the 38th section of the Act, it would appear he cannot obtain an order for security for costs (Parke v. Parke, 1 Ir. C. L. R. 632).

merits.

In cases where the order is sought for on the ground of the plaintiff being Affidavit of resident out of the jurisdiction, the application must be supported by an affidavit of merits, which should, except under special circumstances, be made by the defendant himself (Willans v. Paterson, 8 Ir. C. L. R. Ap. 29; and see Hickman v. Forde, 8 Ir. Jur. N. S. 133). In the Courts of Queen's Bench and Common Pleas an affidavit stating that the defendant has a good and legal defence upon the merits is sufficient (Hickman v. Forde, supra; Eyre v. Sparks, 3 Ir. C. L. R. 542; Spencer v. Campion, 3 Ir. C. L. R. 231). But in the Exchequer, although the evidence need not be stated, the affidavit must set forth the general nature of the defence (Shepperd v. Beamish, 8 Ir. C. L. R. Ap. 59). The Court will not, however, hear any evidence to controvert the truth of the defendant's allegations (Shepperd v. Beamish, ubi supra; Martin v. Titmarsh, 6 Ir. Jur. O. S. 269). The application can be made after defence filed only under special circumstances, as, for instance, if the plaintiff leaves the jurisdiction, after the filing of the defence, with the intention of residing permanently abroad (Habgood v. Paul, 8 Ir. C. L. R. Ap. 33; Hodson v. M'Queen, 7 Ir. C. L. R. 288). So, also, if plene administravit be the only defence pleaded, the defendant may apply after service of the notice of trial (Anderson v. Walsh, Ir. R. 2 C. L. 303).

As to compelling a plaintiff to give further security where the amount for which security was originally given proves insufficient, see Levison v. Hodges, 8 Ir. L. R. 112.

When application may

be made after defence.

When an order is made for security for costs, it operates as a stay of pro- Operation of ceedings until complied with. So, also, does an undertaking to give security order. (Downie v. Moran, 2 Ir. Jur. O. S. 93). And, pending such stay, the defendant cannot rule the plaintiff under the 38th or 106th sections of the Act (Anderson v. Walsh, Ir. R. 3 C. L. 97; Fielden v. Donagh, 8 Ir. C. L. R. Ap. 45). Nor does the time, during which the stay was in force, count in the periods of time mentioned in those sections, when the rule has been vacated or discharged, or complied with after the expiration of the period in question (Ross v. Green, 10 Ex. 891). As to issuing execution to enforce payment of costs previously awarded, Re Drake v. Curtis, 5 Ir. Jur. O. S. 124.

As to setting aside a judgment marked after service of the preliminary Operation of notice or notice of motion for security for costs, see Bredin v. M'Carthy, 6 Ir. notice. Jur. N. S. 158; Stewart v. Vallance, 10 Ir. C. L. R. Ap. 1, in both which cases the judgment was set aside, the motion for security for costs having being granted; and see the 54th G. O. 1854.

When a plaintiff comes to reside permanently within the jurisdiction after Discharging the making of the order, the order will be discharged (Eyre v. Baldwin, 4 Ir. C. L. R. 270; Palmer v. Lord Ashbrook, 4 Ir. Jur. O. S. 193).

As to the manner in which security is to be given, see the 53rd G. O. 1854. And as to drawing out the money, in case the party lodging it becomes entitled to be repaid it, see the C. L. P. Act, 1856, sect. 102.

order.

Forms in

53. The Forms of pleading contained in Schedule C. to this Act annexed shall be sufficient in the cases to which they Schedule: apply, and these and the like Forms may be used, with such adopted. modifications as may be necessary to meet the facts of the 15 & 16 Vict.

may be

c. 76, s. 91.

When forms not appli cable.

When dethem fatal.

case (d); but nothing herein contained shall render it erroneous or irregular to depart from the letter of such Forms, so long as the substance is expressed without prolixity (e).

