20. Bond to secure Payment when Security ordered.

Know all men by these presents that I, A. B., of

of contractor, am held and firmly bound to
of in the county of
in the sum of £-

in the county

C. D. and E. F., to be paid to

the said C. D. and E. F., their executors, administrators or assigns, or their certain attorney, for which payment to be well and truly made I bind myself, my heirs, executors and administrators, firmly by these presents, sealed with my seal.

Whereas an action is now pending in the King's Bench Division of his Majesty's High Court of Justice, in the names of the said C. D. and E. F. against G. H. and I. K., of in the county of, and by an order 19—, and made in the said

of Master

dated the

day of

action, it was ordered that if the said defendants should pay into Court in manner therein mentioned the sum of £- they should be at liberty to defend the said action, and by an order of the Honourable Mr. Justice dated the - day of 19—, and made in the said action, upon the application of the said defendants, it was ordered that the said order of Master should be varied by substituting security to a Master's satisfaction for payment into Court: And whereas the above-bounden A. B., as surety for the said defendants, has agreed to give such security by entering into the above-written bond or obligation with the condition hereunder written, and the said security hath been approved of by Master -: Now the condition of the above-written bond or obligation is such that if the above-bounden A. B. do and shall pay to the said C. D. and E. F., within seven days after the date of their signing final judgment in the aforesaid action, the amount of such sum, not exceeding £- as shall be recovered by such final judgment, or if the said C. D. and E. F. shall fail to obtain final judgment in the said action, or if the defendants therein shall obtain judgment against the said C. D. and E. F. in the said action, then and in any of such cases the above-written bond or obligation to be void, else to remain in full force and virtue.

of

Signed, sealed and delivered by the within-named A. B., in the presence

21. The like, in another Form.

Know all men by these presents that we, C. D., of

in the county of

[grocer], are in

[butcher], and E. F., of, in the said county of [tailor], and G. H., of, in the said county of jointly and severally held and firmly bound to A. B., of the county of, in the sum of [£200] to be paid to the said A. B., his certain attorney, executors or administrators, for which payment to be well and faithfully made we bind ourselves and each of us, our

and each of our heirs, executors and administrators, firmly by these presents, sealed with our seals.

Dated this day of ——, in the year of our Lord 19—. Whereas an action hath been commenced, and is now depending in the King's Bench Division of his Majesty's High Court of Justice, wherein A. B. is the plaintiff, and the above-bounden C. D. is the defendant: And whereas, by an order made in the said action by

on the - day of 19——, it was ordered that the above-bounden C. D. should, within a week from the said day, give security to the said A. B. for the payment of the sum of [£200] to the satisfaction of a Master: Now the condition of this bond is such that if the said A. B. do recover judgment in the said action, and the said C. D. or E. F. or G. H. do pay to the said A. B. [£100] or such sum, not exceeding [£100], as may be found to be due from the said C. D. to the said A. B. in the said action [or if £100, or any larger sum, be found to be due to the said A. B. from the said C. D., and the said C. D. or E. F. or G. H. do pay to the said A. B. £100, or if any lesser sum than £100 be found to be due to the said A. B. from the said C. D., and the said C. D. or E. F. or G. H. do pay to the said A. B. such sum as shall be so found to be due], or if, prior to recovery of judgment in such action, the said C. D. be adjudicated bankrupt, or his creditors should accept a composition, and such bankruptcy or composition be set up as a defence to the said action or a ground for staying the same, then, if the said E. F. and G. H. do, or one of them does, pay to the said A. B. £100 (p), or if nothing shall be found to be due from the said C. D. to the said A. B. in the said action, then this obligation to be void and of no effect, otherwise to be and remain in full force and virtue. Signed, sealed, &c.

The

22. Judgment for Plaintiff on Order (q).

[Title, &c., as usual; see form No. 1, supra.]

day of

19-.

The defendant having appeared to the writ of summons herein, and the plaintiff having by the order of, dated the day of, 19—, obtained leave to sign judgment under the Rules of the Supreme Court, Order XIV., Rule 1, for [recite order, e.g., the amount indorsed on the writ, with interest (if any) and costs, and if the order is conditional, add unless

(p) In the event of the money being paid into Court, the plaintiff would be a secured creditor in respect of it (In re Ford, Ex p. Maclister, [1900] 2 Q. B. 211; Ex p. Banner, L. R. 9 Ch. 379; Er p. Bouchard, W. N. ('79) 115; Murray v. Arnold, 3 B. & S. 287) ; and if security is given, provision should be made against the event of the defendant becoming bankrupt.

(q) This form is prescribed by R. S. C., App. F., No. 5.

-, setting out the condition, and proceed, and default having been made] It is this day adjudged that the plaintiff recover against the defendant £- [or possession of the land in the indorsement on the writ

:

described as -] and costs to be taxed.

The above costs have been taxed and allowed at £ as appears by a Taxing Officer's Certificate dated the -day of

The

19-.

