When a party has a right to amend.

Practically unlimited power of

Court to

authorise amendments.

is either necessary or desirable to do more than join issue upon a reply, though no doubt they will, from time to time, arise in practice.

SECTION VI.-AMENDMENT OF PLEADINGS.

In certain cases a party may amend his pleading without the leave of the Court or a judge: in other cases he requires such leave.

By Order XXVIII., r. 2, a plaintiff may, without leave, amend his statement of claim once at any time before the expiration of the time limited for reply, and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared. And by rule 3 of the same order a defendant who has set up any set-off or counter-claim may, without leave, amend such set-off or counter-claim at any time before the expiration of the time allowed him for answering the reply, and before such answer, or, in case there be no reply, then at any time before the expiration of twenty-eight days from defence. The costs occasioned by amendments under either of the above rules are to be borne by the party making the amendment (Order XXVIII., r. 13); and, where any pleading has been amended, the opposite party may, within eight days, apply to the Court or a judge to disallow the amendment, or any part thereof, and the Court or a judge, if satisfied that the justice of the case requires it, may disallow the amendment, or allow it subject to such terms as to costs as may be just.

The power of amending pleadings as of right, and without the necessity of any application in chambers, is limited to the two cases given above. In other circumstances no amendment can be made without the leave of the Court or a judge being first obtained. But the power which the latter have to authorise amendments is practically unlimited. "In all cases not provided for by the preceding rules of this Order, application for leave to amend may be made by either party to the Court or a judge, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." (Order XXVIII., r. 6.)

It has been suggested that where a judge of first instance

has refused to authorise an amendment of the pleadings, the Court of Appeal will not review this exercise of his discretion (Golding v. Wharton Salt Works Company, 1 Q. B. D. 374; 34 L. T. 474; 24 W. R. 423; Watson v. Rodwell, 3 Ch. D. 380; 45 L. J. Ch. 744; 35 L. T. 86; 24 W. R. 1009); but in Laird v. Briggs (19 Ch. D. 21) Jessel, M. R., pointed out that the effect of these decisions was only that the Court of Appeal would not interfere in a trivial matter.

In Tildesley v. Harper (10 Ch. D. 393; 48 L. J. Ch. 495; 39 L. T. 552; 27 W. R. 249), where Fry, J., refused a defendant who had pleaded an evasive denial leave to amend, the Court of Appeal decided that an amendment ought to be allowed, and Bramwell, L. J., laid down that, as a general rule, leave to amend ought not to be refused unless the Court is satisfied that the party applying is acting malâ fide, or that his blunder has done some injury to the other side which cannot be compensated by payment of costs or otherwise. See also Rutter v. Tregent (12 Ch. D. 758; 41 L. T. 16; 27 W. R. 902; 48 L. J. Ch. 791), Blenkhorn v. Penrose (43 L. T. 668; 29 W. R. 37). In Hendriks v. Montagu (17 Ch. D. 642; 50 L. J. Ch. 257; 44 L. T. 89) Jessel, M. R., intimated that, as a rule amendments are not to be allowed at the trial which raise charges of fraud, where the case was originally launched without any charge of fraud.

Ordinary form of

commence

ments, &c., of plead

COMMENCEMENTS AND TERMINATIONS OF
PLEADINGS (a).

Ordinary Form of Commencement and Termination of a State

1, 2, &c. [Here insert the body of the pleading.] The plaintiff claims [the particular prayer or claim follows]. Place of Trial (c).

Signed (Here counsel signs).

Plaintiff,

Defendant.

Order XIX. r. 7.

Pleadings to be delivered.

When

pleadings to be, printed.

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

(a) The rule of the new practice which regulates the formal part of all pleadings is Order XIX., r. 11. Every pleading shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the Division to which the judge, if any, to whom the action is assigned belongs, the title of the action, and the description of the pleading, and shall be indorsed with 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."

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. 10); but by Order XXXVI., r. 30, "the party entering the trial shall deliver to the proper 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 XIX., r. 9, "every pleading which shall contain less than ten folios (every figure being counted as one word) may be either printed or written, or partly written and partly printed, and every

other pleading, not being a petition or summons," below that 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 Time for statement of claim within five weeks after the defendant gives notice delivering requiring it (Order XX., r. 1); but it is not necessary that the plaintiff statement should deliver a statement of claim at all in cases where the defendant of claim. 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, or the defendant unnecessarily requires such statement, 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 XX., 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 LXIV., 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 the Court or a judge." Rules as to (Order LXIV., r. 5.) Again, by rule 2 of the same order, "where any computalimited time less than six days from or after any date or event is tion of appointed or allowed for doing any act or taking any proceeding, time for Sunday, Christmas Day, and Good Friday shall not be reckoned in the delivering computation of such limited time.

pleadings

Unlimited power of extending the time is vested in the Court. The generally. general rule upon the subject is rule 7 of Order LXIV. "The 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 24 of Order LXV. "the costs of applications to extend the time for taking any proceedings shall be in the discretion of the taxing officer, unless the Court or judge shall have specially directed how the costs are to be paid or borne. The taxing officer shall not allow the costs of more than one extension of time, unless he is satisfied that such extension was necessary, and could not, with due diligence, have been avoided."

The effect of not pleading in due time, where no extension of time has Power of been obtained, differs according as it is the plaintiff or the defendant Court or who is in default in delivering a pleading. "If the plaintiff, being judge to bound to deliver a statement of claim, does not deliver the same extend within the time allowed for that purpose, the defendant may at the time. 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 shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or judge shall think just." (Order XXVII., r. 1). This is where the plaintiff has made default in Effect of delivering a statement of claim, but if a statement of claim is duly default of delivered, and the defendant duly delivers a defence, and then the plaintiff in plaintiff makes default in delivering a reply, rule 13 of Order XXVII. delivering applies. If the plaintiff does not deliver a reply within pleading the period allowed for that purpose, the material facts stated in the within defence shall be deemed to be denied. When it is the defendant that time. makes default in pleading, the case must be distinguished where the

.

Effect of default in case of

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 defendant. 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 XXVII., rr. 8 and 11.) 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.

Local venue abolished.

the Earl of

the

the Right -. Bart.,

(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 Marquis of the Right Honourable Reverend Father in God Lord Bishop of —, Sir 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.

() The Judicature Acts made 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 except where otherwise provided by statute. Every action in every division shall, unless the Court or judge otherwise order, be held in the county or place named on the statement of claim, or, where no statement of claim has been delivered or required, by a notice in writing to be served on the defendant or his solicitor within six days after appearance. Where no place of trial is named, the place of trial shall, unless the Court or a judge otherwise orders, be the county of Middlesex." This rule is of the most sweeping character, and it has been construed as giving the plaintiff a 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.) But, in practice, the plaintiff's right is much qualified by considerations of convenience and economy.