(d) In cases where the forms do not apply, they cannot, of course, be employed; and accordingly, in Derrys v. Byrne, 7 Ir. C. L. R. 302, the defence of son assault demesne, given in Schedule C. to the Act (form 36), was held to be demurrable when pleaded in an action of assault and battery, on the grounds that it was an answer to the assault only, and not to the battery.

(e) A count for work and labour will be demurrable if it does not contain parture from an averment that the work was done at the "request" of the defendant (Corah v. Young, 6 Ir. C. L. R. 138; M'Phail v. Little, 9 Ir. Jur. N. S. 267). The absence of the words "money payable by the defendant to the plaintiff," in an indebitatus count for goods bargained and sold, has been held not to be demurrable (Gason v. O'Ryan, 7 Ir. Jur. O. S. 272); with which compare Place v. Potts, 8 Exch. 705; Wilkinson v. Sharland, 10 Ex. 724, from which it would appear that in England the absence of the words in question would be good ground of demurrer, as not showing that the money is payable in præsenti. In Aldborough v. Hagarty, 8 Ir. Jur. N. S. 341, a count for "money payable by the defendant to the plaintiff on an account stated between them" was held to be good.

Different causes of

action may be joined.. but separate

trials may be

ordered.

15 Vict.

c. 76, s. 41.

Must be in the same right.

When separate re

cords will be made up.

Joinder of claims by

And see further, sections 81 and 83, post, and the notes thereto.

54. Causes of action, of whatever kind (except in ejectment), may be joined in the same summons and plaint, provided they be by and against the same parties and in the same rights (f), except as herein-after mentioned; but the Court or a Judge shall have power to prevent the trial of different causes together, if such trial would be inexpedient, and to order separate records to be made up and separate trials had (g).

(f) It will be observed that it is only causes of action in the same rights that can be joined. Therefore, a plaintiff cannot join a cause of action accruing to him in his own right, with one accruing to him as executor, nor can a defendant be sued in one count in his own right and in another as executor (Nixon v. Quinn, Ir. R. 2 C. L. 248; Magennis v. Dempsey, Ir. R. C. L. 327; Davies v. Davies, 31 L. J. Ex. 476). And such a misjoinder is good ground for demurrer. Similarly in actions against husband and wife, a cause of action against the husband only cannot be joined with a cause of action against the husband and wife.

(g) If an embarrassment would arise at the trial, from the different issues being tried together, the Court will exercise its power of directing separate records (Cantwell v. Cannock, 3 Ir. C. L. R. 78); and in England, previous to the late alteration in the law of evidence, counts founded on breach of promise of marriage were not allowed to be joined with counts founded on a different cause of action (Sherratt v. Webster, 8 L. T. N. S. 254).

55. In any action brought by husband and wife for any husband and cause of action accruing in respect of the wife, and in respect of which she is necessarily joined as co-plaintiff, it shall be

wi.e, with

lawful for the husband to add thereto claims in his own right, and separate actions brought in respect of such claims, if in the same Court, may be consolidated, if the Court or a Judge shall think fit; provided that in the case of the death of either plaintiff such suit, so far only as relates to the causes of action, if any, which do not survive, shall abate (h).

(h) Previous to this enactment, the law in reference to actions by husband Old law. and wife was, that the husband could not recover in the action any damages in respect to the cause of action to which he was entitled in his own right. Thus, he could not, in an action for an assault and battery upon the wife, recover the expenses to which he was put in curing her (Dengate v. Gardiner, 4 M. & W. 5). A count in respect of such damages might of course be now inserted pursuant to the above section; but the provisions of this section are permissive and not obligatory, and the husband may still bring his separate action (Brookbank v. The Whitehaven Junction Railway Co., 7 H. & N. 834), subject, however, to the contingency of the actions being consolidated if the Court or Judge shall think fit.

may join.

Although the section may appear to be limited by the words at the com- What claims mencement, to actions brought for a cause of action accruing in respect of a husband the wife, yet the words "claims in his own right" would seem to be wide enough to include claims not connected with the wife. And, accordingly, under the corresponding English section, where a husband brought an action for a personal injury to himself and to his trade by an explosion, and he and his wife brought a separate action for injuries sustained by her resulting from the same explosion, the Court of Exchequer consolidated the two actions (Hemstead v. Phoenix Gas Co., 3 H. & C. 745; and see Morris v. Moore, 19 C. B. N. S. 359; Morley v. Midland Railway Co., 3 F. & F. 961).

