O. XVIII, rr. 7-9.

135 Rules 1, 8, 9.

136 Remedy for misjoinder.

137

Order for exclusion.

7. The last three preceding Rules shall be subject to Rules 1, 8 and 9 of this Order. O. 18, r. 7, (E).

8. Any defendant alleging that the plaintiff has united in the same action several causes of action which cannot be conveniently disposed of together, may at any time apply to the Court or a Judge for an order confining the action to such of the causes of action as may be conveniently disposed of together. O. 18, r. 8, (E).

9. If, on the hearing of such application as in the last [Cf. R. 237, (0)). preceding Rule mentioned, it shall appear to the Court or a Judge that the causes of action are such as cannot all be conveniently disposed of together, the Court or Judge may order any of such causes of action to be excluded, and consequential amendments to be made, and may make such order as to costs as may be just. O. 18, r. 9, (E).

O. XVIIIα., rr. 1-3.

138 Indorsement.

139 Notice of trial.

140 Application by defendant

of claim.

ORDER XVIIIa.

TRIAL WITHOUT PLEADINGS.

A plaintiff may without pleadings proceed to trial, subject to the following rules:

1. The indorsement of the writ of summons shall contain a statement sufficient to give notice of the nature of his claim or of the relief or remedy required in the action, and shall state that if the defendant appears, the plaintiff intends to proceed to trial without pleadings. O. 18a., r. 1, (E).

2. Within ten days after appearance the plaintiff shall serve twenty-one days' notice of trial without pleadings. Such notice shall be in form No. 17 (a), Appendix B., with such variations as circumstances may require. O. 18a., r. 2, (E).

3. The defendant may within ten days after appearance for statement apply by summons for the delivery of a statement of claim, and on such summons the Judge may order (1) that a statement of claim shall be delivered, in which case the action shall proceed in the usual manner; or (2) that the action shall proceed to trial without pleadings, in which case it may be further ordered, if the Judge thinks fit, that either party shall deliver particulars of his claim or defence. O. 18a. r. 3, (E).

rr. 4-6. 141

Particulars.

4. When the Judge orders that the action shall proceed to 0.XVIII., trial without pleadings, and makes no order as to particulars, all defences shall be open at the trial to the defendant. Where particulars are ordered to be delivered, the parties shall be bound by such particulars, so far as regards the matters in respect to which the order for particulars was made. 0.18a., r. 4, (E).

142

defences.

5. Where a defendant has not taken out a summons under Special Rule 3 of this Order, he shall not be allowed to rely on a setoff or counterclaim, or on the defence of infancy, coverture, fraud, or Statute of Limitations, unless he has given (within ten days after appearance) notice to the plaintiff, stating the grounds and particulars upon which he relies. O. 18a., r. 5, (E), am.

143

pleadings.

6. When a plaintiff indorses the writ of summons with a Order for statement that, if the defendant appears, he intends to proceed to trial without pleadings, no pleadings shall be required or delivered, except by order of the Judge made under Rule 3 of this Order. O. 18a., r. 6, (E).

ORDER XIX.

O. XIX, r. 1.

PLEADING GENERALLY.

144

pleadings.

1. The plaintiff shall, subject to the provisions of Order Delivery of XX., and at such time and in such manner as therein prescribed, deliver to the defendant a statement of his claim, and of the relief or remedy to which he claims to be entitled. The defendant shall, subject to the provisions of Order XXI., and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counterclaim (if any), and the plaintiff shall, subject to the provisions of Order XXIII., and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counterclaim. Such statements shall be as brief as the nature of the case will admit, and the proper officer in taxing and adjusting the costs of the action shall, at the instance of Costs of any party, or may, without any request, inquire into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same. O. 19, r. 2, (E).

prolixity.

O. XIX, rr. 2-5. 145

Set-off and

2. A defendant in an action may set off, or set up by way of counterclaim against the claims of the plaintiff, any counterclaim. right or claim, whether such set-off or counterclaim sound in [Cf. RR. 251, 252, (O)]. damages or not, and such set-off or counterclaim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court or a Judge may, on the application of the plaintiff before trial, if in the opinion of the Court or Judge such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof. O. 19, r. 3, (E).

146

Pleadings to state material

facts, and not [Cf. R. 268, (0)].

evidence.

Forms.

147

148

be given where

necessary.

3. 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. Signature of counsel shall not be necessary; but where pleadings have been settled by counsel they shall be signed by him; and if not so settled they shall be signed by the solicitor, or by the party, if he sues or defends in person. O. 19, r. 4, (E).

4. 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. O. 19, r. 5, (E).

Particulars to 5. 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. O. 19 r. 6, (E).

O. XIX.

rr. 6-11. 149 Further and

lars, etc.

6. A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding better particurequiring particulars, may in all cases be ordered, upon such [R. 299, (O)]. terms, as to costs and otherwise, as may be just. O. 19, r. 7, (E).

150

for particulars

7. The party at whose instance particulars have been when order delivered under a Judge's order shall, unless the order other- a stay. wise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time." O. 19, r. 8, (E).

151 Written or

8. Every pleading may be either written or printed, or printed partly written and partly printed. O. 19, r. 9, (E), am.

pleadings. R. 265, (O)].

152

pleadings.
(Cf. R. 266, (O)).

9. Every pleading or other document required to be Delivery of delivered to a party, or between parties, 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 for any, party, then such pleading or document shall be delivered by being filed with the proper officer. O. 19, r. 10, (E).

153

10. Nothing in these rules contained shall affect the right Plea of "Not Guilty by of any defendant to plead Not Guilty by statute. And every statute. [Cf. RR. 286, defence of Not Guilty by statute shall have the same effect as 287, (0)). a plea of Not Guilty by statute has heretofore had. Where a defendant pleads Not Guilty by statute, he shall insert in the margin of the paragraph containing the plea, the words "By Statute," with the year of the reign in which the Act of Parliament upon which he relies was passed, and the Chapter and section of the Act, otherwise the plea shall be taken not to have been pleaded by virtue of an Act of Parliament. O. 19, r. 12, (E), am.

denial.

154

11. Every allegation of fact in any pleading, not being a specific petition or summons, if not denied specifically or by necessary (Cf. R. 272, (O)]. implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition. O. 19, r. 13, (E).

0. XIX, rr. 12-17.

155 Condition procedent.

156 Pleadings to raise all grounds of defence or reply.

[R. 271, (O)].

157 Departure. [R. 288, (0)].

158 Denial to be specific.

159 Joinder of issue.

160 Evasive denial.

12. 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. O. 19, r. 14, (E).

13. The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as, for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds. O. 19, r. 15, (E).

14. No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. O. 19, r. 16, (E).

15. It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages. O. 19, r. 17, (E).

16. Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any), subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted. O. 19, r. 18, (E).

17. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance.