Where mistake in copies of the pleadings.

Frivolous demurrer.

Cross demurrers.

Costs.

Pleadings good in substance sufficient.

15 & 16 Vict.

51.

If an incorrect copy of a pleading be delivered, the Court, on the argument of the demurrer, will give judgment according to the pleading on the file and not according to the copy served (Palmer v. Robinson, 1 Ir. C. L. R. 354; Lawless v. Bryce, Ir. R.5 C. L. 190); see, however, Majoribanks v. Daly, Huds. & Br. 135.

If a demurrer be taken in consequence of an incorrect copy of a pleading having been delivered, the mistake should be corrected while the paper books are lying in the office of the Clerk of the Rules; or the Court may give leave to amend when the demurrer comes on for argument, in which case it may be necessary to apply for leave to amend by a substantive motion; see Boylan v. Dublin and Belfast Junction Railway Co., 4 Ir. C. L. R. 172. In every such case, however, the party delivering the incorrect copy, or his attorney, must pay all costs incurred by reason of the mistake, including the costs of the demurrer, in case the opposite party wishes to withdraw the demurrer, and plead (O'Connell v. Unthank, 1 Ir. C. L. R. 352, Sherlock v. Gibbings, 2 Ir. C. L. R. 260. And see ante, p. 42, note (m). If, however, the party demurring, was aware at the time of so doing, of the variance between the record and the copy, he will not get the costs of the demurrer (O'Connell v. Unthank, ubi supra).

If the demurrer be obviously frivolous, as for instance, if it be taken in consequence of a mere clerical error, will be set aside (Berkeley v. Whitley, 5 Ir. Jur. N. S. 198; Blake v. Farrell, 2 Ir. L. T. 718); or set down for argument at once (Barret v. Daly, 8 Ir. L. R. 518; Doolin v. Doolin, 6 Ir. Jur. N. S. 386). And see sect. 83, post, under which the Court has power to set aside a demurrer, so framed as to prejudice, embarrass, or delay the fair trial of the action. So, also, a demurrer may be set aside if taken against good faith (Cusack v. Cusack, 1 Ir. Jur. N. S. 49).

In the case of cross demurrers, the right to begin is discretionary with the Court, and will be regulated according to convenience. It is not, as of course, the right of the plaintiff to begin (West v. Barrington, 7 Ir. C. L. R. 16). See, however, Redway v. Sweeting, L. R. 2 Ex. 400; Halhead v. Young, 6 El. & Bl. 312.

The party succeeding on demurrer is entitled to his costs, under the 9 Wm. 3, c. 10. and 3 & 4 Vict. c. 105, sec. 59 (post in the Appendix, p. c.); and see ante, sec. 60.

any

81. No objection by way of general or special demurrer for formal matter only shall be allowed, and no pleading shall be deemed insufficient for defect which could heretofore be c. 76, ss. 50, objected to only by special demurrer; and wherever issue shall be joined on any demurrer the Court shall proceed and give judgment according to the very right of the cause, without regarding any imperfection, omission, defect in or lack of form; and every summons and plaint and defence or other pleading which shall, with reasonable clearness and distinctness, state all such matters of fact as are necessary to ground the action, defence, or reply, as the case may be, shall be sufficient, and it shall not be necessary that such matters shall be stated in any technical or formal language or

manner.

murrers.

(s) By this section special demurrers and objections, by way of demurrer, Special defor mere formal matters have been abolished, and the Court is required in every case to give judgment according to the very right of the cause. It would not, of course, be possible here to enter into any detailed discussion of - what constitutes within the meaning of the section a good ground for demurrer. Such a question is one depending mainly upon the principles of law applicable to each particular case, and accordingly it is proposed to refer here to a few only of the leading cases, showing the general principles on which the Courts have acted since the passing of the Act in giving judgment upon demurrer.

