixity; but probably on the principle De minimis non curat ler, where the irrelevant matter in a particular pleading is issue. in quantity only trifling, the Court will not interfere, but however trifling the amount of the irrelevant matter which is also scandalous the Court will interfere.
The plaintiff in his statement of claim need not and should not Facts not plead any facts in anticipation of and to meet the defence.--This to be
stated by was a rule of pleading prior to the Judicature Acts (see way of anStephen's Principles of Pleading, 7th ed. 290), and after some ticipating
defence. discussion it has been finally settled to be the rule under the new system. The point first arose—at least in a measure—in Earp v. Henderson (L. R. 3 Ch. D. 254) before Bacon, V.-C. There the plaintiff in his statement of claim averred that the plaintiff, on the 22nd October, 1867, let to the defendant the Prince of Wales Theatre, Liverpool, for ten years at an annual rent of 1,0501., and that there was an agreement between the parties that in the event of the defendant disposing of the lease with the plaintiff's sanction he should pay to the latter half the sum which might be realised. It then went on that in June, 1873, the plaintiff sold the theatre to one J. H. A., and that the defendant then surrendered to the said J. H. A. all his interest in the theatre for 5001., and the prayer was for a declaration that the defendant was a trustee for the plaintiff for 2501., and an order upon the defendant to account for and pay the said sum to the plaintiff with interest. The defendant in his statement Earp v. of defence admitted the agreement of the 22nd October, 1867,
Henderson. and also admitted that he had surrendered his interest in the theatre to J. H. A., but said that the sum he had received after deducting certain costs was only 3111., and he paid half that amount into Court. The plaintiff in his reply first of all joined issue on the defence, and then went on :
“The plaintiff says that if the defendant only received l., as in the statement of defence mentioned, it was because the said J. H. A., in the plaintiff's claim mentioned, claimed from the defendant damages for breach by the said defendant of an agreement made [here followed a description of the agreement], and as a compromise of such claim the said defendant allowed the said J. H. A. to set off or deduct from the said sum of 5001. the sum of 1, in discharge of the liability of the said defendant to the said
Hall v. Ere.
J.H.A. The plaintiff has nothing to do with the said liability so compromised as aforesaid, and claims the moiety of the said sum of 5001.” The learned Vice-Chancellor held that this reply was erroneous in form, and that the matter alleged in it should have been introduced into the statement of claim by amendment of the latter. He however confined his decision to the facts of the particular case.
Shortly after this decision the case of Hall v. Eve (L.R. 4 Ch.D. 341) came before the same learned judge. The plaintiff in this case claimed specific performance of an agreement dated 5th March, 1875, made between the defendants Eve and Whiffen of the one part, and the defendant Lane of the other part, whereby Eve and Whiffen agreed to grant a lease of certain building land to Lane for ninety years, with an option to Lane of purchasing the freehold at a price therein mentioned before the 25th of Dec., 1875. The plaintiff in his statement of claim alleged that Lane had transferred his interest to the plaintiff, who gave notice of his intention to purchase, but that Eve and Whiffen refused to execute a conveyance to him. The defendants Eve and Whiffen, by their statement of defence, alleged that before the transfer of the agreement to the plaintiff the defendant Lane had committed certain breaches of his contract which gave the defendants Eve and Whiffen a right to put an end to the agreement, which they had accordingly done. The plaintiff then, by his reply, pleaded that if (which he did not admit) there had been any default or breach of the agreement by Lane, the defendants Eve and Whiffen had waived it ; and as to the provision which was alleged to have been broken, he pleaded that if it had been broken by Lane, the defendants were not entitled by reason of such breach to determine the agreement, for reasons which he stated. He also alleged concealment and false representation and want of equity; and lastly he joined issue with the defendants upon their statement of defence. The defendant moved that the reply might be set aside as erroneous in form ; and the learned Vice-Chancellor acceded to the application on the ground that all the facts stated in the reply should have appeared in the statement of claim either originally or by amendment. The plaintiff appealed, and the Court of Appeal reversed this decision.
James, L. J., said: “The question is this. The plaintiff in