Evasive denials.

Thorp v. Holdsworth.

Judgment of Jessel, M.R.

therein provided were definitely agreed upon at the interview, and the defendant procured the plaintiff to sign the draft articles to prevent any question being raised by him as to the terms agreed upon; and that neither the defendant nor his solicitor had intimated any objection to the terms of the said draft articles. In his defence the defendant made certain admissions, and proceeded as follows: "With respect to paragraph 3, the defendant says that his solicitors abstained from finally revising and settling the draft articles of partnership until the said trustees should determine whether or no they would make the above-mentioned advance. The defendant denies that the terms of the arrangement between himself and the plaintiff were definitely agreed upon as alleged." The case then came before Jessel, M. R., on a motion by the plaintiff for final judgment under Order XL. r. 11.

In giving judgment his lordship said: "It is as well to say that in construing the pleadings with regard to Order XIX. r. 22, I shall construe them strictly. It was intended that they should be construed strictly, in order specially to enable the plaintiff to know what the real issue between him and the defendant was. The whole object of pleading is to bring the parties to an issue, and the meaning of the rules of Order XIX. was to prevent the issue being enlarged, which would prevent either party from knowing, when the cause came on for trial, what the real point to be discussed and decided was. In fact the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing. The 11th rule of Order XL. enables the plaintiff or defendant to get rid of so much of the action as to which there is no controversy. That is the meaning of it. It may be that the whole issue may not be in controversy, and thereupon either party may be entitled to move on admissions of fact in the pleadings. What amounts to admissions of fact in a pleading is defined by the 17th rule of Order XIX. 'Every allegation of fact in any pleading if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted.' Consequently, all you have to find is no specific denial or no definite refusal to admit. Then the question is

v. Holds

what if not specifically denied' means, and that is again de- Evasive fined in subsequent rules. The 20th rule says [his Lordship denials. read it]. There it will be seen it is not merely denial that is meant, but the rule covers non-admission, for each party is to deal specifically with every allegation of fact of which he does not admit the truth. Therefore he must be quite as specific under the 20th rule when he does not admit as when he says I deny.' In fact they are both covered by the 20th rule. Then in order that there shall be no mistake as to the meaning of the word 'specifically' in the 20th rule, the 22nd rule says this [his Lordship read the rule]. Applying that rule to the pleadings in the present case, let us see what comes of it. The Judgment in Thorp plaintiff's allege an agreement to take a lease and carry on a partnership. They allege that in pursuance of the agreement worth. they took a lease, and that the draft articles were prepared to define the terms of the partnership; that there was an interview on the 17th September, and that the same were approved by the parties, subject to being submitted by the defendant to his solicitor, and being revised and finally settled; that the draft had not yet been revised and the articles had not yet been executed, and that, although the draft articles were only settled subject to revision, the terms of the arrangement between the plaintiffs and the defendant as therein provided were definitely agreed upon at the said interview, and the defendant procured the plaintiff Stackpoole to sign the draft articles in order to prevent any question being raised by him as to the terms agreed upon. The defendant does not deny a word of these allegations, except that part which alleges that the terms were definitely settled, and as to that he says: The defendant denies that the terms of the arrangement between himself and the plaintiffs were definitely agreed upon as alleged.' Now that is evasive. As alleged' means the whole allegation in the statement of claim, not the allegations of the particular paragraph. I cannot tell from his pleading what part of the allegation of the plaintiffs the defendant intends to deny. He may intend to deny that the terms were definitely agreed upon at the interview of the 17th September, although they were at some other day, or he may have some peculiar view as to the meaning of the word 'definitely.' He may not be able to say that the terms were not arranged as agreed upon, but he may

Evasive denials.

Thorp v. Holdsworth.

Byrd v. Nunn.

He

take the word 'definitely,' because he thinks it may give him. some mode of escape. I cannot make out what he means. is bound to deny that any agreements or any terms of arrangement were ever come to, if that is what he means; if he does not mean that, he should say there were no terms of arrangement come to, except the following terms, and then state what the terms were; otherwise there is no specific denial at all. 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 may come to an issue. If you have an agreement for a lease containing fifty stipulations made by parol, and the plaintiff and the defendant both agreed that there was sich an agreement, and, except as to one of the fifty stipulations that it had been carried out and acted upon, what would be said of a Court of Justice if it allowed the defendant simply to deny that there was any such agreement as alleged, so that the plaintiff should be compelled to come to trial with witnesses to prove every one of the fifty stipulations of the agreement. Of course the defendant ought to admit that forty-nine were made, and deny 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. Nunn (L. R. 5 Ch. D. 781; and on appeal, 7 Ch. D. 284; 47 L. J. Ch. 1 ; 37 L. T. 585; 26 W. R. 110) is a case to the like effect. It was an action for specific performance. The plaintiff 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,

Nunn.

John Hutley, of 1 and 2, High Street, Bloomsbury, in the Evasive county of Middlesex, provision merchant, agreed by writing denials. 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 £60 per annum clear." The first paragraph of defendant's statement 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, Byrd v. 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 authorized."

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., took this view, and refused leave to amend the statement of defence by adding an allegation that the agent was not authorized to make the agreement.

The Court of Appeal confirmed Fry, J. In giving judgment,

F

Evasive denials.

Judgment in Byrd v. Nunn.

Thesiger, L.J., 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 first paragraph of the defence ought not to have been struck out as embarrassing. 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 fifth 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 first paragraph, so the fifth 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