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Mr. Cookson submitted to me that it was a great hardship on a defendant who was asked to perform a parol agreement, the terms of which were not accurately stated by the plaintiffs, to be compelled by his own pleadings to state what the terms were. It would be a very extraordinary notion of the administration of justice to treat such a complaint seriously. It is the very object we have always had in view in pleading to know what
the defendant's version of the matter is in order that the parties Object of may come to an issue. If you have an agreement for a lease rule is not containing fifty stipulations made by parol, and the plaintiff so much that the and the defendant both agreed that there was such an agreedefendant
ment, and, except as to one of the fifty stipulations that it had should deny plain- been carried out and acted upon, what would be said of a Court tiff's state
of Justice if it allowed the defendant simply to deny that there ment, but should was any such agreement as alleged, so that the plaintiff should give his
be compelled to come to trial with witnesses to prove every one own version. of the fifty stipulations of the agreement. Of course the deIllustra- fendant ought to admit that forty-nine were made, and deny tion.
the fiftieth, and then the cause would come to trial upon the question whether the fiftieth stipulation alleged did or did not form part of the agreement. That is not hard upon a defendant: it is the proper mode of carrying on the administration of justice. That is the meaning of the rules, and I have said as much as I have done that solicitors may be aware in future that I shall insist upon the rules of pleading being complied with.”
His Lordship then entered final judgment for the plaintiff. Byrd v. Byrd v. Nunn (L. R. 5 Ch. D. 781) is a case to a like effect. Nunn to
It was an action for specific performance. The plaintiff effect.
delivered a statement of claim, of which the following is the paragraph material to the present purpose : "On the 20th day of Feb., 1865, the defendant's predecessor in title, John Hutley, of 1 and 2, High Street, Bloomsbury, in the county of Middlesex, provision merchant, agreed by writing under the hand of his agent, thereunto lawfully authorized by writing, with the plaintiff's predecessor in title, Anthony Byrd, of 14, Wallbrook Road, East Hill, Hoxton, in the same county, to grant to the said Anthony Byrd a lease of the freehold house and premises No. 77, Cross Street, late 30, Cross Street, Islington, for a term of twenty-one years from the 29th day of September, 1865, at a rent of 60l. per annum clear.” The first paragraph of defendant's state
ment of defence was as follows: “The defendant denies that on the 20th of February, 1865, the defendant's predecessor in title, John Hutley, of Nos. 1 and 2, High Street, Bloomsbury, in the county of Middlesex, provision merchant, agreed by writing under the hand of his agent, thereunto lawfully authorized by writing, with the plaintiff's alleged predecessor in title, Anthony Byrd, of 14, Wallbrook Road, East Hill, Hoxton, in the same county, to grant to the said Anthony Byrd a lease of the freehold house and premises No. 77, Cross Street, late 30, Cross Street, Islington, for a term of twenty-one years from the 29th day of September, 1865, at a rent of £60 per annum clear. On the 20th of July, 1865, the said John Hutley was of unsound mind, although not so found by inquisition, and he was wholly incapable of lawfully authorizing, and did not lawfully authorize, any person as his agent to sign any such agreement as is in the plaintiff's statement of claim alleged." The defendant then denied several other allegations, and alleged that the plaintiff had been in possession as a yearly tenant only; and the 5th paragraph was as follows :-“The defendant denies that any agreement for a lease of the said premises to the plaintiff or his alleged predecessor in title was ever made, entered into, or signed by the said John Hutley or any person by him lawfully anthorized.” On the action coming on for trial, plaintiff's counsel contended that on the pleadings the defendant could not deny the agreement alleged in the claim, and that the agent was authorized to make it.
Fry, J.: “ This is a claim for specific performance of an Judgment agreement entered into in 1865 by the agent of a person named of Fry, J. Hutley, and the present question is simply whether the statement of defence has raised the issue that the agent was in fact not anthorized by Hutley, and in my opinion that issue is not raised. The statement of defence is in these terms [his Lordship then read the first paragraph). It is evident that a denial of the allegation in the claim is justified if any one of several circumstances is not true. For instance, if the agreement was entered into on the 19th of February instead of on the 20th, or if John Hutley had not been of Nos. 1 and 2, High Street, Bloomsbury, and so of many other circumstances. This appears to me exactly a case within Order XIX., rule 17, and there is no sufficient denial of any particular allegation. But in
Judgment the latter part of the paragraph I find an allegation of the fact of Fry, J.
