words of a

libel must

be set out.

The precise is these defamatory words, and not defamatory expressions generally, which form the ground of action. The principle was strongly re-affirmed in a recent case in the Court of Appeal (The Queen v. Bradlaugh, 3 Q. B. D. 60; 48 L. J. M. C. 5); and the practice in pleading, therefore, was perfectly clear before the Judicature Acts. But Mr. Petheram contends that Order XIX. r. 4, enables him to do what he has done here. The answer is, that in libel the words are the material facts mentioned in that rule. It is evident, also, that no alteration in the practice was intended to be made; for there is no form of a statement of claim for libel in the forms appended to the Rules of Court. The old practice, therefore, must be retained."

Malice, &c., to be alleged as a fact.

Denman, J. "I am of the same opinion. The only thing I wish to add is that Order XIX. does not really aid the plaintiff's contention. By rule 24 of that Order, the precise words of a document need not be set out unless the precise words thereof are material.' In libel, according to all the decisions, the precise words are most material."

So where the claim is for misrepresentation, and the misrepresentation complained of was contained in a written document, it would seem that those parts of the document which are said to be false should be set out verbatim, rather than any attempt be made to give their effect.

3. "Wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred." (Order XIX. r. 22.) To set out the circumstances from which the inference of malice, knowledge, &c., is to be drawn, would infringe rule 22, and would be a statement of evidence.

But where "the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence particulars (with dates and items, if necessary) shall be stated in the pleading." (Order XIX. r. 6.) The distinction between rule 6 and rule 22 is obvious. Where the foundation of the action is misrepresentation, fraud, breach of trust, wilful default, or undue influence, then particulars of the alleged misrepresentation, &c., must be given; but where malice, fraudu

secure

lent intention, &c., are only an element in a cause of action, in Rules to such a case the pleader must state as a fact that malice or a brevity. fraudulent mind existed, without going into the circumstances which prove it. For instance, in an action for fraudulent misrepresentation, the pleader must set out the particulars of the misrepresentation, but, with regard to the fraudulent mind of the defendant, it is proper merely to aliege that he knew the representations he made were false.

4. "Where it is material to allege notice to any person of any fact, matter, or thing, it shall be sufficient to allege such notice as a fact, unless the form, or the precise terms of such notice, or the circumstances from which such notice is to be inferred, be material." (Order XIX. r. 23.)

letters to

be stated as a fact.

5. "Wherever any contract or any relation between any Contracts persons is to be implied from a series of letters or conversations, to be implied from or otherwise from a number of circumstances, it shall be suffia series of cient to allege such contract or relation as a fact, and to refer generally to such letters, conversations, or circumstances, without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative." (Order XIX. r. 24.) The first part of this rule-viz. the part contained within the first sentence-speaks for itself; and it is manifest that where it is intelligently applied, a pleading which would otherwise be verbose and prolix will be cut down to convenient limits. It would seem that in cases within the second part of this rule, where the party wishes to rely in the alternative upon more contracts or relations than one as to be implied from the circumstances of the case, the facts and circumstances must usually be set out in a little more detail. It would scarcely be artistic to allege as a fact one contract and then immediately afterwards a totally inconsistent contract as having been made at the same time. The better course would be to state the essential facts, and then say that the plaintiff or defendant, as the case may be, contends that so-and-so was the contract which resulted from them, or in the alternative that-state the other possible contract-was the contract produced.

6. "Neither party need in any pleading allege any matter of fact which the law presumes in his favour, or as to which the

Performance of conditions

should not

be pleaded.

burden of proof lies upon the other side, unless the same has first been specifically denied." (Order XIX. r. 25.) And then the rule goes on to give as an example of its application, the case of consideration for a bill of exchange, where the plaintiff sues only on the bill and not on the consideration as a substantive ground of action.

7. "Any condition precedent the performance or occurrence of which is intended to be contested, shall be distinctly precedent specified in his pleading by the plaintiff or defendant (as the case may be); and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant, shall be implied in his pleading." (Order XIX. r. 14.) The part of this rule which is material in connection with the preparation of a statement of claim, is the latter portion: "An averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant, shall be implied in his pleading." The old formula was to allege in the claim "that all times had elapsed, things happened, and conditions been performed necessary to entitle the plaintiff to sue." And indeed, until the new rules under consideration, some such averment was generally necessary in a claim. Now it is taken as implied in every pleading, and it will be improper to burden it by its insertion.

How

settled accounts are to be pleaded.

8. "In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings' (Order XX. r. 8). The effect of this rule is clear. In the second case put the stated account is only evidence, and being evidence, it ought not to be pleaded; but in the first case it is the cause of action, and therefore should be set out with necessary particularity.

