ing to be by deed (Hutton v. Hutchins, 4 Ir. C. L. R. 234; Neville v. Hyland, 3 Ir. C. L. R. 238), in which latter case the action having been brought to recover rent, a defence of an agreement to accept an abated rent was set aside because it was not averred to have been under seal. Compare with these cases Coey v. Belfast and County Down Railway Co., 11 Ir. Jur. N. S. 127; Egan v. Neill, 9 Ir. C. L. R. Ap. 9; Forsyth v. Bristow, 8 Ex. 347. Similarly, a defence of contributory negligence, which averred that the plaintiff's negligence contributed to the damage, was ordered to be Defence of amended by averring that it "directly" contributed (Lawlor v. Wheeler, 8 contributory Ir. Jur. N. S. 397). As to the form of a defence of contributory negligence negligence." in general, see Doyle v. Kinahan, Ir. R. 4 C. L. 150, and the cases there referred to. A plaint complaining of a false representation will be set aside if it does not aver that the representation was false to the knowledge of the person making it (Crooke v. Powerscourt, 1 Ir. L. T. 660); and a defence to an action for a false imprisonment, justifying the a re-t, was set aside for not containing a positive allegation that a felony had been committed (Dowd v. Percy, 9 Ir. Jur. N. S. 140). A pleading will also be set aside on the ground of ambiguity, if the issue in fact arising upon it be ambiguous and uncertain, as, for instance, in the case of a defence, if it be so framed as to leave it uncertain what is intended to be traversed and what admitted (Smyley v. Kelly, 5 Ir. Jur. N. S. 321). In that case the plaint stated a building agreement, and alleged as a breach certain deviations from the plan, and a defence that everything was done by the defendant according to the terms of the agreement, was set aside as embarrassing. On the same principle, a defence amounting to the general issue will be set aside; as, for instance, a defence to an action for goods sold and delivered, that the defendant "is not indebted (Allard v. Ranagan, 3 Ir. C. L. R. 233), or "does not owe" the amount (Martin v. Roe, 6 Ir. Jur. O. S. 244); or, that "no money was owing" (Kennedy v. Kelly, 17 Ir. C. L. R. 391). As to a defence that the defendant "never was indebted," see Martin v. M'Hugh, 6 Ir. Jur. O. S. 279; Meade v. Morrow, 4 Ir. C. L. R. 284. Where a plaint averred that for certain considerations the defendant "promised," &c., a defence alleging that the defendant "did not promise as alleged," was set aside as amounting to the general issue (M Gloin v. Bell, Ir. R. 2 C. L. 126); and see Fitzgibbon v. Nagle, 10 Ir. C. L. R. Ap. 35; Smyth v. Scott, 8 Ir. C. L. R. Ap. 35, where similar defences were set aside. On the other hand, a defence to an action of libel that the publication complained of is no libel, will not be set aside (Nixon v. Harvey, 8 Ir. C. L. R. 446). As to a defence of fair comment, see Clinton v. Henderson, 13 Ir. C. L. R. Ap. 43; Travers v. Potts, 15 Ir. C. L. R. Ap. 2; Kane v. Mulvany, Ir. R. 2 C. L. 402. A plaint so framed that it is uncertain whether the gist of the action be for a malicious prosecution or an arrest, will be set aside under this section (Allen v. M'Coombe, 8 Ir. Jur. N. S. 310; Harrington v. Murphy, 3 Ir. L. T. 407); and so also will a count in contract, which alleges as a breach that the defendant fraudulently omitted to deliver an account (The Great Ship Co. v. Russell, 3 F. & F. 94); and for other instances of pleadings which have been set aside on the grounds of uncertainty and ambiguity, see Craig v. Beattie, 1 Ir. L. T. 209; Rutledge v. Blake, ib. 349; Stewart v. Robinson, Ir. R. 3 C. L. 69; Byers v. Beattie, Ir. R. 1 C. L. 209; where a defence of non damnificatus was set aside. General issue. Again, a pleading, which may not be open to objection on the grounds of Where being ambiguous, will be set aside, if wanting in due particularity and expli- pleading G wanting in particula rity. Names of persons. Plea of fraud. citness. The amount of particularity requisite in a pleading varies with the nature of each particular case. When a party states in his pleading a conclusion of law, he should set out in his pleading the facts on which the conclusion is rested; and if he does not, his pleading may be set aside-as, for instance, where a defendant pleaded that, "on the true construction of a certain deed, the plaintiff was bound to produce a debenture " (Malone v. Harris, 2 Ir. Jur. N. S. 324; Pontet v. Magrath, 6 Ir. Jur. O. S. 253). A defence to an action of trespass, alleging that the defendant had a right to enter to distrain, and that the entry was in virtue of such right, was set aside, as not showing the nature of the right. On the same principle, where a party complains of a violation of a duty, it is not sufficient to charge generally a violation of duty; the facts from which the duty flows must be averred (Potts v. Plunkett, 9 Ir. C. L R, 290). When the allegation in a pleading is not a conclusion of law, but one of fact, or of mixed law and fact, the pleading will be set aside, if the allegation is too general. Thus, where a defence to an action of trespass is founded on an easement claimed by the defendant, the