In every case where an action is brought by a husband and wife it should Misjoinder of wife fatal. clearly appear in the summons and plaint in what right the wife is joined, and if it do not so appear the plaint will be bad on demurrer (Cahill v. M Dowall. 13 Ir. C. L. R. 481), or it may be set aside (Franklin v. Walker, Ir. R. 4. C. L. 236).

wife in her own name.

It may be well to mention here that under the 33 & 34 Vict. c. 93. a Action by married woman may now maintain an action in her own name for the recovery of any wages, earnings, money, and property declared by the Act in question to be her separate property, and for and in respect of the other matters therein provided for.

nature of

pleadings.

56. The defence (i) and replication (j) and subsequent Form and pleadings, if any, shall state all facts which constitute the defence and ground of the defence or reply in ordinary language, and subsequent without repetition, and as concisely as is possible consistent with clearness; and if such defence or subsequent pleading is only applicable to a portion of the preceding pleading, the portion to which it is applicable shall be shortly referred. to (k).

General issue abolished.

When de

fence should be special.

Pleas in abatement.

Replication.

Defence to part only.

Several matters may be pleaded at

any stage of the pleadings.

(i) By the above section, and sections 70 and 71, post, the general issue is abolished, and the parties to the action required to state their case clearly and specifically. The defendant must, accordingly, take care, in framing his defence, to set out specially the facts on which he relies, whenever they are not admissible under the ordinary traverses, as otherwise he will be precluded from giving them in evidence at the trial. Thus, in Leach v. Palmer, 11 Ir. Jur. N. S. 395, where the action was brought for goods sold and delivered, it was held that the defendant could not, under the ordinary traverse, give in evidence an unexpired credit; and the ruling in this case was followed in Strange v. Kelly, 1 Ir. L. T. 713. In Boake v. M'Cracken, 6 Ir. C. L. R. 259, where the action was also for goods sold and delivered, and the ordinary traverse was pleaded, under which the defendant attempted to prove that the sale had been by sample, and that the goods delivered were not of the same kind as the sample, the Court of Common Pleas was equally divided as to whether the evidence was admissible. In Mosely v. M‘Mullen, 6 Ir. C. L. R. 69, it was, however, held by the Court of Exchequer, in a similar action, that a special defence, stating that the contract was made on certain conditions not complied with, is unnecessary, as that defence may be given in evidence under the ordinary traverse; and in cases where the plaintiff relies in his plaint upon a special contract, it has been frequently held that although a defendant may allege in his defence that the contract was subject to a condition not fulfilled, yet it is unnecessary for him to do so, as he may give it in evidence under the ordinary traverse (Kenyon v. Tayleur, 8 Ir. C. L. R. Ap. 76; Habgood v. Paul, 8 Ir. C. L. R. Ap. 23); and see further as to when it is necessary to plead facts specially, sect. 48, ante, note (w). As to the requirements of pleadings in general, and the grounds on which they may be objected to or set aside by the opposite party, see post, ss. 70 and 71, and the notes to ss. 81 and 83.

When the defendant pleads in abatement, he must, pursuant to the 6th Anne, c. 10, s. 11, verify his pleading by an affidavit, which, by the 24th G. O. of 1854, must be annexed to the pleading and entitled in the cause. The whole of the pleading in such a case must be verified (Odell v. Raymond, 2 F. & S. 21); and if this be not done, the plaintiff may obtain leave to mark judgment (Coleman v. Brady, Smythe, 155).

