Mode of pleading.]—Under the practice now in force (see O. XIX. r. 1) the principal rules to be observed in pleading are as follows:

By O. XIX. r. 2, pleadings are to be as brief as the nature of the case will admit," and the costs occasioned by any unnecessary prolixity may be ordered "to be borne by the party chargeable with the same."

By O. XIX. r. 4, "Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures, and not in words." (For that part of the rule which relates to signature of pleadings, see post, p. 14.)

By O. XIX. r. 5, "The forms in Appendices C., D., and E., when applicable, and where they are not applicable, forms of the like character, as near as may be, shall be used for all pleadings, and where such forms are applicable and sufficient, any longer forms shall be deemed prolix, and the costs occasioned by such prolixity shall be disallowed to or borne by the party so using the same, as the case may be." (See these forms cited under the various headings, post.)

Under these rules it is a first principle of pleading that facts only are to be stated, and, except where the party pleading relies upon foreign or colonial law, &c., or private Acts of Parliament (as to which see post, p. 11), matters of law or mere inferences of law should not be stated as facts. If any party seeks to raise a point of law by his pleading, as, for instance, if he wishes to plead an objection to the effect that the facts stated by his adversary are insufficient in law to support his adversary's claim or defence, the proper mode of doing so is that pointed out by 0. XXV. (See "Proceedings in lieu of Demurrer," post, p. 598.) As to other modes of raising questions of law, as by special case or by motion for judgment on admissions in pleadings, see O. XXXIV. and XXXII. r. 6.

Mere evidence of facts, as distinguished from the facts themselves, must not be pleaded. (O. XIX. r. 4, supra.) This rule applies, inter alia, to admissions relied upon merely by way of evidence. (See 0. XX. r. 8, cited "Accounts Stated," post, p. 85; Davy v. Garrett, 7 Ch. D. 473, 485; 46 L. J. Ch. 218; Williamson v. L. & N. W. Ry. Co., 12 Ch. D. 787; 49 L. J. Ch. 559, decided under the former rules; Spedding v. Fitzpatrick, 38 Ch. D. 410, 414; 58 L. J. Ch. 139; Briton Medical Life Assoc. v. Britannia Fire Assoc., 59 L. T. 888.)

The same prohibition of pleading evidence was contained also in the repealed O. XIX. r. 4, with reference to which Brett, L. J., made the following observations: "The distinction is taken in the very rule itself, between the facts on which the party relies and the evidence to prove those facts. Erle, C. J., expressed it in this way. He said there were facts that might be called the allegata probanda, the facts which ought to be proved, and they were different from the evidence which was adduced to prove those facts." (Philipps v. Philipps, 4 Q. B. D. at pp. 132, 133; 48 L. J. Q. B. 135.)

The facts pleaded should be pleaded with "certainty," that is, they should be distinctly stated as facts, and not be left to be inferred from vague or ambiguous expressions, or from statements of circumstances consistent with a different conclusion. (See "Fraud," post, p. 435; Philipps v. Philipps, supra.) It is one of the principal objects of the present rules to prevent unnecessary prolixity in the pleadings. Only such facts should be pleaded as are material to the case of the party pleading. (O. XIX. r. 4; Millington v. Loring, 6 Q. B. D. 190; 50 L. J.

Q. B. 214.) The material facts must be stated in a summary form, and as briefly as the nature of the case will admit, and the pleader is required to adopt or follow, as nearly as the circumstances will allow, the concise forms which are given in Appendices C., D., and E. (See O. XIX. rr. 2, 4, 5, 15, cited pp. 7, 546; Philipps v. Philipps, supra; Davy v. Garrett, 7 Ch. D. 473, 480-482; 47 L. J. Ch. 218; Scott v. Sampson, 8 Q. B. D. 491; 51 L. J. Q. B. 380; Davis v. James, 26 Ch. D. 778; 53 L. J. Ch. 523; Darbyshire v. Leigh, (1896) 1 Q. B. 554; 65 L. J. Q. B. 360.) It seems that the material facts which are required to be pleaded in a statement of claim in an action for damages are not confined to facts which are material as constituting the cause of action, but include also facts which are material as showing the nature and extent of the injury in respect of which damages are sought to be recovered, and which are intended to be proved at the trial in aggravation of damages. (See Millington v. Loring, 6 Q. B. D. 190; 50 L. J. Q. B. 214; Lumb v. Beaumont, 49 L. T. 772; Whitney v. Moignard, 24 Q. B. D. 630; 59 L. J. Q. B. 324; though see Wood v. Earl of Durham, below cited.) It has been held, however, that a defendant is not in general entitled to plead in his defence facts which do not affect the cause of action and merely go in mitigation of damages. (Wood v. Earl of Durham, 21 Q. B. D. 501; 57 L. J. Q. B. 547.)

