should not anticipate

the de

fence.

alleged to have been broken, he pleaded that if it had been The claim broken by Lane, the defendants were not entitled by reason of such breach to determine the agreement, for reasons which he stated. He also alleged concealment and false representation and want of equity; and lastly he joined issue with the defendants upon their statement of defence. The defendant moved that the reply might be set aside as erroneous in form; and Bacon, V.-C., acceded to the application on the ground that all the facts stated in the reply should have appeared in the statement of claim either originally or by amendment. The plaintiff appealed, and the Court of Appeal reversed this decision.

Hall v. Ece.

of James,

L. J.

James, L. J., said: "The question is this. The plaintiff in his statement of claim says: "I have an agreement of which I am entitled to specific performance.' The defendant by his statement of defence says: You are not entitled to specific performance, because you have committed breaches of the agreement and done certain things which entitled me to put an end to the agreement, and I have put an end to it.' The plaintiff in his reply says: "The facts you allege as your defence are not true, and if they were, they are things which you yourself induced me to do. It is therefore against equity that you should set them up against me.' It is not questioned that a plaintiff ought to Judgment be at liberty to say this, if it is true; the only question is whether he is wrong in alleging it by a special reply. Now the Order XIX. r. 2 says that after the plaintiff has delivered a statement of claim, and the defendant a statement of defence, set-off, or counter-claim, the plaintiff shall in like manner deliver a statement of reply (if any) to such defence, set-off, or counter-claim.' There is no limit that I can see as to what can be said in reply except that it must not be scandalous or irrelevant. The plaintiff is left as much at liberty in his reply as in his statement of claim. In the present case the plaintiff says the defendant has waived his rights.' The defendant says he ought to allege this by amending his statement of claim, not in his reply. Of course if the rules had so provided expressly, the Court would be bound by them; but as the rules have not so provided, it seems to me most illogical that the plaintiff should have to do this. The rule says that the plaintiff must make a statement of complaint, and of the relief or remedy to which he

6

The claim

should not

the defence.

claims to be entitled. It is no part of the statement of claim to anticipate anticipate the defence, and to state what the plaintiff would have to say in answer to it. That would be a return to the old inconvenient system of pleading in Chancery, which ought certainly not to be encouraged, when the plaintiff used to allege in his bill imaginary defences of the defendant and make charges in reply to them. I am of opinion that, independently of the forms given in the schedule to the orders, in the plain meaning of the rule, the reply is the proper place for meeting the defence by confession and avoidance, and that this reply does no more than this.”

Bramwell, L. J., said: “I am inclined to think that those who framed these orders intended that the parties should as a general rule go no further than the reply; but as a matter of right that the parties might go as far as that, and that the plaintiff might reply specially, and might also at the same time deny such allegations in the plea as he might think fit. Hall v. Eve. It would sometimes be unjust if he were not at liberty to do

Judgment well, L..

of Bram

so. Suppose a defendant pleaded a release, the plaintiff ought to be allowed to plead that he did not execute the release, and that if he did execute it, that he was induced to do so by fraud. It was manifestly the intention of the framers of the orders that the pleading was to go as far as the reply. Under the old practice, if the plaintiff desired to allege anything by way of confession and avoidance in answer to the plaintiff's reply, of which he desired to give evidence, he was obliged to allege it specially in his rejoinder; whether that is necessary now I do not say. If it is, leave to do so must be obtained. But with the reply it is different; in it the plaintiff can and must allege such new matter if he relies on it. In the Appendix several instances of confession and avoidance in special replies are given; and I think, therefore, the plaintiff may traverse the allegation made in the defence, or confess and avoid them, or both. The 2nd rule of Order XXIV. appears decisive. It implies that the reply may be something besides a simple joinder of issue, and it may be said even without leave of the Court. It amounts almost to a demonstration that the plaintiff may both traverse and confess and avoid in his reply. But it was argued that this is a matter for the discretion of the Judge. I am not of that opinion. The 2nd rule of Order

XIX. says that the plaintiff shall deliver to the defendant a statement of his complaint and of the relief to which he claims to be entitled. In the present case the fact that the defendant had waived the alleged forfeiture was no part of the plaintiff's complaint or of the relief which he claimed. His complaint is that the defendant had broken the agreement, and the relief he prays is specific performance; and it seems to me that it would be out of place and illogical if this new matter of the reply were put into the statement of claim, and certainly the 2nd rule does not require that it should be. I cannot help Claim thinking that it would be a mischievous thing to anticipate a defence that may never be made. If the plaintiff were to do this, he might also anticipate every form of defence, and that would lead to great length of pleading. It appears to me that an allegation that the defendants had waived their right is more cheaply, conveniently, and compendiously made in the reply than by amendment in the statement of claim."

