Names of

altered.

CHAPTER II.

ON THE GENERAL PRINCIPLES AND RULES OF PLEADING.

PRIOR to the Judicature Acts the number of pleadings pleadings in an action was almost unlimited-declaration, plea, replication, rejoinder, surrejoinder, rebutter, surrebutter, &c.; but now there are seldom more than three pleadings in one action, and there cannot be more than four without the leave of the Court. "No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then shall be pleaded only upon such terms as the Court or a judge shall think fit." Order XXIII. r. 2. The names given to the various pleadings are also altered,-Statement of Claim is substituted for declaration, Defence with or without Counter-claim for plea, Reply for replication, and finally Joinder of Issue; and in Orders XIX. to XXV. we have a new code of rules regulating the form of the modified system of pleading. Probably the most convenient way to present the subject to the reader will be to arrange the rules and decisions and comment upon them under the heads of the particular pleading to which they belong.

Writ sometimes statement of claim.

SECTION I.-STATEMENT OF CLAIM.

In certain circumstances the indorsement on the writ of summons amounts to a statement of claim. "When the writ is specially indorsed under Order III. r. 6, no further statement of claim shall be delivered, but the indorsement on the writ shall be deemed to be the statement of claim." (Order XX. r. la.)

The cases in which a plaintiff may, if he chooses, for he is under no compulsion in the matter, specially indorse his writ are:

writ may be a state

1. Where he is seeking to recover a debt or liquidated demand When the in money payable by the defendant with or without interest, or suing: (a), upon a contract express or implied (as for instance, ment of on a bill of exchange, promissory note, or cheque, or other claim. simple contract debt); or (b), upon a bond or contract under seal for payment of a liquidated amount of money; or (c), on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (d), on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (e), on a trust; or

2. Where, as landlord of a premises, the plaintiff claims possession against a tenant, or a person holding under a tenant, when the term has expired or been determined by notice.

indorse

ment on

the writ.

The special indorsement on the writ of summons must be to Special the effect of such one of the Forms in Appendix C., section IV., of the Rules of 1883, as shall be applicable to the case (Order III. r. 6); and it is further provided by the next rule that whenever the plaintiff's claim is for a debt or liquidated demand only, the indorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand and for costs respectively, and shall further state that upon payment thereof within four days after service, or in case of a writ not for service within the jurisdiction, within the time allowed for appearance, further proceedings will be stayed. Such statement must be made in the form in Appendix A., Part III., section III., of the Rules of 1883.

Where an indorsement or a writ is intended to do service for What a statement of claim, great care will be requisite in framing it. amounts to. Under the Rules of 1875, when a plaintiff claimed by indorsement on his writ of summons a sum of £399 9s. 7d. as "the defendant's share and contribution to payment of certain bills and promissory notes on which he and the plaintiff were jointly liable, and which bills and notes have been taken up by the plaintiff," it was held that the indorsement was not sufficient. (Walker v. Hicks, 3 Q. B. Div. 8; 47 L. J. Q. B. 27; 37 L. T. 529; 26 W. R. 113. See also Yeatman v. Snow, 42 L. T. 502.) And it is conceived that such an indorsement would still be insufficient. On the other hand where a plaintiff specially indorsed his writ: "The plaintiff's claim is for

dorsement

on writ.

Special in £49 58. 8d. The following are the particulars :- 1879, Feb. 14, To goods, 16s. 1d.'" Several similar items followed, and the list ended with: "May 21, British Commercial Bank Draft returned, £20; Notary charges on same, 18. 6d., making in all a total of £99 0s. 8d." Credit was given on the indorsement for £20, the amount of the draft returned, and also for certain other sums, leaving a balance of £49 5s. 8d. due. Obamounts to. jection was taken that the indorsement did not state the nature of the goods, nor whether they were goods sold, or converted, or detained, but it was held by the Court of Appeal that the indorsement was sufficient. (Smith v. Wilson, 4 C. P. Div. 392 ; App. 5 C. P. D. 25; 49 L. J. C. P. 96; 41 L. T. 433; 28 W. R. 57.) No doubt this ruling still holds.

What

Plaintiff may unite several

causes of action in his claim.

Demurrers are abolished, and a defendant who is dissatisfied with the sufficiency in law of the averments on the indorsement cannot now, as he might in some cases under the Rules of 1875 (Robertson v. Howard, 3 C. P. D. 280; 47 L. J. C. P. 480; 38 L. T. 715; 26 W. R. 683; Fawcus v. Charlton, 10 Q. B. D. 516), treating the indorsement as a statement of claim, demur to it. The proper remedy of the defendant is either to apply under Order XIX. r. 7, for a "further and better statement of the nature of the claim," or, under Order XXV. r. 2, by his defence, specifically to raise any point of law he desires to take.