(j) The replication must, like the defence, state concisely the facts constituting the grounds of reply, and it is in general subject to the same rules as to duplicity, &c., as the other pleadings. Accordingly, when leave is given to reply and join issue (which latter must be done in the form of a replication), the replication must be single, and leave must be obtained to reply several matters if the plaintiff should desire to do so (Germaine v. Athenæum Assurance Company, 5 Ir. C. L. R. 205; Naghten v. Kelly, Ir. R. 1 C. L. 556). As to new assigning, see Keaney v. Tottenham, Ir. R. 2 C. L. 45; Tallon v. Hassard, 9 Ir. Jur. N. S. 34; and as to replying and new assigning, see Tracey v. Cruise, Ir. R. 1 C. L. 576.

(k) If the portion to which the defence is applicable is not referred to, the plaintiff may set the defence aside (Ammarman v. Robins, 7 Ir. C. L. R. 415; Dunsandle v. Finny, 10 Ir. C. L. R. 171).

57. The plaintiff in any action may, by leave of the Court. or a Judge, plead in answer to the defence or the subsequent pleading of the defendant as many several matters as he shall think necessary to sustain his action; and the defendant in

c. 76, s. 81.

any action may, by leave of the Court or a Judge, plead in 15 16 Vict. answer to the summons and plaint or other subsequent pleading of the plaintiff as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application or his attorney, if required by the Court or a Judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact (1).

(1) Leave may be obtained under this section to plead several defences, Inconsistent notwithstanding that they are inconsistent with one another, provided the defences. necessity for pleading them be shown (Hall v. O'Flaherty, 6 Ir. Jur. O. S. 113). Leave, too, may be obtained to plead in bar and in abatement (M Mahon v. O'Neill, 6 Ir. Jur. N. S. 18). And in actions of libel and slander leave has been given to traverse that the words were spoken of the plaintiff, that they were spoken in the defamatory sense, and to plead privilege (Lyttle v. Hunter, 3 Ir. Jur. N. S. 142; Alexander v. Robinson, 8 Ir. Jur. N. S. 414). In an action for an assault, leave has been given to plead that the assault, &c., was committed for the purpose of preventing a breach of the peace, and a certificate under 24 & 25 Vict. c. 94, s. 44 (Lawler v. Kelly, 15 Ir. C. L. R. Ap. 1); and numerous instances of several pleas allowed to be pleaded may be seen in Ch. Arch. Pr. 12th Ed., p. 279.

On the other hand, where the action was for libel, leave to plead a tra- In actions of verse of the defamatory sense, and an apology and payment into Court under libel. the 6 & 7 Vict. c. 96, has been refused (Barry v. M'Grath, Ir. R. 3 C. L. 576). And when money is paid into Court under sect. 75 of the Act, leave Where to plead another defence in addition to a plea of payment, will be refused money paid into Court. (Kelly v. Slater, 7 Ir. C. L. R. 55; with which compare Ryan v. Roughan, Ir. R. 4 C. L. 337).

Where the defences sought to be pleaded are grossly inconsistent, leave to plead them will be refused. v. M'Donough, 3 Ir. C. L. R. 584.

In actions of seduction, leave to plead a traverse of the service with other defences will be generally refused, except under special circumstances, Hall v. Devereux, Ir. R. 4 C. L. 265, 268). In Bone v. Smith, Ir. R. 2 C. L. 244, the Court in such an action gave the defendant, under the circumstances of the case, leave to withdraw a traverse of the service, and to plead the Statute of Limitations.

Where a plaintiff obtains leave to reply and demur, he cannot reply gene- Several rally taking issue; and if he replies several matters without obtaining leave, replications, his replication will be set aside (Germaine v. Athenæum Life Assurance Co.,

5 Ir. C. L. R. 205).

obtained.

For the purpose of obtaining leave to plead several defences, the applica- How leave tion must in general be supported by an affidavit in the terms of the section. Affidavit. It need not necessarily be positive in its terms; belief is sufficient (O'Hara v. Mitchell, 6 Ir. Jur. O. S. 248). The affidavit should, however, state specifically the matters intended to be pleaded, and then proceed to verify them (Sheehan v. Prendergast, 1 Ir. Jur. N. S. 49); and when the defences sought to be pleaded are special in their character, a fuller verification