COMMENCEMENTS AND TERMINATIONS OF
PLEADINGS (a).

Ordinary Form of Commencement and Termination of a State- Ordinary

ment of Claim.

In the High Court of Justice, Queen's Bench (or Common Pleas or Exchequer) Division.

187-.

No.

form of commence

ments, &c., of plead

[Here add according to ings.
the figure and number
on writ.]

1, 2, &c. [Here insert the body of the pleading.]

The plaintiff claims [the particular prayer or claim follows]. The plaintiff proposes that this action should be tried in London (or at the assizes to be holden for the county of -) (c).

Delivered (d) this day of

Messrs. Edwards and Rook,

187-, by

St., in

the City of London, plaintiff's solicitor,
or, the plaintiff in person.

(a) The rule of the new practice which regulates the formal part of Order XIX. all pleadings is Order XIX. r. 7.

66

Every pleading in an action shall be marked on the face with the date of the day on which it is delivered, and with the reference to the letter and number of the action, the Division to which .. the action is assigned, the title of the action, the description of the pleading, and the name and place of business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same, if he does not act by a solicitor."

r. 7.

Pleadings to be

delivered.

Pleadings are not filed under the new system, but delivered in the first instance, between the solicitors of the parties. "Every pleading. shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered by any party, then such pleading, shall be delivered by being filed with the proper officer " (Order XIX. r. 6); but by Order XXXVI. r. 17, amended by rule 17A, "the party entering the action for trial shall deliver to the officer two copies of the whole of the pleadings in the action, one of which shall be for the use of the judge," and by Order XLI. r. 1, "the party entering judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons." Owing to the greater When length to which common law pleadings now frequently run, a direction is pleadings given as to their being printed. By Order XIX. r. 5 and 5A, "every to be pleading above ten folios of seventy-two words each must be in print; below that it may be either in writing or print at the option of the party. A plaintiff, unless he obtains an extension of time, must deliver a statement of claim within six weeks after the defendant has entered his delivering

printed.

Time for

statement

of claim.

Rules as to computation of

time for delivering pleadings generally.

Power of

Court or judge to extend time.

Effect of default of plaintiff in delivering pleading within time.

appearance (Order XXI. r. 1); but it is not necessary that the plaintiff should deliver a statement of claim at all in cases where the defendant has intimated that he does not require one. Still in such a case the plaintiff may insist on delivering his statement of claim, but it is at his own risk so far as costs are concerned, for "where a plaintiff delivers a statement of claim without being required to do so, the Court or a judge may make such order as to the costs occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was unnecessary or improper." (Order XXI. r. 1.)

The time within which pleadings must be delivered varies, it will be seen, with the different pleadings; but in counting time the following rules are common to statements of claim and defence, and to replies, viz., that "no pleading shall be delivered in the

long vacation unless directed by a Court or a judge" (Order LVII. r. 4); "and the time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for delivering any pleading unless otherwise directed by a Court or a judge." (Order LVII. r. 5.) Again by rule 2 of the same order, "where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time." This rule will no doubt apply to pleadings in cases where an extension of time less than six days in duration in which to deliver a pleading has been granted by a Master in chambers.

Unlimited power of extending the time is vested in the Court. The general rule upon the subject is rule 6 of Order LVII. "A Court or a judge shall have power to enlarge or abridge the time appointed by these rules or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed;" and by rule 22 of the Additional Rules of Court (August, 1875)" as to applications to extend the time for taking any proceeding limited by Rules of Court (subject to any special order as to the costs of and occasioned by any such application) the costs of one application are, without special order, to be allowed as costs in the cause or matter, but (unless specially ordered) no costs are to be allowed of any further application to the party making the same as against any other party, or any estate or fund in which any other party is interested." The effect of not pleading in due time, where no extension of time has been obtained, differs according as it is the plaintiff or the defendant who is in default in delivering a pleading. "If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time, allowed for that purpose, the defendant may at the expiration of that time apply to the Court or a judge to dismiss the action with costs for want of prosecution; and on the hearing of such application the Court or judge may, if no statement of claim have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as to the Court or judge shall seem just.' (Order XXIX. r. 1.) This is where the plaintiff has made default in delivering a statement of claim, but if a statement of claim is duly delivered, and the defendant duly delivers a defence, and then the plaintiff makes default in delivering a reply, rule 12 of Order XXIX. applies. "If the plaintiff does not deliver a reply or demurrer. within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and the statement of fact in the pleading last delivered shall be deemed to be admitted." When it is the defendant that makes default in pleading, the cases must be distinguished where the plaintiff's claim is for (a) a debt or liquidated