If the plaintiff wishes to fix the venue at any place other than Middlesex, he should, when the writ is intended to be the statement of claim, specify the place in question upon it exactly in the same manner as upon a statement of claim (Order XX. r. 5); and it would seem the writ should bear the signature of counsel if it has been settled by counsel.

Coming next to the form of the statement of claim, when one is prepared and delivered, there are two general observations to be made. First, a plaintiff, as a rule, can unite in the same action several causes of action, subject to the power of the Court to order them to be tried separately, when they cannot be conveniently tried together (Order XVIII. r. 1). And it follows when several actions are united in this manner that the statement of claim must contain all the averments essential to each cause of action. The rule we have stated is subject to the following exceptions:

of

to rule that plaintiff may unite action in

causes of

his claim.

1st. No cause of action, unless by leave of the Court or a Exceptions judge, can be joined with an action for the recovery of land, except: (a) claims in respect of mesne profits or arrears of rent or double value in respect of the premises claimed or any part thereof; (b) damages for breach of any contract under which the same or any part thereof are held; or (c) damages for any wrong or injury to the premises claimed. (Order XVIII. r. 2.) There was a similar provision in the Rules of 1875, and upon it it was held that an action "to establish title to land," not claiming possession, was not an action for the recovery land so as to require the leave of the Court for its joinder with any other cause of action. (Gledhill v. Hunter, 14 Ch. Div. 492; 49 L. J. Ch. 333; 28 W. R. 530; not following Whetstone v. Dewis, 1 Ch. Div. 99; 45 L. J. Ch. 49; 33 L. T. 501; 24 W. R. 93.) Neither is a foreclosure action an action for the recovery of land within this rule. (Tawell v. Slate Company, 3 Ch. Div. 629.) It was also laid down that an application to join another cause of action with one for the recovery of land should be made before the issue of the writ. (Pilcher v. Hinds, 11 Ch. Div. 905; 48 L. J. Ch. 587; 40 L. T. 832; 27 W. R. 389); and that leave ought to be given to join with an action for the recovery of land an action for the recovery or delivery up of a deed relating to the land, and also for the recovery of personal estate comprised in the same instrument. (Cook v. Enchmarch, 2 Ch. Div. 111; 45 L. J. Ch. 504; 24 W. R. 293.)

2nd. The second class of exceptions to the rule, that different causes of action may be joined together, is that claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a judge, be joined with any claim by him in any other capacity (Order XVIII. r. 3), and that claims by or against an executor or administrator as such may only be joined with elaims by or against him personally when the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administrator. (Order XVIII. r. 5.)

It must also be remembered that several persons may be Plaintiffs joined as plaintiffs in whom the right to any relief claimed is may claim jointly, alleged to exist jointly, severally, or in the alternative (Order severally, XVI. r. 1), and that by rule 4 all persons may be joined as defendants against whom the right to any relief is alleged to exist,

or alter

natively.

Claim not

whether jointly, severally, or in the alternative. In any one of these cases it is obvious that the statement of claim will be complicated by the necessity of setting out facts in the alternative to found the alternative application for relief.

The second generai observation we have to make is, that the limited by pleader in settling a statement of claim is not necessarily limited

the writ.

Brevity the first rule of pleading.

Consequences of prolixity.

to the relief claimed in the writ. "Whenever a statement of claim is delivered the plaintiff may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ." (Order XX. r. 4.)

In preparing a pleading, the point insisted upon in all the rules is brevity, and either party guilty of any prolixity may be saddled with the costs occasioned by his prolixity, either at the instance of the opposing party or upon the independent action of the taxing officer. Order XIX. r. 2, provides for the delivery of a statement of claim, defence, counterclaim, or reply, and then proceeds, "such statements shall be as brief as the nature of the case will admit, and the taxing officer in adjusting the costs of the action shall at the instance of any party, or without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same." And by rule 4 "every pleading shall contain, and contain only, a statement in a summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall when necessary be divided into paragraphs numbered consecutively." Further, by rule 5 it is declared that the forms given in the Appendices, "when applicable, and when they are not applicable forms of the like character, as near as may be, shall be used for all pleadings, and where such forms are applicable and sufficient any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be."

Very similar provisions were contained in the Rules of 1875 on the subject of prolixity, with this difference, that under them the taxing officer had no express power of his own motion to visit the party chargeable with prolixity with the costs occasioned thereby. It is obvious that one of the first cares of the pleader must be to consult brevity in his statement of his claim