The pleadings must contain the material facts sufficient to make a claim in his favor, and statement of the capacity in which the party sues or is sued.

English procedure, as in the code states of the United States, has abolished technical forms of pleading, and no technical objection for lack of form can be made (0. 19, r. 26). It is a mistake, however, to say that objections may not be made to a pleading, for it must still state sufficient ultimate facts to make a claim, defense, or counterclaim, as the party's contention may be (O. 19, r. 4; Odger's Plead. & Prac. 141). If it does not do so, the party objecting may raise the point in his own pleading (0. 25, r. 2). Application may be made to have struck out or amended any matters 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 (O. 19, r. 27); and if the facts stated do not give sufficient notice, the opposite party may apply for further and better particulars (0. 19, r. 7).

31. SAME PLEADING-FORMS.-Although no no technical objections may be raised to any pleading on the ground of any alleged want of form, yet by Order 19, rule 5, it is provided that the forms furnished in certain appendices to the rules, when applicable, must be used, and that where they are not applicable, use must be made of forms of like character, as near as may be. Breach of the rule subjects the offending party to costs, in the discretion of the judge or master. These forms are not always to be followed, as they may be insufficient for the case at bar, as, in fact, they have been held to be in certain instances. (The Isis, 8 P. D. 227; Wethered v. Cox, W. N. (1888) 165). But they are a valuable means to secure brevity by their very example. They are to be found in three appendices to the rules, the first covering the plaintiff's statement of Claim and the Special Indorsement on the Writ of Summons, the second to Defences, and the third to the Reply. After a general form for the caption, the substance of the form for different actions is stated. They are not so extensive as to cover every situa

tion and there are a number of form books published by persons of experience, including one of the practice masters. But as stated, they are valuable as teaching brevity of expression, as will be seen by the following examples:

(Caption)

No. 5, App. C, Sec. II.

Statement of Claim.

1. The plaintiff is mortgagee of lands belonging to defendant.

2.

gage:

The following are the particulars of the mort

(a) (Date and names of mortgagor and mortgagee.) (b) (Sum secured.)

(c) (Rate of interest.)

(d) (Property subject to mortgage.)

(e) (Amount now due.)

(If the plaintiff's title is a derivative title, state shortly the assignments under which he claims.)

of

(If the plaintiff is a mortgagee in possession add:) 3. The plaintiff took possession of the mortgaged property on the , and is ready to account as mortgagee in possession for that time. The plaintiff claims payment, or, in default, sale, or foreclosure (and possession).

(Signed)

Delivered.

(Note-If a judgment for personal payment against the mortgagor is sought, the claim should set out the usual mortgagor's covenant for payment of the mortgage debt and interest, as decided in Wethered v. Cox, W. N. (1888) 165.)

The following is a form for a "defense" to an action to foreclose, so far as the different grounds are applicable.

(Caption)

No. 1, App. D., Sec. II.

1. The defendant did not execute the mortgage. 2. The mortgage was not assigned to the plaintiff. (If more than one assignment is alleged, say which is denied.)

3. The debt is barred by the Statute of Limitations.

4. Payments have been made, viz:

5.

of

The plaintiff took possession on the
and has received the rents ever since

6. The plaintiff released the debt by deed, dated June 1, 1899.

7.

The defendant conveyed his interest to A. B. by deed dated November 5, 1897.

1. The plaintiffs are executors of A, deceased. 2. From the year 1895 until his death, A employed the defendant as his confidential agent in the management of a large building estate at

3. The defendant as such agent received large sums of money for the said A, for which he refuses to account.

The plaintiffs claim:

1. Accounts of all sums received and paid by the defendant as agent of A.

2. Payment of the amount found due.

(Signed)

Delivered.

(Note-In the United States, the statement in No. 1, above, should state the court making the appointment. In England this is unnecessary, since there is but one jurisdiction.)

In an action for specific performance:

(Caption)

No. 12 App. C, Sec. II.

day of

1. By agreement (or letters) dated (or made verbally at interviews on or about) the the plaintiff agreed to sell to the defendant the Home Farm, Kent, for The sale was to be

completed on the

of

(If the agreement

was verbal add:)

2. The agreement entered into has been part performed as follows: (state how)

The plaintiff claims specific performance of the above agreement.

(Signed)
Delivered.

(Note-In some jurisdictions of the United States, plaintiff must state a willingness to convey.)

To the above, so far as applicable, the following "defence" might be made:

(Caption)

No. 4, App. D, Sec. II.

1. The defendant did not enter into the agreement. 2. A B was not the agent of the defendant (if alleged by plaintiff).

3. The plaintiff has not performed the following conditions: (Conditions.)

4. The defendant did not- (Alleged acts of part performance).

5. The plaintiff's title to the property agreed to be sold is not such as the defendant is bound to accept by reason of the following matters: (State why.)

with.

The Statute of Frauds has not been complied

7. The Agreement is uncertain in the following respects: (State them.)

8. (or) The plaintiff has been guilty of delay;

9. (or) The plaintiff has been guilty of fraud (or misrepresentations);

10. (or) The agreement is unfair;

11. (or) The agreement was entered into by mistake.

The following are particulars of 8, 9, 10, 11 (or as the case may be).

12.

The agreement was rescinded under conditions. of sale No. 11 (or by mutual agreement).

(Signed)
Delivered.

(In cases where damages are claimed and the defendant disputes his liability to damages, he must deny the agreement or the alleged breaches, or show what

ever ground of defence he intends to rely on, e. g., Statute of Limitations, accord and satisfaction, release, fraud, etc.)

These forms are admirable in that they secure simplicity by a brief schedule of the points. They omit even the words, "The plaintiff for his cause of action," and, under the modern rules as to appearances, that worse than useless formula, "Comes now the plaintiff and." They number the points for convenience of the adversary party in pleading thereto, and the prayer for relief is reduced to a simple claim, which is also tabulated. Except as to the particularity required in the United States as to representative and corporate capacity and except as to the omission in England of the performance of conditions precedent, these forms would in general be good in the various state jurisdictions having the code procedure. For the purposes of litigation, the tabulation of the ultimate facts are better than their narration in the most approved literary style.

32. SAME OMISSION OF PERFORMANCE OF CONDITIONS PRECEDENT.-The common law rule by which a party had to allege and prove the performance on his part of a condition precedent to the right to sue was altered by O. 19, r. 14, so that such performance is implied in his pleading; if the adversary party desires to litigate the fact that a certain condition precedent has not been performed, he must "distinctly specify" it in his own pleading. Thereupon, the party who should have performed the condition or in whose favor the condition must have occurred, must prove such performance or occurrence. The advantage of this rule is twofold: (1) It simplifies the pleading to that extent; and (2) it relieves the case of a hidden pitfall at the trial, for it often happens that a party has a perfectly good cause of action but has neglected to perform a condition precedent, such as demand, etc., or has omitted through oversight to gather proof of its occurrence. Under the present practice in the United States the adversary need not call attention to the failure to plead the performance or occurrence and at the close of the party's evidence, he may demur thereto on the ground of a