1900.

ROGERS V. CLARK.

Before KILLAM, C J.

Pleading Action for malicious prosecution Striking out paragraphs of defence as embarrassing — Queen's Bench Act, 1895, Rules 280, 283, 293, 298, 301 and 318.

1. In the statement of defence in an action for malicious prosecution a simple traverse of the plaintiff's allegation of the want of reasonable and probable cause is sufficient.

2. In such an action, when the defendant in separate paragraphs of his statement of defence alleges certain facts tending to show reasonable ground for his belief in the plaintiff's guilt, but leaves it open for himself to prove other and distinct facts for the purposes of this defence at the trial, so that the plaintiff might be misled into assuming the allegations on the record to be all he has to meet, such paragraphs should, under Rule 318, Queen's Bench Act, 1895, be struck out as embarrassing.

3. In such a defence it is not sufficient to allege that the defendant received certain information without showing the source or that it was reliable, or to allege possession by the plaintiff of the animals which he had been accused of stealing without showing that it was recent possession, or that all the information received had been laid before the magistrate before whom the charge had been laid and before counsel who advised the prosecution complained of, without showing what facts had been laid before them; and paragraphs of the defence setting up such matters without showing absolutely reasonable and probable cause should be struck out.

ARGUED: 26th September, 1900.

DECIDED: 9th October, 1900.

APPLICATION to strike out certain paragraphs of a Statement. statement of defence as tending to prejudice and embarrass the fair trial of the action. Some important questions of pleading and practice were raised.

The statement of claim embodied two charges of malicious prosecution. The statement of defence denied generally the allegations in certain specified paragraphs of the statement of claim, being those containing all the

1900. material allegations. It also set up generally that the Statement. defendant had reasonable cause for taking, or causing to be taken, against the plaintiff the first proceeding complained of, that the defendant acted bona fide and in the reasonable belief of the truth of the charges laid by him. It denied that the defendant laid the charges falsely and maliciously, and alleged that he had reasonable and probable cause for believing that the plaintiff was guilty of those charges.

The paragraphs sought to be struck out set up certain alleged facts and information given to the defendant tending to cause his belief of the plaintiff's guilt, and, also, that the defendant laid all the information received by him before the magistrate before whom the charges were made and before counsel who advised the proceedings complained of to be had and taken.

The principal objections were that these facts and information and the advice of counsel and magistrate were merely evidence of reasonable and probable cause which should not have been set out in detail; and that sufficient was not stated to show absolutely reasonable and probable cause, as the information and inquiry might not have been sufficient to warrant belief of guilt.

The forms

C. H. Campbell, Q. C., for defendant. given in The Queen's Bench Act, 1895, should be the guide in pleading. Defendant may plead both the general issue and also particulars: Stratford Gas Co. v. Gordon, 14 P. R. 407; Daley v. Byrne, 15 P. R. 4; Ætna Life Insurance Co. v. Sharp, 11 M. R. 141; Glass v. Grant, 12 P. R. 480; Heugh v. Chamberlain, 25 W. R. 742. The statement that the magistrate and counsel advised the proceedings referred to both proceedings. was intended to allege that both counsel and the magistrate advised them, and the pleading should be amended.

It

T. L. Metcalfe for plaintiff. Paragraph five of the statement of defence sets up that defendant had reason

Immaterial facts should be 1900.

able and probable cause.

struck out: Liardet v. Hammond Elec. Co. 31 W.R. 710. Argument.

Evidence should not be pleaded: Davy v. Garrett, 7 Ch. D. 473; Jones v. Turner, W. N. 1875, 239. If a statement of information is proper, the defence should go further and show proper inquiry had been made and that the informant was reliable. Paragraph six alleges not merely facts but an inference of what, in some person's opinion, the evidence showed. Paragraph eight is ambiguous as to whether the magistrate or counsel advised the prosecution. Laying facts before counsel is not sufficient, unless proper care is taken to ascertain facts and bring them before counsel: St. Denis v. Higgins, 24 O. R. 230. All the facts pleaded do not amount to reasonable and probable cause. The material allegation of careful inquiry is wanting.