demand; (b) detention of goods and pecuniary damages or either of them; (c) the recovery of land; (d) mesne profits, arrears of rent or damages for breach of contract indorsed upon a writ for the recovery of land; (e) all other actions. In cases (a) and (c) the plaintiff may sign final judgment with costs; in cases (b) and (d), the plaintiff may enter an interlocutory judgment against the defendant, and a writ of inquiry shall issue to assess the value of the goods, or the amount of profits as the case may be; in all other cases the plaintiff does not get judgment forthwith, but he may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. (Order XXIX. r. 10.) If there are several defendants, and some make default in pleading and others duly plead, the plaintiff may enter final judgment at once, and proceed to execution against those in default, or set down the action on motion for judgment against the defaulting defendants, according to the nature of the claim which the plaintiff has made in his writ. The pleader is referred for additional information on the whole subject of default in pleading to Griffith's Treatise under the Judicature Acts, 2nd edit., 295-302.

(b) Where a party has any title or dignity, it ought to be given to him both in the writ and in the pleading, as the Duke of , the Marquis of, the Earl of the Right Honourable the Right Reverend Lord Bishop of Bart., Sir

Father in God

Sir

Knight; but this does not apply to special orders of knighthood or decorations, such as K.C.B., &c. A mere addition such as Mr. or Esquire is not given.

(e) The Judicature Acts make an important change in the law as to venue or the place of trial. Previously all actions were divided into local and transitory. The former-all actions relating to land, as ejectment, trespass, &c.-could, unless by special order, only be tried in the county where the land was situated, and the plaintiff had therefore really no choice as to the place of trial; but in the case of transitory actions it was otherwise. Here the plaintiff could fix the venue himself, and thus an action for libel published in Westmoreland could be tried in London. Now this right of selecting the place of trial is given to the plaintiff in every class of case. This is done by Order XXXVI. r. 1, which provides: "There shall be no local venue for the trial of any action, but when the plaintiff proposes to have the action tried elsewhere than in Middlesex, he shall in his statement of claim name the county or place in which he proposes that the action shall be tried, and the action shall, unless a judge otherwise orders, be tried in the county or place so named. Where no place of trial is named in the statement of claim, the place of trial shall, unless a judge otherwise orders, be the county of Middlesex. Any order of a judge, as to such place of trial, may be discharged or varied by a Divisional Court of the High Court." This rule is of the most sweeping character, and it has been construed as giving the plaintiff an absolute right to fix the place of trial subject to the defendant showing such a preponderance of convenience in trying elsewhere as to oust that right. (Per Denman J., Plum v. Normanton Iron, &c., Co., W. N. 1876, 105; 20 S. J. 340.)

(d) It is suggested that the practice should be uniformly followed of placing the statement as to the person by whom and the time at which the pleading is delivered at the end of it instead of dividing it as is frequently done, and stating at the top after the heading Statement of, &c.," that it is delivered by so-and-so, and at the end that it is "delivered this day of, &c.," which necessitates a repetition of the statement of the delivery. Whether the whole statement should appear at the commencement or end of the pleading is entirely a matter of taste. But there is no justification for the division of it just indicated.

Effect of default in

case of

defendant.

Local venue abolished.

Ordinary Form of Commencement and Termination of Statement of Defence (a).

(a) "Where a statement of claim is delivered to a defendant, he shall deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance, whichever shall be last, unless such time is extended by the Court or a judge." (Order XXII. r. 1.) See ante, pp. 92, 93, as to computation of time, power of Court or judge to extend the time, and effect of defendant making default in pleading.

(b) See the observation ante, p. 91, as to the propriety of following an uniform rule as to stating in one paragraph when and by whom the pleading is delivered; and the suggestion that the proper place for this statement is at the end of the pleading.

Ordinary Form of Commencement and Termination of a Statement of Defence and Counter-claim.

Between Sir John Fletcher, Bart. (a) Plaintiff,

commence

ment, &c., of defence and counter-claim.

1.
2, &c.

}

Here insert body of statement of defence.

And by way of counter-claim the defendant

says:

(a) See ante, p. 93, as to giving titles or dignities to plaintiff or defendant.

(b) See notes on preceding pages as to this portion of the pleading.