These judgments may be taken as settling the law that a plaintiff in his statement of claim should not set out facts in anticipation of the possible defences of the defendant. It is sufficient that the pleading should in itself contain a good primâ facie case without reference to possible objections not yet urged.

must not anticipate the de

fence.

must not

raise a

On the other hand, a plaintiff may not in his reply, under But reply colour of alleging new facts in answer to the defence, make an entirely new case. Thus, where in his claim the plaintiff charges new case. a simple trespass and conversion of goods against the defendant, a sheriff, and the latter by his defence justified under the execution of a writ of fi. fa., the plaintiff may not by his reply set up that the defendant remained in the house an unreasonable time, and made a greater noise and disturbance than were necessary. These allegations may or may not constitute an independent ground of action. If they do they ought to have been stated in the claim, and are not properly introduced into, the reply. (Byrne v. Duckett, 10 L. R. Ir. 24.)

In settling a pleading no allegation which is scandalous must Scandalous be introduced. Order XIX. r. 27, provides that the Court or a allegations. judge may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which is unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action. But

Inconsistent facts may be pleaded.

Honduras
Co. v.
Lefevre.

Child v.

an averment is not scandalous within the meaning of this rule, merely because it makes a serious, and in one sense scandalous, imputation upon another. An imputation of the kind is only scandalous when, in addition, it is irrelevant to the subjectmatter of the action. "Nothing can be better settled," said the Lord Chancellor in Millington v. Loring (6 Q. B. D. 190; 43 L. T. 657; 50 L. J. Ch. 217); "than that if relevant allegations cannot be struck out as scandalous." The rule, therefore, against pleading scandalous matter amounts to little, if anything, more than the rule against unnecessary and irrelevant allegations.

The plaintiff may, in the body of his statement of claim, set out inconsistent facts in support of inconsistent claims for relief. The rule is a necessary corollary to the large powers of joining parties given by Order XVI., and by Order XX., r. 6," Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative." Order XIX., r. 24, also contemplates the pleading of inconsistent allegations. As already stated it provides that, whenever any contract or relation between persons is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact; "and if, in such a case, the person so pleading desires to rely, in the alternative, upon more contracts or relations than are to be implied from such circumstances, he may state the same in the alternative."

In Honduras Inter-Oceanic Railway Company v. Lefevre and Tucker (L. R. 2 Ex. D. 301; 46 L. J. Ex. 391; 36 L. T. 46; 25 W. R. 310), the plaintiff pleaded that the defendant Tucker, as Lefevre's agent, made a certain contract with him, and in the alternative he alleged that Tucker did not have any authority from Lefevre, but represented to the plaintiff that he had; and the claim then wound up with a prayer for specific performance, and damages against Lefevre or for specific performance and damages against Tucker. It was held by the Court of Appeal that this mode of pleading was

correct.

To the same effect is the case of Child v. Stenning and Stenning. another (L. R. 7 Ch. D. 413; 47 L. T. Ch. 371; 38 L. T. 232; 26 W. R. 265). There the plaintiff, who was lessee of

certain lands, alleged that the defendant Stenning had entered
upon them without any title and trespassed, and in the alterna-
tive he pleaded that the other defendant, Wagner, who was
his lessor had, in breach of a covenant for quiet enjoyment,
authorised Stenning to enter on the lands.
damages against the defendants in the alternative. Fry, J.,
held that the plaintiff was entitled to plead in this way.

He claimed Inconsis

tent facts

may be pleaded.

Easton.

In Bagot v. Easton (7 Ch. D. 1; 47 L. J. Ch. 225; 37 L. T. 369; 26 W. R. 66), the plaintiff alleged that the defendant and he had entered into an agreement by which the plaintiff was to put a sum of £2,400 into a concern and go out to South America and work certain estates for the joint benefit of himself, the defendant, and a third person; that the agreement of partnership was only to be for three years in the first instance, but the plaintiff was to have the right of continuing it for a term of twenty-one years if he chose. The Bagot v. claim then alleged that the plaintiff went to South America, and greatly improved the estates in question, but that the defendant refused to continue the enterprise any longer, had sent a person out to South America to stop the working of the estates, and refused to honour drafts drawn by the plaintiff for the ordinary purposes of the enterprise, and according to the agreement. The claim also averred that the plaintiff was induced to enter into the agreement by the representations of the defendant that the enterprise would be very beneficial for the plaintiff, and that he and his cousin were to be partners in the adventure not only for three years, but for the further term of twenty-one years, and that he executed the agreement with the intention and in the belief that the rights of partners would be thereby secured to his cousin and himself. The plaintiff claimed a declaration that he was induced to execute the agreement and to give a security by which the defendant was enabled to obtain payment of the £2,400 by the misrepresentation of the defendant and in ignorance of the true effect of such agreement, a recission of the agreement and repayment of the £2,400, and a declaration that the plaintiff was entitled to a lien on all the assets of the adventure for the £2,400, or in the alternative a dissolution of the partnership between the plaintiff and the defendant, and to have the partnership accounts taken and assets realised and distributed.