are ma

I have had some doubt whether there is not a difference with What facts regard to it, but I think substantially it stands upon the same footing as the other part."

terial.

L. J.

Facts may be pleaded, though not necessary

Brett, L. J., said, "We have to consider first, whether, since the Judicature Acts, these facts can be properly pleaded. It is clear that they could not before the Judicature Acts. They are facts which went to increase the damages, and were not pertinent to the cause of action, which could be as well made out whether they were pleaded or not. The question is whether such facts under Order XIX. r. 4, may be properly pleaded, not being material to the cause of action with respect to the defence in the action, but being material to the question of damages. In my opinion they may be pleaded now, though they could not before the Judicature Acts. Rule 4 says that the statement Judgment of Brett, must be of the material facts on which the party relies, not facts on which the party relies material to the issue. The plaintiff here relies on the facts alleged in paragraph 4; therefore they are properly pleaded, though not necessary to the liability of the defendant. It is said that the defendant is put into a difficulty as to traversing or admitting them. But he is not bound to traverse them. Though they are properly stated in the claim, yet, inasmuch as they are not facis material to the cause of action, the mere fact of not traversing them would not be an admission of them. Therefore he is not called upon to traverse them, though I do not see how he would be injured if liability. he were. If they were not properly pleaded under rule 4 of Order XIX. I think the defendant would fail in showing that the Court ought to strike them out upon any of the grounds mentioned in rule 1, Order XXVII. They cannot be struck out unless brought within that rule, even if they are not properly pleaded under rule 4 of Order XIX. If they are to be struck out it must be by reason of their being scandalous, or tending to prejudice or embarrass the fair trial of the action. I have already stated that they may be properly given in evidence at the trial. It seems to me that the mere fact of stating them in the pleadings cannot tend to embarrass or prejudice the fair trial of the action; on the contrary, they are necessary for the fair trial of the action. I am clearly of opinion that these matters could be properly pleaded within rule 4 of Order XIX., and that if improperly pleaded, they cannot be

to defendant's

Every essential fact must be

stated, but

in summary form.

Rules designed to

secure

brevity.

Evidence

must not

be pleaded.

struck out as being within the grounds stated in rule 1 of Order XXVII.”

It seems clear from these cases that a plaintiff must state every material fact which it is essential for him to prove in order to obtain the relief he seeks. It is not enough for him to say he has such or such right, or that the defendant is under this or that liability to him. He must show by a consecutive, though brief and summary, statement of the facts on which he relies how his title to relief arises, and how the defendant comes under any liability to him. And where he is claiming special damage as the result of the defendant's wrongful act, he must go on as a fact to allege that he has suffered the particular consequence of the defendant's act on which he relies. It must be borne in mind that the whole object of pleading is to enable each side to come to trial prepared to meet the case of the other, and the plaintiff in his statement of claim is bound to state his title to relief with such particularity as will inform the defendant of the character of the facts he has to contend against. The remarks of several judges in the cases quoted, that everything should be stated which would properly appear in a special case, must be taken as subject to this, that the rules contemplate the compression of the facts into a more summary form than is usual in the statement of a special

case.

But while a plaintiff is thus bound to set out all the material facts which are essential to his claim, the rules provide that he shall only set out these facts; and even in setting them out, employ the fewest words and the most summary method consistent with intelligible statement. The rules which have been framed with this object must next be considered.

1. "Every pleading shall contain. . . a statement.. of the material facts . . . . but not the evidence by which they are to be proved." (Order XIX. r. 4.) This rule, forbidding the pleading of evidence, is one of the greatest importance. There was an exactly similar provision in the Rules of 1875, the neglect of which, however, did no little to bring the system into disrepute, and lead to further changes.

It is sometimes a matter of the greatest difficulty to say

whether or no a particular fact is a material fact, and therefore Evidence pleadable, or merely evidence of a material fact, and on that must not be pleaded. ground inadmissible; but the majority of cases admit of no difficulty. A plaintiff is averring that he was injured by the negligence of another. It would be pleading evidence to aver that A. B. was standing by and saw the occurrence. Again, a plaintiff is alleging that he gave a certain notice to another. It is merely evidence to state that he sent the notice in a letter which he gave to A. B. to post, and which A. B. did post; and so on in an infinite number of cases.

evidence.