By O. XIX. r. 6, "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary) shall be stated in the pleading; provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading."

The forms referred to in this rule are the forms in Appendices C., D., and E. (See O. XIX. r. 5, cited ante, p. 7.) For an instance of a form stating that particulars of damages exceed three folios and have been delivered separately, see App. C., Sect. V., No. 9, cited "Landlord and Tenant," post, p. 259.

If sufficient particulars are not given in the pleading in cases within the above rule, the opposite party may obtain an order for a further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in such pleading. (See O. XIX. r. 7, cited "Particulars," post, p. 37.)

As to particulars generally, see "Particulars," post, p. 37.

The division of a pleading into paragraphs is now only required "when necessary." (0. XÎX. r. 4, supra.) It appears from the forms given in the Appendices, that pleadings in simple cases may be properly stated in a single paragraph, although such paragraph may contain several distinct allegations. But by O. XX. r. 7, "Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct grounds, they shall be stated, as far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-off, or counterclaim founded upon separate and distinct facts." In such cases, therefore, the pleading should be divided into paragraphs so as to arrange the different facts relied upon in a distinct and convenient form. Even in the statement of a single cause of action or ground of defence, &c., the same course may also be necessary where the case of the party pleading involves the statement of various distinct facts.

In actions on contracts where the contract relied upon is in writing, that

fact should, in general, be stated (see the Forms in App. C. and D.; Turquand v. Fearon, 40 L. T. 543), and if the party pleading does not state or show whether the contract relied upon by him was in writing or not, or does not give sufficient particulars with respect to it, the opposite party may, where necessary, obtain an order for particulars as to these matters. (See O. XIX. r. 7, cited "Particulars," post, p. 37.)

In stating a written contract, or other document relied upon, whether under seal or not, it is open to the pleader either to state it according to its legal effect, or where the precise words of the document are material and can be stated without prolixity, to set out the document itself (or the material parts thereof) verbatim. This was so before the Judicature Acts, and is so still; for it is provided by O. XIX. r. 21, that "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."

Where the legal effect of the document is stated, the pleader takes upon himself to give the true meaning of the instrument, whatever its terms may be; where the document is set out verbatim, he leaves the construction of it to the Court, except that the meaning is often necessarily assumed in alleging the breach. In the generality of cases, the best and most usual course is to state the legal effect of the documents relied on, especially where they are lengthy or numerous; but where the meaning is doubtful, and it is wished to raise in the easiest and most direct form the question of their sufficiency to support the action, it may be advisable to set them out verbatim where that can be done without unduly lengthening the pleading. (See App. C., Sect. IV., No. 10, cited "Guarantees," post, p. 214.)

A pleading which sets out verbatim immaterial documents, or documents which are only material as containing matter of evidence (as, for instance, admissions by the opposite party), may be liable to be struck out under O. XIX. r. 27, cited post, p. 11. (See Davy v. Garrett, post, p. 12.) In some cases, however, the precise words of a document not only are material, but must be necessarily inserted verbatim in the pleading. Thus the plaintiff in an action for libel is bound to state the precise words of the libel complained of, and must therefore set out verbatim in his statement of claim so much of the document in question as contains the alleged libel. (Harris v. Warre, 4 C. P. D. 125; 48 L. J. C. P. 310; Darbyshire v. Leigh, (1896) 1 Q. B. 554; 65 L. J. Q. B. 360; see Defamation," post, p. 402.) Where the legal effect of a document is stated, it is not necessary to follow the words of the instrument. (1 Marsh. 216, 217.) Generally, however, the safest and best course, even in pleading an instrument according to its legal effect, is to follow the terms and order of the document itself, so far as practicable with due regard to conciseness, instead of attempting to reform it or to use supposed equivalent expressions, but to omit all portions of the document not material to the case. Where it is necessary to state the pleadings in a previous action, their effect should be concisely stated, so far as material, and it is not necessary to set them out in full. (Houston v. Sligo, 29 Ch. D. 448; "Estoppel," post, p. 695; and see Knowles v. Roberts, 38 Ch. D. 263.)