6

9. "In every pleading dates, sums, and numbers, shall be expressed in figures and not in words (Order XIX. r. 4).

10. Where particulars of any debt, expenses, or damages, ought properly to be given, and they exceed three folios in length, it is sufficient to state in the claim or counter-claim that such particulars do exceed three folios in length, and that

either full particulars have already been delivered to the defendant or that they accompany the statement of claim according to the fact (Order XIX. r. 6).

must not contain

of law..

The first leading rule to secure conciseness of pleadings is Pleadings that pleadings shall not contain evidence. The second is that they shall not contain inferences and conclusions of law. This inferences rule follows from Order XIX. r. 4, which provides that a pleading shall contain only the material facts; and the impropriety of setting out inferences of law has been pointed out in more than one case. In Watson v. Rodwell (3 Ch. D. 380; 45 L. J. Ch. 745; 35 L. T. 86; 24 W. R. 1009), the Lord Justice Mellish said he did not agree with what the ViceChancellor was reported to have said, that what would have been properly admitted in the old bill was still admissible in the new pleadings. He thought that what were called "the charging parts," which were merely the pleader's view of the equity, should be omitted. And so in the case of Hanmer v. Flight (35 L. T. N. S. 127; 24 W. R. 346) Brett, J., in giving judgment, said: "This case is one which shows clearly some of the advantages which have been obtained by the passing of the Judicature Acts. Pleadings now are no longer technical, in the sense that they must show the precise legal form which the plaintiff's demand must take; they now show the facts, and then it is for the Court, from the facts, to decide upon the legal result of these facts. In this case it is clear that something is due from the defendant to the plaintiff, though it may not be so clear what is the legal relation between the parties, or what would have been the exact form of pleading under which the amount due would under the former system of pleading have been recovered."

need not state under

of action he is pro

A plaintiff, in his statement of claim, need not now state under Plaintiff what particular form of action he is proceeding, nor in what particular legal relation he claims to stand to the defendant. what formi This rule was very clearly stated in the case of The Metropolitan Railway Company v. Defries (2 Q. B. D. 189; 36 L. T. N. S. ceeding. 150; 25 W. R. 271), which was in effect an action for use and occupation. The defendants demurred to the statement of claim, and the case came before Mellor and Field, JJ., in the Queen's Bench Division. Both learned judges concurred in disallowing the demurrer, and in giving judgment Field, J., said: "The de

The form of action immaterial.

The claim should not anticipate the defence.

fendants do not deny their occupation, nor the fairness of the sum claimed, nor the payment to them of the interest agreed; they only say this particular form of action cannot be adopted under the circumstances stated in the claim. It is a mistake to suppose that every element in the action for use and occupation must now be contained in a statement of claim in order to enable a plaintiff to recover. We are here to see if the plaintiff shows any cause of action, either in law or equity. The contract stated, coupled with the fact, also stated, that the defendants have been in occupation, is sufficient to raise the inference of such use of the premises as that contemplated in the agreement for which the defendants were to be subject to rent. It seems to me that our judgment should be for the plaintiffs for the amount claimed." The decision of the Queen's Bench was upheld by the Court of Appeal (2 Q. B. D. 387; 36 L. T. 494).

The plaintiff in his statement of claim need not and should not plead any facts in anticipation of or to meet the defence. This was a rule of pleading prior to the Judicature Acts (Stephen's Principles of Pleading, 7th ed., 290), and after some discussion it has been finally settled to be the rule under the new system. This was decided in the case of Hall v. Eve (4 Ch. Div. 341; 46 L. J. Ch. 145; 35 L. T. 926; 25 W. R. 177). The plaintiff in this case claimed specific performance of an agreement made between the defendants Eve and Whiffen of the one part, and the defendant Lane of the other part, whereby Eve and Whiffen agreed to grant a lease of certain building land to Lane for ninety years, with an option to Lane of purchasing the freehold. The plaintiff in his statement of claim alleged that Lane had transferred his interest to the plaintiff, who gave notice of his intention to purchase, but that Eve and Whiffen refused to execute a conveyance to him. The defendants Eve and Whiffen, by their statement of defence, alleged that before the transfer of the agreement to the plaintiff the defendant Lane had committed certain breaches of his contract which gave the defendants Eve and Whiffen a right to put an end to the agreement, which they had accordingly done. The plaintiff then, by his reply, pleaded that if (which he did not admit) there had been any default or breach of the agreement by Lane, the defendants Eve and Whiffen had waived it; and as to the provision which was