CHAPTER VII. AMENDING AND STRIKING OUT PLEADINGS. SECTION I. Amendment by Parties of their own Pleadings II. Compelling Amendment of, or striking out, or setting aside PAGE 136 138 SECTION I. AMENDMENT BY PARTIES OF THEIR OWN PLEADINGS (A). 1. Application to disallow Amendment made without Leave (b). [Formal parts as usual] for an order that the amendment made by the plaintiff [or defendant] in his statement of claim [or set-off and counter-claim] under Order XXVIII., Rule 2 [or Rule 3], be disallowed, and that the costs of this application be (a) Amending without Leave-Claim.]—By Ord. XXVIII., r. 2, "The plaintiff may without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared." The time limited for reply is twenty-one days from delivery of defence (Ord. XXIII., r. 1). -Set-off or Counter-Claim.]—By Ord. XXVIII., r. 3, “A defendant who has set up any counter-claim or set-off may, without any leave, amend such counter-claim or set-off at any time before the expiration of the time allowed him for answering the reply, and before such answer, or in case there be no reply then at any time before the expiration of twenty-eight days from defence." Mode of making Amendments.]—By Ord. XXVIII., r. 8, " An indorsement or pleading may be amended by written alterations in the copy which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the document difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the document as amended." By Ord. XXVIII., r. 9, "Whenever any indorsement or pleading is amended, the same when amended shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz.: ' Amended day of pursuant to order of -, dated the of." (See Hanmer v. Clifton, [1894] 1 Q. B. 238.) Time for delivering amended Pleadings.]—By Ord. XXVIII., r. 10, "Whenever any indorsement or pleading is amended, such amended document shall be delivered to the opposite party within the time allowed for amending the same." Costs of Amendments made without Leare.]—By Ord. XXVIII., r. 13, "The costs of and occasioned by any amendment made pursuant to rr. 2 and 3 of this Order shall be borne by the party making the same, unless the Court or a Judge shall otherwise order." (b) Application to disallow Amendment made without Leave.]—By Ord. XXVIII., 2. Application for Leave to amend (c). Formal parts as usual] for an order that the plaintiff [or defendant] be at liberty to amend his statement of claim [or defence, or, &c.] by · [stating the proposed amendment. Or say, in the manner shown in red ink in the copy thereof delivered herewith]. 3. Order thereon. The order may easily be framed from the summons; a time within which the amendment is to be made should be, and usually is, limited by it. Provision for pleading by the opposite party should, if necessary, be made. As a rule, the order need not be drawn up (Ord. LII., r. 14). r. 4, "Where any party has amended his pleading under either of the last two preceding Rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court, or a Judge, to disallow the amendment, or any part thereof, and the Court or Judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just." Leave to plead or amend where Opposite Party amends without Order.] - By Ord. XXVIII., r. 5,“ Where any party has amended his pleading under Rule 2 or 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead, or within eight days from the delivery of the amendment, whichever shall last expire; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment." (c) Leave to amend Pleadings.]—By Ord. XXVIII., r. 1," The Court or a Judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." By Ord. XXVIII., r. 6, “In all cases not provided for by the preceding Rules of this Order, application for leave to amend may be made by either party to the Court or a Judge, or to the Judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." Very extensive powers of amendment are given by these Rules, and as a general rule leave to amend ought not to be refused unless the Court is satisfied that the party applying for it is acting malâ fide, or has caused some injury to the other side which cannot be compensated by payment of costs (see 1 Prac. 14th ed. p. 316). As a general rule an affidavit in support of the application is not required; but in some cases, as where there has been much delay or there is any suspicion of mala fides, it is advisable to have one showing the grounds on which the application is made and the necessity for the amendment. Effect of not amending pursuant to Leave.]-By Ord. XXVIII., r. 7, " If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a Judge." 4. Form of amended Pleading. The amendments may be made in the manner pointed out by Ord. XXVIII., rr. 8, 9, ante, p. 136, n. (a). The word Amended should be inserted before the description of the pleading. In the case of a pleading amended without leave the words, Amended and redelivered the 19-, pursuant to R. S. C., Order XXVIII., Rule 2 (or 3), should be added after the description. When the amendment is made with leave, the words, Amended and redelivered the day of day of day of pursuant to order of 19- • 19-, should be added. dated the SECTION II.-COMPELLING AMENDMENT OF, OR STRIKING OUT, OR SETTING ASIDE PLEADINGS OF THE OPPOSITE PARTY (d). 