Although, before the passing of the Act the rule upon demurrer was, that where a pleading was ambiguous, it was to be construed strictly against the party pleading (and the same rule still prevails in England, see Wilkinson v. Sharland, 10 Ex. 724), yet, in this country the Courts have held that since the passing of the Act the rule is otherwise, and the pleading is to be construed in favour of the pleader; in other words, if an allegation in a pleading is fairly susceptible of two meanings, one of which will make the pleading bad and the other good, that construction is to be preferred which will make the pleading good (Ruckley v. Kiernan, 7 Ir. C. L. 75, 79, 80; M'Kinney v. Irish North-Western Railway Co., Ir. R. 2 C. L. 600, 603, per Monahan, C. J.). In the latter case, the action was brought against the defendants for negligence resulting in the death of one of their servants, and upon demurrer it was held by the Exchequer Chamber that the allegation of negligence contained in the plaint should be construed to mean an act of negligence on the part of the defendants themselves, and not an act of negligence on the part of their servants, and that if the defendants were embarrassed by the generality of the pleading, their proper course would have been to have applied to the Court to set the pleading aside, and not to have demurred.

So also where a count upon a bill of exchange omitted to aver, that the defendant did not pay the amount, the omission was held to be cured by the introductory averment of the defendant being indebted (Pepper v. Kelly, 5 Ir. C. L. R. 317); with which compare Shannon v. Brennan, 2 Ir. Jur. N. S. 188. And the omission of the words, "money payable by the defendant to the plaintiff," has been held not to vitiate an indebitatus count for goods sold and delivered ( Gason v. O'Ryan, 7 Ir. Jur. O. S. 272). In most of the cases referred to, however, the party demurring might have had the pleading amended under section 83, post.

How plead

ings con

strued upon demurrer.

Where no averment to pleading.

sustain the

Although, however, the Court will, as above mentioned, construe a pleading, whenever it is possible so to do, in favour of the party pleading it, yet the rule only applies where there exists some positive allegation susceptible of the desired meaning, and not where the objection is the absence of proper averments to maintain the pleading (Mugennis v. Dempsey, Ir. R. 3 C. L. 331). In the latter case there is, in fact, nothing for the rule to act upon. Thus, a count for work and labour, omitting to aver a request, will be bad (Corah v. Young, 6 Ir. C. L. R. 138; M'Phail v. Little, 9 Ir. Jur. N. S. 267). So also a count upon a contract to indemnify which omits to aver that the plaintiff paid the amount sought to be recovered (Shannon v. Brennan, 2 Ir. Jur. N. S. 188). And it has been held in numerous cases that where an action is brought for an illegal distress a defence justifying tress. the trespass complained of as a distress for rent will be bad unless it expressly avers compliance with the requirements of the 9 & 10 Vict. c. 111,

Actions for

illegal dis

(Madden v. Bryan, 1 Ir. C. L. R. 322; Naghten v. Kelly, Ir. R. 1 C. L. 556; M'Leary v. Davis, Ir. R. 2 C. L. 234); although a contrary opinion seems at one time to have prevailed (Brennan v. Flood, 4 Ir. C. L. R. 332; Spratt v. Murphy, 6 Ir. C. L. R. 489). As to when a count in negligence will be bad upon demurrer, see Smyly v. Glasgow and Londonderry Steam Packet Co., Ir. R. 2 C. L. 24; Collis v. Selden, L. R. 3 C. P. 495.

When a pleading construed according to the rule just mentioned discloses no cause of action or no answer to the previous pleadings, judgment will, of course, be given upon the argument of the demurrer against the party pleading it; and, this is so in many cases where the objection may appear at first sight to be of a technical nature. Thus a departure is a good ground of demurrer, inasmuch as it leaves the previous pleadings unanswered ( Blood v. Keller, 11 Ir. C. L. R. 124; Barry v. Grogan, Ir. R. 2 C. L. 390; M. Kenna v. Misjoinder of Moutray, 8 Ir. Jur. N. S. 233). So also is a misjoinder of plaintiffs or defendants, provided it appears upon the record (Cahill v. M'Dowell, 13 Ir. C. L. R. 481; Bellingham v. Clark, 1 B. & S. 332).

Departure.

parties.

Misjoinder of
Causes of

action.

Objections to form of

pleading.

The Court will give judgment upon the whole record.

Particulars.

Where de

So also, although the plaint discloses a good cause of action, yet if it be so framed that the judgment of the Court cannot be given upon it, it will be demurrable; as in a case where there is a misjoinder of causes of action (Nixon v. Quinn, Ir. R. 2 C. L. 248); or where the plaint seeks to recover for a partial breach only, but shows that the plaintiff is entitled to recover for a breach of the entire contract (Kingsley v. Hackett, 14 Ir. C. L. R. 58; Blount v. Evans, 5 Ir. C. L. R. 371).

