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CHAPTER III.

STATEMENTS OF CLAIM.

General Form of a Statement of Claim delivered after Writ

issued (a).

(See R. S. C., 1883, App. C., Sect. I.; and see App. E., Sect. II., cited" Work," post, p. 365.)

The plaintiff, &c., or, The plaintiff's claim is, &c., or, The defendant, &c., or, as the case may be. [Here state briefly and in a summary form the material facts on which the plaintiff relies for his claim or claims, giving particulars of the claim, where necessary, and dividing the statement of claim, where necessary, into paragraphs numbered consecutively see the forms given under the various headings, post.]

The plaintiff claims £, or, £ damages, or, as the case may be. [Where there are several distinct claims for debt, damages or other relief, they should be stated separately and numbered consecutively.

Place of trial [here state the proposed place of trial, if other than Middlesex, as, for instance, Surrey, or, Bristol, or, Lancashire, West Derby Division, or, as the case may be].

G. H.

[Signature of the counsel or special pleader by whom the pleading has been settled, or if it has not been so settled, of the plaintiff's solicitor, or of the plaintiff himself, if he sues in person.]

Delivered the

of -, 18-.

(a) See note (a), pp. 44—70.

The like, where there are several Plaintiffs and Defendants.

In the High Court of Justice,

Queen's Bench Division.

18-. B. No.

Writ issued the

of

18-.

Between A. B., C. D., and E. F. . Plaintiffs,

and

[The same as in the preceding form, except that the words "plaintiffs" and "defendants" must, where necessary, be substituted for "plaintiff" and "defendant." Where it is necessary to refer to one of several plaintiffs or defendants, such plaintiff or defendant may be referred to as "the plaintiff C. D.," or "the defendant G. H." If there are different claims for debt, damages, or other relief by different plaintiffs, or against different defendants, the claims at the end of the statement of claim should be stated in such a manner as to show, in the case of each of the several claims for debt, damages, or other relief, by and against whom the claim is made, as, for instance

The plaintiff, A. B., claims, &c.;

The plaintiff, C. D., claims, &c. ;

or, The plaintiffs claim against the defendant, G. H., &c., and against the defendant, I. K., &c.

As to alternative claims by different plaintiffs or against different defendants, see the next form.]

The like, where there are Alternative Claims or Causes of Action by different Plaintiffs or against different Defendants.

[Heading as above.]

1, 2, 3, &c. [Here state the facts relied upon for the different claims, as mentioned in the first of the above forms, showing distinctly how the alternative claims arise. The claims at the conclusion of the statement of claim should show clearly what the alternatives are, and each alternative after the first may be introduced by the words "in the alternative," or "alternatively," as, for instance— The plaintiffs, A. B. and C. D., claim, &c.;

The plaintiff, C. D., in the alternative claims, &c.; or, The plaintiff claims against the defendant G. H.,

&c.

In the alternative, the plaintiff claims against the defendant, I. K., &c.]

(a) Statement of Claim, when necessary.]-By O. XIX. r. 2, "The plaintiff shall, subject to the provisions of O. 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 O. 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 O. 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 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." The above rule must now be read subject to the provisions of O. XVIIIA., which permits a plaintiff to proceed to trial without pleadings upon the terms specified in the rules of that Order. (See Pleadings, when dispensed with," ante, p. 4.)

66

By O. XX. r. 1, "The delivery of statements of claim shall be regulated as follows:

(a.) Where the writ is specially indorsed under O. III. r. 6, no further statement of claim shall be delivered, but the indorsement on the writ shall be deemed to be the statement of claim:

"(b.) Subject to the provisions of O. XIII. r. 12, as to filing a statement of claim when there is no appearance, no statement of claim need be delivered unless the defendant at the time of entering appearance, or within eight days thereafter, gives notice in writing to the plaintiff or his solicitor that he requires a statement of claim to be delivered:

"(c.) If no statement of claim has been delivered and the defendant gives notice requiring the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a judge, deliver it within five weeks from the time of the plaintiff receiving such notice:

"(d.) The plaintiff may (except as in (a.) mentioned) deliver a statement of claim, either with the writ of summons or notice in lieu of writ of summons, or at any time afterwards either before or after appearance, notwithstanding that the defendant may have appeared and not required the delivery of a statement of claim: Provided that in no case where a defendant has appeared shall a statement be delivered more than six weeks after the appearance has been entered unless otherwise ordered by the Court or a judge:

"(e.) Where the plaintiff delivers a statement of claim without being required to do so, or the defendant unnecessarily requires such statement, the Court or a judge may make such order as to the costs occasioned thereby as shall be just, if it appears that the delivery of a statement of claim was unnecessary or improper."

Where a statement of claim, complying with the requirements of O. III. r. 6, has been specially indorsed on the writ, though no further statement of claim can be required by the defendant, or delivered by the plaintiff without leave, it may be amended by the plaintiff under the provisions of O. XXVIII. rr. 1, 2, cited ante, p. 14. (Roberts v. Plant, (1895) 1 Q. B. 597; 64 L. J. Q. B. 347.)

As to writs specially indorsed with a statement of claim under O. III. r. 6, and the cases in which they may be so indorsed, and the effect of such indorsement, see Special Indorsements," post, p. 77.