KILLAM, C. J.-The principal rules bearing on the matter in question are these:

280. "The statement of defence

shall con

tain: (1) A statement in plain and ordinary language of the matters of defence upon which the defendant intends to rely."

shall admit in his

283. "The defendant statement of defence such of the allegations in the statement of claim as he knows or can readily ascertain to be true, and in his denials of allegations of fact shall deny specifically wherever possible; but no allegation in a statement of claim shall be held to be admitted because the party defendant has not denied the same."

293. "After statement of defence is filed, the plaintiff shall be held, without further pleading, to have denied all material allegations in the statement of defence." 298. "Pleadings shall contain a concise statement of the material facts upon which the party pleading relies, but not the evidence by which they are to be proved

;

1900. forms similar to those in the Schedule to these Rules Judgment. may be used."

KILLAM, C J.

301. "Where the plaintiff seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts, 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 or counter-claim founded upon separate and distinct facts."

318. "The Court or a Judge may, at any stage of the proceedings, order to be struck out or amended any matter in the pleadings respectively which may be scandalous, or which may tend to prejudice, embarrass or delay the fair trial of the action."

The English Rules differ materially from ours in many respects. They are much more minute and detailed. Replications, rejoinders, &c., are allowed. Allegations not denied are, in general, taken to be admitted. "Unnecessary" matter, as well as that tending to prejudice, embarrass or delay, may be struck out. It is very specifically provided that "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." XIX, R. 4.

Ord.

Ord. XXV, R. 4, authorizes the striking out of a pleading on the ground of its not disclosing a reasonable cause of action or answer, or an action or defence appearing frivolous or vexatious.

While, in the earlier cases, prolixity is spoken of as embarrassing and as furnishing a ground for striking out (See Watson v. Rodwell, 3 Ch. D. 380; Davy v. Garrell, 7 Ch. D. 473), mere prolixity or the allegation of facts that are evidence only does not seem to be of itself sufficient to warrant the striking out: Heap v. Marris, 2

Q. B. D. 630; Weymouth v. Rich, 1 Times L. R. 609; 1900. Tomkinson v. The South-Eastern Ry. Co., 57 L. T. 358; Judgment. Ann. Prac., 1900, pp. 264-5. KILLAM, C.J.

The English Rules give a form for a statement of claim in an action for malicious prosecution, alleging in gereral terms that the proceedings were taken maliciously and without reasonable or probable cause. No specifie form of statement of defence in such an action is given. There is merely the general provision in App. D, Sec. 6, "To all actions for wrongs. Denial of the several acts or matters complained of."

In Bullen & Leake's Precedents of Pleading, 5th ed., at p. 923, is a form of statement of defence in an action of malicious prosecution, merely alleging generally reasonable and probable cause for the proceedings. Examples of this general method of pleading, without allegation of facts constituting reasonable and probable cause, are found in Lea v. Charrington, 5 Times L. R. 218; Roberts v. Owen, 6 Id. 172; Carder v. The Peninsular and Oriental Steam Nav. Co., 8 Id. 335; Davidson v. Smyth, 20 L. R. Ir. 326; Martin v. Hutchinson, 21 O. R. 388.

In very few cases of this character do the reports show the pleadings. Upon a careful research, I have found none in which it appears that the specific facts relied on as constituting reasonable and probable cause were pleaded.

In Roberts v. Owen, sup., there was a motion for particulars, in support of which it was argued that the statement of defence should have alleged these facts. The Court replied that this objection, if valid, should have been made to the pleading itself and not as ground for requiring particulars. No opinion was expressed as to the propriety of so pleading.

In McCarthy v. Barter, 15 C. L. T. 198, a case in the North-West Territories, Scott, J., held that it was un