Where, however, the objection is only to the form of the pleading, as, for instance, if it be objected to on the grounds of duplicity or argumentativeness merely, the demurrer will be overruled; and if the demurrer be upon merely frivolous grounds, as, for instance, using the word "plaintiff" in place of "defendant," it will be, as before mentioned, overruled or set aside (Berkeley v. Whitley, 5 Ir. Jur. N. S. 198); and see Bush v. Curran, 9 Ir. C. L. R. Ap. 28.

On the argument of a demurrer the Court, with a few exceptions, is bound to give judgment upon the whole record, and not merely upon the pleading demurred to, and consequently when a defence is demurred to, the defendant is entitled to fall back on the summons and plaint and show that it cannot be sustained (Irwin v. Osborne, 5 Ir. C. L. R. 404); and the fact of the objections relied upon not appearing upon the demurrer books is not sufficient to deprive the defendant of the benefit of them, and, at most, 'would only entitle the defendant's counsel to an adjournment on the ground of surprise (Levingston v. Guardians of the Lurgan Union, 1 Ir. L. T. 778). See, however, Arbouin v. Anderson, 1 Q. B. 489; Bayley v. Homan, 3 Sc. 384. The exceptions to the general rule are: 1st. When a plaintiff demurs to a plea in abatement. In that case, the Court, if the demurrer be well founded, will (at least such was the practice under the old law) give judgment for the plaintiff without regard to any defect in the plaint; and 2nd. Though on the whole record the right may appear to be with the plaintiff, the Court will not adjudge in favour of such right unless the plaintiff have himself put his action upon that ground: Step. Pl. 6th Ed. p. 134.

Upon the argument of the demurrer, the particulars indorsed upon the plaint or defence cannot be referred to for the purposes of argument (Sigsworth v. Farrell, Ir. R. 2 C. L. 321). As to referring to the documents relied upon in the pleadings, see ante sect. 63, note (u).

If the demurrer be too large, that is, if some of the matter covered by it

be sufficient in point of law, it would, according to the practice at one time murrer too prevailing, have been overruled in toto. The practice, however, now in large. such a case is to give judgment distributively. Thus, where some of the counts in a plaint were good and some bad, a demurrer taken to the entire plaint was allowed as to the bad counts, but overruled as to the others (Jackson v. Veich, 3 Ir. Jur. N. S. 201); and a similar course was adopted in Briscoe v. Hill, 10 M. & W. 735, and Black v. Howley, 3 Ir. Jur. 122; and see the learned note to Hinde v. Gray, 1 M. & G. 201, note (a). As to demurring to one portion of a count and pleading to the rest, see Boyle v. Hammond, 3 Ir. C. L. R. 579; Longford v. Oldham, 4 Ir. C. L. R. 134; and as to aider by pleading over, see Maubourquet v. Wyse, Ir. R. 3 C. L. 471.

Where the pleadings are imperfect by reason of a discontinuance no judg- Discontinument can be given upon demurrer (Brown v. Salmond, 6 Ir. Jur. N. S. ance. 135).

demurrer

82. Judgment on demurrer for the defendant, and also for Judgment on the plaintiff, in all cases in which the action is for a liquidated final. or money demand (t), shall be final (w), unless the Court shall give liberty to amend the pleading demurred to, or to plead de novo on the argument of the demurrer, or by any subsequent order (r).

(t) As to what is a liquidated or money demand, see post, sect. 96. (u) A judgment for the plaintiff upon demurrer is interlocutory or final in the same manner, and in the same cases as a judgment by default. See sects. 98 and 100, post.

() This proviso would appear to apply only to cases where the pleading demurred to has been held bad, and not to cases where the pleading has been upheld.