defence should show the facts, &c., on which the easement claimed is founded (Hall v. Burton, 8 Ir. Jur. N. S. 391). So, also, a defence to an ejectment for non-payment of rent which alleged a discharge of the rent, was set aside, for not showing how (Hughes v. Browne, 13 Ir. C. L. R. Ap. 5). And where a defendant pleaded that he did the acts complained of as a Justice of the Peace, and with respect to matters within his jurisdiction, the defence was set aside upon similar grounds (Donohoe v. Keogh, 17 Ir. C. L. R. 39). On the same principle, when a defendant to an action for libel or slander wishes to plead a defence of justification or privilege, he should not plead such defence generally, but should state the particular facts on which he relies as constituting the justification, or conferring the privilege (Janson v. Stuart, 2 Sm. L. C. 5th ed. p. 55; Praeger v. Shaw, 4 Ir. C. L. R. 660). So, also, a defence to an action upon a bill of exchange, "that the plaintiff did not give the defendant any consideration for the indorsement to the plaintiff of the bill of exchange" was set aside as embarrassing (Faris v. Ross, 1 Ir. Jur. 109, 137). In such a case, the defence should show specifically how there was no consideration. A defence to an action upon a note that the plaintiff was not the lawful holder thereof, was ordered to be amended (Barber v. Doyle, 12 Ir. C. L. R. 342). A defence by a railway company, relying upon an inevitable accident, should state the facts constituting such inevitable accident (Burns v. Cork and Bandon Railway Co., 13 Ir. C. L. R. 543). On the same principle, the names of persons referred to in a pleading must, in general, be given; and the omission to state them is a good ground for setting it aside (Gibbons v. Cusack, 14 Ir. C. L. R. 284; Godfrey v. Cross, 12 Ir. C. L. R. 333). In such a case, however, and more especially where the persons are referred to in the averment of special damage, the Court may refuse to set the writ aside, and order the party to furnish particulars of the names (Smith v. Dublin and Drogheda Kailway Co., 7 Ir. Jur. O. S. 395). As to the necessity of stating the names of persons in the allegation of special damage, see Evans v. Harris, 1 H. & N. 251; where it was held that in an action for slander of the plaintiff in his business of an innkeeper, it is sufficient to allege and prove, as special damage, a general loss of custom, without stating the names of the customers who have ceased to frequent the inn. À defendant need not, in general, set forth in his defence the particular facts of fraud relied on by him in a defence to that effect; but if necessary, he will be ordered to furnish particulars (Reddick v. Cavanagh, 3 Ir. C. L. R. 582; M Creight v. Stevens, 1 H. & C. 454); and see Hooper v. Bristol Port Co., 35 L. J. C. P. 299. Neither is it necessary, in general, that he Grounds of should set forth the grounds of belief or suspicion relied on by him in his belief and defence (Fox v. Broderick, 8 Ir. Jur. N. S. 194; Buckley v. Barry, Ir. suspicion. R. 2 C. L. 363, overruling Hennessy v. Morgan, 8 Ir. C. L. R. Ap. 69); and see Callaghan v. Sullivan, 1 Ir. L. T. 713. And where an action is brought by the assignee of a reversioner named in a lease, the plaintiff may aver generally that all the estate and interest of the reversioner has become vested in him; and a plaint containing such an averment will not be set aside for want of particularity (Lindsay v. O'Neill, 5 Ir. C. L. R. 461, per Monahan, C. J.; Stapleton v. Bergin, 4 Ir. C. L. R. 421). fence an answer to part Although a pleading may be perfectly unambiguous in its language, and free from any objection as wanting in particularity, there are several other defects in pleading, for which it may be set aside under the above section. Where deThus, a defence will be set aside if it be an answer to a part only of the cause of action, unless it be confined to the part to which it is an answer only. (Garrett v. Waldron, 9 Ir. C. L. R. Ap. 24; Dunsandle v. Finney, 10 Ir. C. L. R. 171; Ammarman v. Robins, 7 Ir. C. L. R. 415; Lynch v. Irwin, 8 Ir. Jur. N. S. 155); with which cases compare Yourell v. Proby, Ir. R. 2 Duplicity. C. L. 460. So, also, a plaint, defence, or other pleading will be set aside on the ground of duplicity. In Redmond v. Clarke, Ir. R. 4 C. L. 316, a plaint, which complained that the defendant negligently managed a vicious horse which he knew to be vicious, was set aside, as double; and in Callaghan v. City of Dublin Steam Packet Co., 1 Ir. L. T. 247, a count in a plaint which relied on two different acts of negligence, was set aside on similar grounds; and see Wyse v. Lewis, 9 Ir. Jur. N. S. 84; Whitty v. Jackson, 3 Ir. L. T. 425. In the latter case, the action being brought under Lord Campbell's Act, a defence, traversing that the family of the deceased suffered any pecuniary loss by reason of his death, was set aside, as leaving it uncertain whether it traversed the loss only, or both the relationship and the loss. On the other hand, where to a count for goods, &c., supplied to A. B. at the defendant's request, a traverse was pleaded that "no goods were supplied