c. 42, s. 12, which was repealed by the Statute Law Revision Act, 1892, subject to the course of pleading or practice not being affected by such repeal. It seems that a person who executes a deed by a wrong name may be sued by the name in which he executed it. (See Williams v. Bryant, 5 M. & W. 447; Mayor of Lynne's Case, 10 Rep. 122b; Roscoe's N. P. Ev., 16th ed., p. 714.)

Misnomer.]-A name wrongly spelt, in a manner idem sonans, is no material misnomer. (R. v. Shakespeare, 10 East, 83; Ahitbol v. Beniditto, 2 Taunt. 401; Williams v. Ogle, 2 Str. 889.) If there be a misnomer in the writ, it seems the defendant, if he appears, can take no advantage of it. (1 Chit. Pr., 14th ed., p. 291.) But the misnomer should be corrected in the statement of claim, if any is delivered, by inserting the right name, with a statement that the party misnamed had sued or been sued by the name in the writ. (See Forms, post, p. 70.) Where the plaintiff or defendant is rightly named in the writ and wrongly in the statement of claim, the defendant may apply by summons to have the misnomer, if material, amended, provided he does so within the time allowed for pleading his defence, and before taking any fresh step in the action. But it would seldom be proper or expedient to take objection in this manner, as any such misnomer can easily be corrected in the statement of defence. Where there is an inaccuracy of the statement of the name of the defendant in the writ, it may be corrected by the defendant in his appearance, and in such case the plaintiff should adopt the correction in his statement of claim. (See Form, post, p. 70.) A misnomer cannot be objected to after any admission of identity by the defendant. (Fisher v. Magnay, 1 D. & L. 40.) A person served with a writ issued against another person is not bound to appear, and, if he does not appear, proceedings cannot properly be taken against him in default of appearance. (Walley v. McConnell, 13 Q. B. 903; Kelly v. Lawrence, 3 H. & C. 1; 33 L. J. Ex. 197; De Mesnil v. Dakin, L. R. 3 Q. B. 18; 37 L. J. Q. B. 42.) Usually, his best course in such a case is to apply without appearing to have the service of the writ set aside under O. XII. r. 30. A misnomer of one of three executors on a writ of summons was amended on the plaintiff's application, although the Statute of Limitations had run in the meantime in favour of the defendant whose name was wrongly stated. (Challinor v. Roder, 1 Times Rep. 527.)

Number of the parties.]—If a party not named in the writ be joined in the statement of claim without leave, the statement of claim may be set aside as irregular. (See 1 Chitty's Practice, 14th ed., pp. 217, 290.) But a plaintiff may deliver a statement of claim against one or some of several defendants only without proceeding against the others, for the statement of claim may narrow the operation of the writ. (See 1 Chitty's Practice, 14th ed., p. 217.) In such case, however, the plaintiff should in general deliver to such of the omitted defendants as have appeared to the writ a notice of discontinuance of the action against them under O. XXVI. r. 1 (see "Discontinuance," post, p. 690), because, unless he does so, the omitted defendants might deliver a statement of defence, or, if they have appeared and required the delivery of a statement of claim under O. XX. r. 1 (cited ante, p. 44), and if the plaintiff has failed to deliver one within the prescribed time (see Ib.), might apply to have the action dismissed as against them with costs for want of prosecution (see O. XXVII. r. 1, cited post, p. 70).

Where some only of several defendants appear to the writ, the procedure which should be adopted is that pointed out in the rules next cited.

By O. XIII. r. 4, "Where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may enter final judgment, as in the preceding rule, against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with the action against such as have appeared."

By O. XIII. r. 6, "Where the writ is indorsed as in the last preceding rule mentioned, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the Court or a judge shall otherwise direct. Provided that the Court or a judge may order that instead of a writ of inquiry or trial, the value and amount of damages, or either of them, shall be ascertained in any way which the Court or judge may direct."

By O. XIII. r. 7, "Where the writ is indorsed with a claim for detention of goods and pecuniary damages, or either of them, and is further indorsed for a liquidated demand, whether specially or otherwise, and any defendant fails to appear to the writ, the plaintiff may enter final judgment for the debt or liquidated demand, interest and costs against the defendant or defendants failing to appear, and interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding rules of this Order as may be applicable."

In cases falling within any of the three last-cited rules, the defendant or defendants who have appeared have the same right of requiring a statement of claim, and the plaintiff has the same right of delivering one to them, as in ordinary cases (as to which, see O. XX. r. 1, supra); and where a statement of claim is delivered to those of the defendants who have appeared, it should contain a statement in the nature of a suggestion of the fact that judgment has been entered against the other defendants (see the form, cited post, p. 72). It should be added that the plaintiff in such cases is, of course, at liberty, if he chooses, to proceed against such of the defendants as have appeared, without entering judgment against those who have not appeared; but the course above mentioned is usually the best, as a defendant is at liberty to appear at any time before judgment is entered against him (O. XII. r. 22); and if a defendant should enter appearance after delivery of a statement of claim to other defendants who had appeared previously, this would usually necessitate an amendment. As to amendments where defendants have been added under O. XVI. r. 11, see "Misjoinder, &c.," ante, p. 30.

Where one of several defendants sued for debt or damages on a joint contract dies before delivery of a statement of claim, the plaintiff may proceed with the action against the surviving defendants, suggesting the fact of the death. (See "Statement of Claim," post, p. 72.)

Where separate statements of claim are delivered to several defendants in an action, they must in general be identical in their contents. (1 Chitty's Practice, 14th ed., p. 217.)

Character in which parties sue or are sued.]-Where parties sue or are sued in a representative character, the indorsement on the writ must state in what capacity it is that the parties sue or are sued (see O. III. r. 4, and

the forms of indorsement in App. A., Part III., Sect. VII.); and in such cases the statement of claim should correspond with the writ, and show specifically the capacity in which the parties sue or are sued (see "Bankers,' post, p. 115; "Bankruptcy," post, p. 122; "Executors," post, p. 198; "Penal Statutes," post, p. 311).

Where a party sues or is sued both in a representative capacity and also in his own personal capacity, as may sometimes be the case under 0. XVIII. rr. 3, 5 (see "Bankruptcy," post, p. 120; “ Executors," post, p. 198), the fact that he sues or is sued in both capacities should be stated, and the statement of claim (if any) should state the respective claims, as far as may be, separately and distinctly (see O. XX. r. 7, cited "Joinder of Causes of Action," post, p. 57).

If either party wishes to dispute the right of the other to claim in any alleged representative character or other alleged capacity, he must deny (or refuse to admit) the same specifically. (See 0. XXI. r. 5, cited "Denials," post, p. 550.) So also where a claim is made against either party in an alleged representative capacity there must be a specific denial (or refusal to admit) that he has that capacity if it is intended to dispute it. (See a form of such denial, " Executors," post, p. 696.)

Parties under disabilities.]—As to these, see "Infant," post, p. 234; 'Lunatics," post, p. 280, &c.; and see "Parties to Actions," ante, p. 25.

The body of the statement of claim.]-The body of the statement of claim consists of the statement in a summary form of the material facts on which the plaintiff relies for his claim. (O. XIX. r. 4, cited ante, p. 7; "Pleading in General," ante, pp. 7-10.) The statement should be as brief as the nature of the case will admit (O. XIX. r. 2, cited ante, p. 7); and no facts should be stated except such as are material to the plaintiff's claim (r. 4). As to what are material facts, see ante, p. 8. The forms contained in Appendix C. of the R. S. C., 1883, should be used, when applicable, and, where they are not applicable, forms of the like character, as near as may be, should be employed. (O. XIX. r. 5, cited ante, p. 7.) As to cases where particulars are necessary beyond such as are exemplified in those forms, see O. XIX. r. 6, cited" Particulars,” ante, p. 37. The material facts should be sufficiently stated to give due notice to the defendant of the case intended to be set up against him and to prevent his being taken by surprise at the trial (see "Pleading in General," ante, pp. 7-14, and "Particulars," ante, p. 37); but the evidence by which it is intended to prove those facts should not be set out (O. XIX. r. 4, cited ante, p. 7; and see "Pleading in General,” ante, p. 7).

It is no part of the statement of claim to anticipate the defence, or to state what answer the plaintiff makes to the anticipated defence. (Hall v. Eve, 4 Ch. D. 341, 345, 348; 46 L. J. Ch. 145.)

It is unnecessary to state matters of which the Court takes judicial notice, and matters of law should not be stated as facts, unless where the plaintiff relies upon foreign, colonial, or Scotch law, or private Acts of Parliament. (See "Pleading in General," ante, p. 11.) Thus, where an action is brought for a breach of a duty arising out of some contract or relation between the parties, the duty should not be itself alleged as a fact; but the facts which give rise to the duty should be stated; for an express allegation of the duty in such cases would be a mere statement of an inference of law, which would be superfluous, if the facts stated supported it, and of no effect, if they did not support it. (See "Carriers," post, p. 168; "Negligence," post, p. 476.)

B.I..