that Hutley was of unsound mind, and that is followed by a conclusion that in consequence of his being of unsound mind he was incapable of authorizing an agreement. This is a substantial answer, and in my opinion does satisfy the rule, assuming that the point on which the defendant means to rely is the unsoundness of Hutley's mind. If the defendant meant to rely on anything more, I think that a substantial answer has not been given. The statement of defence denies several facts, and follows that denial by an allegation of one particular fact which justified that denial, but there is no allegation of any other particular fact which would justify any other part of that denial. There is no doubt a denial in paragraph 5 that any agreement
for a lease had been made or entered into by John Hutley, or by Denial that any person lawfully authorized by him ; but that does not as it agreement stands enable the defendant to go into evidence as to the into by de- authority of the agent, assuming the soundness of the mind of fendant or Hutley. It appears to me that there are several possible facts son author- which might justify the denial. It would be justified first if ized by
John Hutley was of unsound mind ; secondly, if though of him not a sufficient sound mind, he did not authorize the agent to contract; thirdly, denial of
if the agent, though authorized, could not for some reason lawallegation that he fully contract. I find, therefore, at least three facts which would authorized justify the denial, and one of them alone, viz., the incapacity of a particular person. Hutley, alleged as a fact. I come, therefore, to the conclusion
that that denial, being justified by a fact specifically alleged, must be taken to refer to that specific fact, and not to the others. If the defendant desired to set up any other matter of fact which would have led to the same conclusion, he should have done so substantially and specifically, and should have called the attention of the plaintiff to that fact." His Lordship refused leave to amend the statement of defence by adding an allegation
that the agent was not authorized to make the agreement. Judgment The case went to the Court of Appeal, which confirmed confirmed the judgment of Mr. Justice Fry. In giving judgment, , on appeal.
Thesiger, L. J., made the following remarks. He said: “The question remains whether the defendant has sufficiently pleaded in his statement of defence the point which he now desires to raise. I agree with the learned Judge that he has not done so. A variety of matters are set forth in the statement of claim showing the plaintiff's cause of action, namely, that the agreement was made, that it was in writing, and that it was made by an agent properly authorized. Under the old common law system of pleading, all those matters necessary to be stated might have been put in issue by pleading the general issue, which would have had the effect of traversing all the particular allegations. But that system of pleading, while it tended to raise clear issues, had the disadvantage that the plaintiffs had no means of knowing what the real point to be tried was. The new rules were expressly framed to prevent that, and to make the defendant take matter by matter and traverse each of them separately. Has the defendant done this in the present case ? He seems to me to have fallen back into the old system of common law pleading, except that, instead of pleading non assumpsit, he has amplified that plea by traversing as a whole the several allegations of the plaintiff in such a manner as, but for the present rules of pleading, would put him in the position of being able to disprove any one allegation without the others. I think it is a question whether the 1st paragraph of the Judgment defence ought not to have been struck out as embarrassing. of Thesiger, But I think that on a fair construction of that paragraph, the defendant may be taken to have meant that the agreement was not made by an agent properly authorized, because the principal was of unsound mind, and therefore I agree with the Judge that the issue of the authority of the agent, apart from the incompetency of the principal, was not raised by that paragraph. As to the 5th paragraph, I at first thought there was some force in Mr. Fischer's argument that it sufficiently raised the question of agency; but when that paragraph is looked at attentively, it is clearly contrary to the rules which have been drawn up to prevent that kind of pleading. There is no specific fact traversed by that paragraph, but as in the case of the 1st paragraph, so the 5th is also open to the remark that under it the defendant might have set up either, first, that there was no agreement in fact; or secondly, that it was not in writing ; or thirdly, that the agent had no authority; or fourthly, that the principal was not competent to give authority, being of unsound mind-the very thing that the rules were intended to prevent. As the unsoundness of mind was the substantial defence set up, I think we must read the statement
of defence altogether as referring to that ground of defence, and must conclude that it does not raise the general issue that
there was no agreement by an agent duly authorized.” Harris v.
In Harris v. Gamble (38 L. T. N. S. 253), to a statement of Gamble.
claim for specific performance the defendant delivered a statement of defence in the following words : “ The defendant puts the plaintiffs to proof of the several allegations contained in their statement of claim.” Fry, J., held that this was not a proper mode of denying the averments in the claim, and that, acting upon rules 17 and 20 of Order XIX., the allegations of fact contained in the statement of claim must be taken to be
admitted, and he gave judgment accordingly. Tildesley
Tildesley v. Harper (38 L. T. N. S. 60), also decided by v. Harper. Fry, J., is a very strong case, from the circumstance that a
statement of claim which charged fraud was taken to be admitted on the ground of the imperfection of the form of the denial. It was an action to set aside a lease of certain trust property, improperly given, as was alleged, by the trustee Matthew Tildesley to the defendant. The claim averred inter alia : “ The defendant, knowing as he did that the plaintiff M. T. was in straitened circumstances at the time, offered him the said M. T. a bonus, or in fact a bribe of £500 if he would grant him the said lease for twenty-one years at the rent of £200, and arranged to give him such sum of £500 if he would grant such lease ; and the plaintiff, M. T., being at the time very hard pressed for money, accepted such offer, and assented to such arrangement, and in fact granted the defendant the said lease in consideration of such bribe and in pursuance of such arrangement. And the defendant has, in pursuance of such arrangement and in fact, paid to the plaintiff M. T. £200, part of the said £500." The 7th paragraph of the defendant's statement of defence was as follows : “ The defendant denies that he knew that the plaintiff M. T. was in straitened circumstances at the time. The said defendant denies that he offered the said plaintiff personally a bonus and in fact a bribe of £500 if he would grant him the said lease for twenty-one years at the rent of £200, and arranged to give him such sum of £500 if he would grant such lease, and that the plaintiff, being at the time very hard pressed for money, or in fact accepted such offer, and assented to such