Where the writ of summons bears only a general indorsement of the

plaintiff's claim, and the defendant appears to the writ, no statement of claim need be delivered by the plaintiff, unless the defendant gives notice in writing, under clause (b) of the above rule, that he requires a statement of claim to be delivered, but the defendant is entitled to give such notice at the time of entering appearance or within eight days thereafter, and, if he does so, the plaintiff must deliver a statement of claim within five weeks after receiving such notice, or within such further time as may be ordered. (See clauses (b) and (c) of the above rule.) Apart from any such notice by the defendant as above mentioned, and subject to the provisions of O. XIII. r. 12, below cited (as to filing a statement of claim in certain cases of non-appearance), the plaintiff, where the writ is not specially indorsed, may, if he chooses, deliver a statement of claim at the time when the writ (or, in cases within O. XI. r. 6, notice of the writ) is served, or at any time afterwards either before or after appearance, subject to the proviso that a statement of claim is not to be delivered more than six weeks after appearance without an order authorizing such delivery. (See clause (d) of the rule, and see post, p. 69.) It seems doubtful, however, whether a plaintiff can without leave deliver a statement of claim after the defendant has delivered a defence under O. XXI. r. 7. Although a defendant who requires a statement of claim, or a plaintiff who delivers one without being required to do so, takes the risk of an order being made against him as to the costs occasioned thereby if the delivery of a statement of claim was unnecessary or improper (see clause (e) of the rule, and O. LXV. r. 27 (20)), it may in some cases be advisable to do so. Thus, it would appear advisable for a plaintiff to deliver a statement of claim, although not required to do so by the defendant, in all cases in which the facts are complicated, or in which it is important to define the issues or to raise questions of law upon the pleadings, or in which for any other reason it is desirable to have distinct statements of the material facts on the record, and in such cases it is presumed that the costs would be treated as costs in the cause. Similarly, it is in general advisable for a defendant to require a statement of claim to be delivered in the like cases, and in all cases where he may otherwise have a difficulty in ascertaining the nature or extent of the plaintiff's claim.

Where the writ bears only a general indorsement, and the defendant has appeared and has not required the delivery of a statement of claim, and no statement of claim is delivered by the plaintiff, the plaintiff's claim is taken to be that stated in the indorsement of the writ, and the defence must be pleaded to the substance of the claim so stated. (See 0. XXI. r. 7; 0. XXVII. rr. 2, 4; “ Time for delivering Defence," post, p. 553.)

Where the writ is indorsed for debts or liquidated demands, or for pecuniary damages, or for detention of goods or recovery of land, no statement of claim is requisite if no appearance has been entered, as the plaintiff may in such cases enter judgment (final or interlocutory) without delivering a statement of claim. (See O. XIII. rr. 3-9, 11; and as to actions on bonds within 8 & 9 Will. III. c. 11, see O. XIII. r. 14, cited "Bonds," post, p. 161.)

By O. XIII. r. 8, "In case no appearance shall be entered in an action for the recovery of land, within the time limited by the writ for appearance, or if an appearance be entered, but the defence be limited to part only, the plaintiff shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the fart thereof to which the defence does not apply."

By O. XIII. r. 9, "Where the plaintiff has indorsed a claim for mesne profits, arrears of rent [double value], or damages for breach of contract Lor wrong or injury to the premises claimed], upon a writ for the recovery of land, he may enter judgment as in the last preceding rule mentioned for the land; and may proceed as in the other preceding rules of this Order mentioned as to such other claims so indorsed."

In actions other than those above specified, that is, in actions not provided for by any of the above-cited rules of O. XIII., a statement of claim is required to be filed before judgment can be obtained on non-appearance (see O. XIII. r. 12), except where a statement of claim has been already served on the defendant (Phillip v. Kearney, 58 L. J. Ch. 345; W. N. 1889, p. 8).

As to the course to be adopted where there are several defendants, of whom one or more fail to appear to the writ within the time allowed for that purpose, see O. XIII. rr. 4, 6, 7, 8, cited, pp. 48, 45.

As to the date, title, and signature, &c., of statements of claim, see "Date, Title, &c.," ante, p. 6; Signature of Pleadings,” ante, p. 14.

Parties.The statement of claim should, in general, subject to the following observations, correspond with the writ in the number of the parties, in the names of the parties, and in the character in which they sue or are sued. (See "Date, Title, &c.," ante, p. 6; "Names of the Parties," infra; and "Character, &c.," post, p. 48.)

or Sir

Names of the Parties.]-The christian names and the surnames of the plaintiff and the defendant should be stated in full and correctly in the writ, and in the statement of claim. Titles and names of dignity should be stated as: Duke of, or Marquis of, or Earl of, or Viscount or Baron or, Lord Bishop of Baronet. A person having a title by courtesy is usually designated by his proper name, with the addition "commonly called Lord -." In the case of a clergyman it is usual, but not necessary, to prefix the term "Reverend" to his name, or to add "Clerk," after it.

In the case of a corporation, the full corporate name should be used. (See "Company," post, p. 182; "Corporation," post, p. 190.)

Any two or more persons claiming or being liable as co-partners and carrying on business within the jurisdiction, may sue or be sued in the name of the respective firms, if any, of which such persons were copartners at the time of the accruing of the cause of action." (0. XLVIIIA. r. 1, cited post, p. 308.) In like manner, Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name." (O. XLVIIIA. r. 11, cited Ib.) It may be noted that one person trading in a name or style other than his own must still sue in his own name. (See Mason v. Mogridge, 8 Times Rep. p. 805.) The above rules do not make it obligatory to use the name of the firm in cases to which they apply, and the names of the various partners may, if desired, be still set out in full in the writ and statement of claim as in the case of persons who are not in co-partnership, but wherever the name of a firm is used in the writ, it should be likewise used in the statement of claim and subsequent pleadings. (See, further, "Partners," post, p. 308.)

In actions on bills of exchange or promissory notes or other written instruments, any of the parties to which are designated by the initial letter or letters, or some contraction of the christian or first name or names, it is sufficient to designate such persons by the same initial letter or letters or contraction of the christian or first name or names.

This was formerly the subject of statutory provision by 3 & 4 Will. IV.