E

As the old forms of action are now abolished, and as the facts relied upon are now to be stated in all cases, the distinction between actions founded on contract and actions for wrongs has lost much of its former importance (see "Classification of Actions," ante, p. 2); but it should be borne in mind by the pleader, as there are still some differences in the manner of stating the cause of action, according as the case falls within the one class of actions or the other. In any action founded on a contract the statement of claim must state or refer to the contract or agreement of the parties by which the right of the plaintiff was created, and must do so in such a way as to show that the contract or agreement was valid and sufficient to create the right in respect of which the plaintiff sues. Thus, where the contract sued upon is a simple contract requiring to be supported by consideration (vide infra), the promise and the consideration for it must be stated or disclosed by the statement of claim in order to show a valid creation of the right. Hence, in actions on contracts, the statement of claim may, in general, be regarded as in effect consisting of two principal parts, viz., the statement of the contract or right, and the statement of the breach or violation of the right. On the other hand, in actions for wrongs independent of contract, the right is frequently an existing fact which is implied by law without there being any necessity to show the origin or creation of such right. Thus, certain rights are implied in law and are inseparably annexed to the person of the plaintiff, as the right to security of life and limb, liberty and reputation; and these it is unnecessary to allege. In such cases the pleading states only the violation of the right, as, that the defendant assaulted and beat the plaintiff, or that the defendant imprisoned the plaintiff, or that the defendant spoke of the plaintiff certain defamatory words. (See, per Patteson, J., Cotton v. Browne, 3 A. & E. 312, 314.) Similarly, in ordinary actions for injuries to rights of property, the right is, in general, sufficiently implied by law from the mere statement that the property was the plaintiff's, as, for instance, in actions for trespass to land or goods, where the statement of claim alleges that the land was the plaintiff's, and the defendant broke and entered, or trespassed upon it; or that the goods were the plaintiff's and the defendant seized and carried them away. Where, however, the right which is alleged to have been violated is not a right implied by the general law, but is a legal conclusion from certain facts other than those of which the Court takes judicial notice (as to which, vide supra), those facts ought to be shortly stated in the statement of claim. Thus, in an action for infringing a patent, the plaintiff should allege the fact of the existence of the patent and his property therein. Again, in some cases of wrongs the act complained of is not in itself necessarily injurious to the plaintiff, but becomes so only by reason of the actual damage thereby caused to him, and in such cases it is necessary in the statement of claim to allege the actual damage as the gist of the action. (See post, “Damages," p. 61.) In some cases of actions for wrongs, in stating the act complained of, it becomes necessary also to show on the pleading that it was committed in a certain manner, as "negligently," or "maliciously," or "without reasonable or probable cause," or with knowledge of a certain fact; for the act in itself may not be actionable, but may have been made so only by the way in which it was done; as in actions for driving negligently, for defamation, for malicious prosecution, for keeping a mischievous animal with knowledge of its mischievous nature; in these cases the mode of doing the action is of the gist of the cause of action, and constitutes a necessary part of the statement of the wrongful act. (As to the mode of pleading malice,

fraudulent intention, knowledge, &c., see O. XIX. r. 22, cited ante, p. 10.) But in statements of claim for a supposed wrong, where, on the facts alleged, the act complained of appears to afford no cause of action, mere general allegations, such as that the act was done "wrongfully," or "unlawfully," or "improperly," will not add anything to the plaintiff's case, or render the pleading sufficient. (See Day v. Brownrigg, 10 Ch. D. 294, 302; 48 L. J. Ch. 173; and see further, "Negligence," post, p. 476.) Where the action is brought for the breach of some statutory duty arising independently of contract, the facts which bring the case within the statute must be sufficiently stated in the pleading.

As to the mode of stating the claim where the wrong complained of is a breach of some duty arising from some special relation existing between the parties, see also O. XIX. r. 24, cited ante, p. 10.

Actions on contracts may, for pleading purposes, be conveniently subdivided into actions to recover debts or liquidated demands in money, and actions to recover damages for breaches of contracts. (See "Classification of Actions," ante, p. 2.)

As to actions to recover damages for wrongs arising out of contracts, see Ib.

Where the action is brought only to recover a debt or liquidated demand in money arising upon a contract, express or implied, within the provisions of O. III. r. 6, it is in most cases advisable that a statement of claim should be specially indorsed upon the writ. (See "Special Indorsements," post, p. 77.)

The forms of statements of claim for debts or liquidated money demands which are given in App. C., Sect. IV., are applicable in respect of such causes of action as are therein stated, whether the statement of claim is specially indorsed upon the writ or delivered separately. (Veale v. Automatic Boiler Co., 18 Q. B. D. 631; 56 L. J. Q. B. 307.) In other cases of a like character similar concise forms, where applicable and sufficient, should be employed. (O. XIX. r. 5, cited ante, p. 7.)

Sufficient particulars should be given of the debt sued for, and these should be stated in the statement of claim, unless they exceed three folios, in which case the statement of claim may refer to particulars already delivered, or to be delivered with the pleading. (O. XIX. r. 7; see "Particulars," ante, p. 37.)

As to the particulars required in order to constitute a sufficient special indorsement, see "Special Indorsements," post, p. 79.

The mode of pleading exemplified in the forms above referred to is applicable in cases where there is a present debt or liquidated demand in money due from and payable by the defendant to the plaintiff under a contract at the time of action brought, whether the contract under which the debt or liquidated demand arises is express or implied, whether it was verbal or in writing, and whether it was a simple contract or a contract under seal.

If the contract was in writing the statement of claim should, in general, state or disclose that fact, and should identify the writing by stating its date or the parties thereto, &c., and if the contract was under seal that fact should be stated.

If the contract was under seal, it is unnecessary to state any consideration for it; if it was a simple contract (other than a contract contained in a bill of exchange or promissory note, &c.), the statement of claim should in some way state or show the nature of the consideration for it. (See the forms in App. C., Sect. IV.; and see pp. 53, 54, infra.) But in actions for debts or liquidated money demands arising under contracts,