In Jones v. Turner (W. N. 1875, 239), where the plaintiff Instances in an action for commission set out in his claim admissions of of pleading liability which the defendant had made to him, Quain, J., at Chambers, struck out the paragraphs in question, on the ground that they contained evidence of material facts, and not facts themselves. To the same effect is Askew v. The North Eastern Railway Company (W. N. 1875, 238), where in an action for interference with the plaintiff's right to carry coals over a quay, one paragraph of the statement of claim was as follows: "The defendants do not dispute, but have in their correspondence with the plaintiff's solicitors admitted, that the plaintiff and his tenants are entitled to have access from the Redheugh estate to the quay for the carriage, storage, and shipment of manure, dung, and goods of a like description, and have expressed their willingness to make the necessary arrangements, and to give all facilities for that purpose." Application was made to have this paragraph struck out ; and Quain, J., in giving his decision, said: "This paragraph must be struck out. Can you point out even in the forms any precedent for such a paragraph as this? Can you point out any section in the Act that enables you to plead admissions made by the other side to your solicitors? You put the defendants in the difficulty of not knowing whether to traverse the admission. Conciseness is intended by these rules to be the very soul of pleading." (See also Davy v. Garrett, 7 Ch. D. 473; 47 L. J. Ch. 218; 38 L. T. 77; 26 W. R. 225.) So where in an action for malicious prosecution the plaintiff set out the facts in detail, with the view of stating in the face of his claim that there was no reasonable or probable cause for the prosecution, and among other things stated that he denied

Rules to secure

brevity.

The effect of documents must only be given.

Unless the precise

words are material.

the charge of theft when it was made against him, Archibald, J., at Chambers, affirmed the order of the Master striking out the claim. (Aderis v. Thrigley, W. N. 1876, 56.)

2. Another rule, having for its object brevity and conciseness of statement, is that the effect only, and not the whole of documents should be set out in a pleading unless the precise words are material. "Wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material." (Order XIX. r. 21.) It should be noted that the terms of this rule are not imperative. It is not declared that documents must be summarized, but that they should be; and the effect of setting them out at improper length is that the pleading may be objected to as prolix, and the party visited with costs. A reference to the forms, given in the Appendix, shows that a very large compliance with this rule is expected. In the various claims upon written documents, like charterparties, policies of insurance, bonds, contracts of sale, leases, &c., the documents in question are invariably summarized, and their effect as it bears upon the claim alone given; and no doubt in the great majority of cases this will be a sufficient and a proper statement. To set out a long document containing clauses irrelevant to the matter in dispute will unquestionably be a grave departure from the spirit and intention of the rules. The pleader in summarizing a document will, however, have to take great care to correctly state the effect of the portion of it upon which he relies. Clauses which do not come in question he should not allude to; but the effect of all those parts of a contract which he contends the defendant or the plaintiff, as the case may be, has broken, should be given. Where a written document is so concise in its terms, that a statement of its effects would occupy about as much space as the document itself, then there can be no objection to setting the latter out in full. And it will be observed that in an action upon a guarantee, this course is adopted in the Appendix. There is, however, one very important limitation to the rule that the effect of documents should only be given. The proviso of Order XIX. r. 21, is, "unless the precise words of the document or any part thereof are material." Wherever such is the

case, then the precise words must be set out in the statement of claim or defence, as the case may be.

be set out.

An action for libel comes under this proviso to the rule. In actions for libel The point arose in Harris v. Warre (4 C. P. D. 215; 48 L. J. precise C. P. 310; 40 L. T. 429; 27 W. R. 461). There the third words must paragraph of the plaintiff's statement of claim was as follows: "The defendant subsequently wrote and sent to the chief constable of the county of Somerset letters, in which he charged the plaintiff with having been concerned in or guilty of the murder of the said Frederick Merry, and required the said chief constable to cause the plaintiff to be arrested on such charge." The fourth paragraph was, "the defendant also sent to Mr. Goldsmith, the superintendent of police for the district wherein the plaintiff resides, and charged the plaintiff with having been guilty of the said murder, and required the said superintendent to arrest the plaintiff upon the said charge." There was a demurrer to this part of the claim, on the ground that if the plaintiff meant to complain of a libel or slander, the words ought to have been set out.

Warre.

In giving judgment in favour of the demurrer, Lord Cole- Harris v. ridge, L. C. J., said: "I am of opinion that this demurrer must be allowed. For the purpose of our decision, we will assume that something improper has been done on the part of the defendant. The plaintiff's statement of claim puts his case apparently on two grounds, namely, malicious prosecution and libel. As to the first, Mr. Petheram has admitted that the facts do not disclose a malicious prosecution. No prosecution was ever instituted, and none was determined in favour of the plaintiff, who is therefore out of Court on this ground. With regard to the second point, the libel is stated in most general terms. It is also admitted that such a form of pleading is new, and that according to the old practice it was necessary to set out the actual words complained of. The reasons for this necessity have often been stated by judges of high authority, and are by no means technical. If it were otherwise, how could the defendant shape his defence? Everything may turn, and sometimes does turn, upon the peculiar form of the words. In old days a small, but important variation, proved fatal, if the difference in form amounted to a difference in substance. In cases of libel and slander, the very words are the facts; and it