When a defendant applies for leave to amend a defence, bad in point of form or of law, it is discretionary with the Court to grant or to refuse the application, and an affidavit of merits may, therefore, be required (Bishop v. Wigram, 7 Ir. Jur. O. S. 22; Hutton v. Hutchins, 4 Ir. C. L. R. 234). As a general rule, however, where leave to amend is sought for, more especially if before argument, it will be granted without such an affidavit (Meyler v. Morton, 7 Ir. L. R. 229; Cannon v. Nixon, Bl. D. & O. 95 ; Johnson v. O'Hagan, Ib. 96, note (b). Except in cases where leave to amend is given upon the argument, or in giving judgment (Davies v. Evans, 5 Ir. Jur. O. S. 274), the application should be upon notice (Cunnon v. Nizon, ubi supra; Queen v. Bishop of Cork, 11 Ir. L. R. 114, 147). Where leave to amend is sought for after argument or judgment, the Court will be slow in giving leave to amend, more especially if the party has already refused to amend (Skuse v. Davis, 10 A. & E., 635, 640; Farebrother v. Worsley, 1 C. & J. 549, 563). As to the amendment of pleadings in general, see post, sect 231.

Giving leave to amend pleading demurred to.

Where the pleading demurred to has been upheld and the unsuccessful Withdrawing party wishes to withdraw his demurrer the Court may, where the justice of demurrer. the case requires it, allow him to do so upon terms, and to substitute a defence or other pleading in its place (Reeve v. Morris, 3 Ir. L. R. 3; Bentley v. Dawes, 9 Ex. 666). As instances of cases where such leave has been

Pleadings framed to embarrass may be amended.

Embarrass

refused, see M. Eniry v. Waterford and Limerick Railway Co., 8 Ir. C. L. R. Ap. 61; Birch v. Hart, Hayes, 494; Bramah v. Roberts, 1 Bing. N. C. 481; and it would follow from the two latter cases that an application for leave to withdraw a demurrer after judgment and to plead, should be accompanied with an affidavit of merits.

As to withdrawing a demurrer before argument, or pending the argument, see 2 Ch. Pr. 12th Ed., p. 927.

83. If any pleading or demurrer be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the Court or a Judge to strike out or amend such pleading, and the Court or a Judge shall make such order respecting the same, and also respecting the costs of the application, as to such Court or Judge shall seem fit (w).

(w) Special demurrers having been abolished, it became necessary to ing pleading. substitute in their place some means by which a party embarrassed by a pleading which would be held good on general demurrer could have it amended or struck out. Accordingly the above section was passed for that purpose. The cases decided under it have been, as might be expected, extremely numerous, and it would not be possible to state them all here. Reference will accordingly be made only to the principal ones.

Where pleading insensible.

Where pleading ambiguous.

A party may be embarrassed by the pleading of the opposite party in several ways. The pleading may be insensible and repugnant, and, if so, it will be set aside. As, for instance, where in an action for non-delivery, the contract declared upon was stated in the plaint, both as a contract to deliver upon request, and when sent for (Warren v. King, 11 Ir. C. L. R. Ap. 10). So also where to an action upon a promissory note, the defendant pleaded that he did not accept the bill of exchange the defence was set aside, and leave granted to mark judgment (Flood v. Hennigan, 1 Ir.Jur. N. S. 189). And where a summons and plaint by the public officer of a banking company, who sued in his official capacity, disclosed a cause of action accruing to him in his private capacity only, it was set aside (Murray v. Comyn, 11 Ir. C. L. R. 239).

Again, though the pleading be not insensible, the opposite party may be embarrassed by it, as, for instance, if it be ambiguous. In such a case the embarrassment may arise from the pleading being susceptible of one meaning at Nisi Prius, and another upon demurrer It is true that, in such a case the Court will, upon demurrer, in accordance with the principle of Ruckley v. Kiernan, 7 Ir. C. L. R. 75, attribute to the pleading the meaning which will uphold it, and the same meaning will, of course, be attributed to it at Nisi Prius (Lawrenson v. Hill, 10 Ir. C. L. R. 177); but, nevertheless upon an application to the Court under this section, such an objection is a fatal one (Clarke v. Scully, 10 Ir. C. L. R. Ap. 4; Franklin v. Walker, Ir. R. 4 C. L. 236). On the same principle, in an action upon a negotiable instrument, a defence of a contemporaneous agreement not to enforce payment in a certain event, should aver that the agreement was in writing (Palliser v. Redmond, 10 Ir. Jur. N. S. 133); and see Young v. Austen, L. R. 4 C. P. 553; and where a release can only be by deed, it must be alleged in plead