The defendant C. D. having appeared to the writ of summons herein, and the plaintiff having by order of ——, dated obtained leave to sign judgment under the Rules of the Supreme Court, Order XIV., Rule 1, for £——, and costs, payable out of her separate property and not otherwise: It is this day adjudged that the plaintiff recover £ and costs to be taxed, against the said defendant, such sum and costs to be payable out of her separate property and not otherwise (7).

The above costs have been taxed [&c., as in preceding form].

(r) This is now the proper form. See n. (i), ante, p. 93.

VI.

VII.

VIII.

IX

EXAMPLE OF A COMPLETE SET OF PLEADINGS
AMENDING AND STRIKING OUT PLEADINGS
PLEADING MATTERS ARISING AFTER THE
MENCEMENT OF THE ACTION
PLEADING POINT OF LAW.

X. DEFAULT OF PLEADING .

PAGE

. 101

114

123

.

130

133

.

COM

(a) The Pleadings.]-It does not fall within the province of this book to give precedents of pleadings, or to treat of their contents. To do so would require a separate volume, and the subject is fully treated in Bullen and Leake's Precedents of Pleadings, to which the practitioner is referred. It is thought useful, however, to give the Rules relating to the order and printing and delivery of the pleadings, and to set out the precedents authorized by the R. S. C., Appendices C., D., and E., so far as they relate to the K. B. D. The general rules with regard to the pleadings in an action in the High Court are contained in Ord. XIX. of the Rules of the S. C. By r. 1 of that Order it is provided that "The following rules of pleading shall be used in the High Court of Justice." By sect. 100 of the Judicature Act, 1873, it is provided that “Pleading' shall include any petition or summons, and also shall include the statements in writing or the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant."

By Ord. XIX., r. 2, "The plaintiff shall, subject to the provisions of Ord. 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 Ord. XXI., and at such time and in such manner as therein prescribed, deliver to the plaintiff his defence, set-off, or counter-claim (if any), and the plaintiff shall, subject to the provisions of Ord. XXIII., and at such time and in such manner as therein prescribed, deliver his reply (if any) to such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the taxing officer in adjusting the costs of the action shall at the instance 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."

By 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. . . ."

Printing Pleadings.]—By Ord. XIX., r. 9, "Every pleading which shall contain less than ten folios (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading, not being a petition or summons, shall be printed."

By Ord. LXVI., r. 3, “ Proceedings required to be printed shall be printed on cream wove machine drawing foolscap folio paper, 19 lbs. per mill ream, or thereabouts, in pica type leaded, with an inner margin about three quarters of an inch wide, and an outer margin about two inches and a half wide." This Rule is copied from the Cons. Chanc. Orders, Ord. IX., r. 3, under which Rule it was held that, although the paper must be of the prescribed quality, it was not necessary that it should be weighed at the office of the Court, or that the margin should be of exactly the prescribed size (Calthorp v. Rummens, L. R. 6 Ch. 151).

By R. S. C., Ord. LXVI., r. 7 (c), "The party printing shall, on demand in writing. furnish to any other party any number of printed copies, not exceeding ten, upon payment therefor at the rate of 1d. per folio for one copy, and d. per folio for every other copy." And by r. 7 (m), "The folios of all printed and written office copies, and copies delivered or furnished to a party, shall be numbered consecutively in the margin thereof, and such written copies shall be written in a neat and legible manner on the same paper as in the case of printed copies."

Delivery of Pleadings.]—By Ord. XIX., r. 10, “ Every pleading or other document required to be 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." When a statement of claim is served with the writ, it is not necessary to file it in case of default of appearance (Renshaw v. Renshaw, 42 L. T. 353; 49 L. J. Ch. 127).

By Ord. XIX., r. 11, infra, every pleading must be delivered between parties. As to the time for delivering the different pleadings, see the following chapters.

Form of the Pleadings.]—By Ord. XIX., r. 11, "Every pleading shall be delivered between parties, and shall be marked on the face with the date of the day on which it is delivered, the reference to the letter and number of the action, the Division to which the Judge (if any) to whom the action is assigned belongs, the title of the action and the description of the pleading, and shall be indorsed with the name and place of business of the solicitor and agent, if any, delivering the same, or the name and address of the party delivering the same if he does not act by a solicitor."

By 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."

These forms will be found in the succeeding chapters arranged under the pleadings to which they relate.

Pleading in Abatement.]—By Ord. XXI., r. 20, "No plea or defence shall be pleaded in abatement."

So far as the necessity of pleading in abatement arose from some disability or defect in the parties to the action, an application under Ord. XVI., r. 13 (Kendall v. Hamilton, 4 App. Cas. 504, 516; see post, Part IX., Chap. I.), now takes the place of the old plea; and in other cases an application to stay proceedings under Jud. Act, 1873, s. 24, sub-s. 5 (post, Part V., Chap. V.), is the proper course to adopt (Id.).

New Assignment.]-By Ord. XXIII., r. 6, “No new assignment shall be necessary or used; but everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim, or by way of reply."