Where a written contract or other document relied upon by the plaintiff is stated in the statement of claim according to the legal effect attributed to it by the plaintiff, and the defendant, while admitting the document itself, wishes to dispute the construction thus put upon it, he may raise the question of its sufficiency to support the action, either by

pleading a denial that it is to the effect alleged, and stating its effect according to his own construction, or by simply setting out the document verbatim in the statement of defence, with an allegation that it is the contract mentioned or referred to in the statement of claim. If the document is lengthy, or if numerous documents are relied upon, or if the point of construction does not go to the whole or a substantial part of the cause of action, the defendant's better course in such a case is usually to plead such denial as above mentioned, with a short statement of the real effect of the documents according to his own contention. (See "Proceedings in lieu of Demurrer," post, p. 600; "Agreements," post, p. 618.) If, however, the document or documents can be set out verbatim without prolixity, and the point of construction goes to the whole or to a substantial part of the cause of action, it may in some cases be proper and advisable to set out the document or documents verbatim in the defence. In the latter case, where the document is set out verbatim by way of a distinct defence, the plaintiff, unless he can show that the document set out is not the document on which he relies, or is incorrectly set out by the defendant, may be obliged either to amend his statement of claim or to raise the question of construction by pleading an objection in point of law. (See Ib.)

Where a contract or other document is stated verbatim, the pleading must in some way show its application to the facts stated, as by identifying the parties, &c., and it may sometimes be necessary to add an express allegation for this purpose.

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By O. XIX. r. 24, Whenever any contract or any relation between any 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 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." (See App. C., Sect. II., Forms Nos. 11, 12.)

By O. XIX. r. 22, "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." (See R. S. C., 1883, App. C., Sect. VI., Forms Nos. 13, 14 and 15; and see "Fraud," post, pp. 436, 707; "Defamation," post, p. 405; "Malicious Prosecution," post, p. 460.)

By O. XIX. r. 23, "Wherever 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." (See forms of defence alleging notice, under "Bills of Exchange," post, p. 646; "Landlord and Tenant," post, p. 759; "Master and Servant," post, p. 783.)

By O. XIX. r. 25, "Neither party need in any pleading allege any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied: e.g., consideration for a bill of exchange, where the plaintiff sues only on the bill, and not for the consideration as a substantive ground of claim.". (See "Bills of Exchange, &c.," post, p. 130.) The following presumption may be here mentioned as specially important to the pleader, viz., there is a presumption of the continuance of the existing state of things, in the absence of any statement to the

contrary; that is to say, if a particular state of things is once alleged in the pleadings as existing, it is, in general, presumed that that state of things has continued, unless the pleadings contain something to negative it. (See Gyse v. Ellis, 1 Stra. 228.)

It is unnecessary to plead matters of which the Court takes judicial notice. The Court takes judicial notice not only of the law of the realm, but also of the general law of nations; the law and custom of Parliament, including the privileges and procedure of each branch of the legislature; the prerogatives of the Crown: the maritime and ecclesiastical laws; the articles of war, both in the land and marine service; royal proclamations; the custom of merchants where such custom has been settled by judicial determinations; the special customs of gavelkind and borough English lands; the customs of the city of London, which have been certified by the Recorder; the rules and course of procedure of the Superior Courts, and the limits of their jurisdiction; the power of the Ecclesiastical Courts, and the limits of their jurisdiction; the division of England into counties, provinces, and dioceses; the commencement and ending of legal terms and sittings; the coincidence of the years of the reign of any sovereign of this country with the years of our Lord; the coincidence of the days of the week with days of the month; the order of the months; the meaning of ordinary English words and terms of art; the names and quantities of legal weights and measures; and the value of the coin of the realm.

But judicial notice is not taken of private Acts of Parliament; nor of foreign or colonial law; nor of Scotch law; nor of particular local customs or usages of trade; nor of the jurisdiction of inferior Courts; nor of the laws, usages, or customs of foreign countries or courts of justice; nor of the situation of any particular place. Any of these matters when relied upon must be alleged like other facts; and even in the case of relying on those things of which the Court takes judicial notice, it is necessary to allege any facts which are required to apply them to the plaintiff or defendant, or to the facts on which the right of action or defence rests.

A more complete enumeration of the matters of which the Court does or does not take judicial notice (including those above stated) may be found in Roscoe's N. P. Ev., 16th ed., pp. 80-84, and in Taylor on Evidence, 9th ed., pp. 3 et seq.

By O. XIX. r. 14," Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly 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." (See "Conditions Precedent," post, p. 188.)

By Ó. XIX. r. 26, "No technical objection shall be raised to any pleading on the ground of any alleged want of form." (See "Proceedings in lieu of Demurrer,” post, p. 599.) This rule is not intended to dispense with the requirements of the previous rules as to the form of pleadings. (See Marshall v. Jones, 52 J. P. 423.) Nor is it intended to apply to cases where the pleading is drawn in such a manner as to prejudice, embarrass or delay the fair trial of the action, as such cases are provided for by the following rule.

By O. XIX. r. 27, "The Court or a judge may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action; and may in