1. Application to compel Amendment of or to strike out Pleadings (d). [Formal parts as usual] for an order that the plaintiff's statement of claim [or defendant's defence, or the paragraph of, &c., or so much of the, &c., as alleges that, &c., or as the case may be] be amended or struck out on the ground that the same [is unnecessary and] [scandalous and] [contrary to the rules of pleading and] tends to prejudice, embarrass or delay the fair trial of this action [if the pleading is irregular, this and the next form may be combined], and that the plaintiff [or defendant] do pay to the defendant [or plaintiff] the costs of and occasioned by such striking out or amendment, and this application [and that the have days further time to deliver his after such amendment] [and that in the meantime all further proceedings be stayed]. [The order may be framed from the terms of the application. The Master may order such terms as to costs and otherwise as he thinks fit.] 2. Application to set aside or compel Amendment of Pleading as irregular (e). Formal parts as usual] for an order that the plaintiff's [or defendant's] statement of claim [or defence, or paragraph of the plaintiff's, &c.] be set aside as irregular [or amended] on the grounds that [here state the grounds, as, for example, the same is not in compliance with the Rules of the Supreme Court, Order XIX., Rule -], and that in the meantime all further proceedings be stayed, and that the plaintiff [or defendant] do pay the costs of and occasioned by this application. [An order may be framed from the terms of the above application.] (d) By Ord. 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 any such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client." See 1 Prac. 14th ed. 318. By Ord. XIX., r. 26," No technical objection shall be raised to any pleading on the ground of any alleged want of form." (e) See Ord. LXX., post, Part V., Chap. XV. CHAPTER VIII. PLEADING MATTERS ARISING AFTER THE COMMENCEMENT OF THE ACTION. 1. Defence of Matter arising pending Action when Defendant has not delivered his Defence (a). The same as in ordinary cases, but stating that the subject-matter of defence arose" after the commencement of this action." 2. Reply to a Set-off or Counter-claim of Matter arising after Delivery of Defence, but before Delivery of Reply. The same as in ordinary cases, but stating the matter to have arisen "after the delivery of the defendant's defence, [set-off and counter-claim]." 3. Application for Leave to plead a further Defence or a further Reply to a Set-off or Counter-claim of Matters arising after Delivery of Defence or of Reply (b). [Formal parts as usual] for an order that the defendant [or plaintiff] be at liberty to deliver a further defence [or further reply to the defendant's set-off or counter-claim] herein [in the form hereunto annexed or served herewith] of matter arising after the delivery of his defence [or reply] herein. [An order may be framed from the terms of the application (b).] (a) Pleading Matter of Defence to Claim, Set-off or Counter-claim arising after Action brought and before Delivery of Defence or Reply.]—By Ord. XXIV., r. 1, “Any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be raised by the defendant in his statement of defence, either alone or together with other grounds of defence. And if, after a statement of defence has been delivered, any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be raised by the plaintiff in his reply, either alone or together with any other ground of reply." Matters arising after action brought should be pleaded as so arising. If it is not so pleaded, the opposite party may apply to compel an amendment of the pleading (1 Prac. 14th ed. 230). A counter-claim arising after action may be set up by the defendant (Beddall v. Maitland, 17 Ch. D. 174; 44 L. T. 248). It must however, be properly pleaded as so arising (Ellis v. Munson, C. A., 35 L. T. 585). The plaintiff may in his reply set up, against a count er-claim of the defendant, a counter-claim arising after or before action brought (Toke v. Andrews, 8 Q. B. D. 428; Renton v. Neville, [1900] 2 Q. B. 181). (b) Leace to deliver further Defence or further Reply to Set-off or Counter-claim.]— By Ord. XXIV., r. 2, "Where any ground of defence arises after the defendant has 4. Affidavit of Truth of Defence or Reply, and of the Time within which the Matter of it arose (c). I, C. D., of [Title, &c., as usual.] the above-named defendant [or plaintiff], make oath and say that the matter of defence [or reply] in the draft produced and shown to me, marked now is true in substance and fact,* and that the same arose on the day of Sworn [&c., as usual; see post," Affidavits"]. C. D. 5. The like, in another Form, where the Defence or Reply states a Variety of Matters as Inducement. [Same as in the preceding form to the asterisk*, and then thus:] and that the was made [or that the may be] on the day of months expired, as the case last, and that the matter of defence [or reply] arose on that day [or that the matter of the defence (or reply) arose at the expiration of those months, as the case may be]. 6. Further Defence or Reply. day of The formal parts of the defence or reply will be as usual, except that the pleading should be entitled further defence or further reply, as the case may be, and should be stated to be delivered pursuant to the order of dated the 19-. The subject-matter of the pleading should be stated to have arisen after the delivery of the defendant's defence or plaintiff's reply, but in other respects it is pleaded in the same manner as the first pleading. delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may, within eight days after such ground of defence has arisen, or at any subsequent time, by leave of the Court or a Judge, deliver a further defence or further reply, as the case may be, setting forth the same." (c) The application should be supported by an affidavit of the truth of the new matter, and, also, showing when it arose, and if there has been any delay the same should be explained. (d) Confession of Defence.]-By Ord. XXIV., r. 3, "Whenever any defendant, in |