to A. B. at the defendant's request" the defence was held not to be double (Crassan v. Johnston, 8 Ir. C. L. R. Ap. 46); and for a traverse to a count for interest, see Kelly v. Duffy, 7 Ir. C. L. R. 36. A traverse of an allegation contained in a previous pleading may, however, be double, though the traverse be in the words of the previous allegation. Thus, a defence to an action of libel that the defendant did not falsely or maliciously publish the words complained of, is double (Powell v. Brien, 6 Ir. Jur. Ö. S. 278); and where, to a count alleging that the defendant, maliciously and without reasonable or probable cause, assaulted the plaintiff, and caused him to be imprisoned, a defence alleging that the defendant did not maliciously, or without reasonable and probable cause, assault the plaintiff, or cause him to be imprisoned, was set aside by the Court of Exchequer as double (Brennan v. Williams, Ir. C. L. R. Ap. 35, Pigot, C. B., dissentiente); and the decision was followed in Smith v. Whelan, 10 Ir. C. L. R. Ap. 17; with which compare Darcey v. Cahill, 6 Ir. C. L. R. 121. As to the form of the defence in such a case, see Seymour v. Crooks, 1 Ir. L. T. 192. And as to setting aside a plaint containing such an allegation, see Harrington v. Murphy. 3 Ir. L. T. 407 ; Allen Prolixity. v. M' Coombe, 8 Ir. Jur. N. S. 310. On the same principle, a defence to an Argumenta tiveness. Pleadings may be set aside under the section for prolixity, as in (Moynehan v. Barry, 9 Ir. Jur. N. S. 176), where matter of evidence was stated by way of inducement. So also, where the plaint contained several counts which unnecessarily varied the cause of action, it was ordered to be amended (Carson v. Lindsay, Q. B. T. T. 1870); and as a general rule untraversable averments should not be introduced into plaints, or other pleadings (Clinton v. Henderson, 13 Ir. C. L. R., Ap. 43). When one of the paragraphs of the defence is applicable to several counts in the plaint it should not be unnecessarily repeated, but pleaded distributively to the counts to which it is applicable (Montgomery v. Middleton, 7 Ir. Jur. N. S. 30). A defence containing a short abstract of title, in an action for slander of title, will not be set aside as embarrassing (Crean v. Gamble, 7 Ir. Jur. N. S. 31). Defences may also be set aside as frivolous or immaterial; and if the defendant in such cases has no defence upon the merits leave will be given to the plaintiff to mark judgment (Loughran v. Hill, 6 Ir. C. L. R. 385; Bradbury v. Emans, 5 M. & W. 595; Knowles v. Burward, 10 A. & E. 19; Codd v. Smith, 2 Ir. L. T. 211). An embarrassing defence will be set aside on motion even though it would be held bad on demurrer (Loughran v. Hill, ubi supra; Early v. Smith, Ir. C. L. R. 397). When a pleading is not open to objection upon any of the grounds just enumerated it will not be set aside merely on the ground of argumentativeness; and in point of fact where the plaint is framed upon a special contract, the terms of which are not fully set forth in the plaint, the more proper course for a defendant to adopt, who has a defence founded on the term not set forth, is not merely to traverse the making of the agreement relied upon, but, in addition, to plead a further defence, setting forth the additional terms by which the contract is qualified, and which the plaintiff has omitted to state, and then plead any matter by way of confession and avoidance, founded on the terms so introduced which furnishes an answer to the action (Kenyon v. Tayleur, 8 Ir. C. L. R., Ap. 76). In that case, the action being for breach of a contract to deliver coals, the defendant pleaded a special defence, in which he set forth an additional term by which the contract was qualified, and which the plaintiff had omitted to state, and then averred that upon breach by the plaintiff of the contract so qualified he had, as he lawfully might, rescinded the contract, and the Court refused to set aside the defence as argumentative; and the same principle was adopted in Habgood v. Paul, 8 Ir. C. L. R., Ap. 23; and Denniston v. Digan, 10 Ir. C. L. R., Ap. 7. In Kingsley v. Hackett, 8 Ir. Jur. N. S. 152, the Court of Exchequer expressed its dissent from the principle of Kenyon v. Tayleur, but considered itself bound by it as an authority. On the same principle as that adopted in Kenyon v. Tayleur, the Court will not set aside a pleading where it is open to the opposite party to demur or plead, and no embarrassment can arise in case he adopts either course (Glynn v. Dillon, 8 Ir. C. L. R., Ap. 71; Fitzgerald v. Rowan, 6 Ir. Jur. O. S. 281). A defendant, however, to an action for libel or slander who seeks to plead a plea of justification or of privilege, must justify or excuse the words mentioned in the summons and plaint, and must do so in the meaning put upon them by the innuendo, and a defence which justifies or excuses words different from them in the plaint, or which justifies or excuses them in a meaning different from that in the innuendo, will be bad upon demurrer (Custis v. Sandford, 4 Ir. C. L. R. 426; Dunne v. O'Grady, 5 Ir. C. L. R. 450). So also when a defendant sets forth in his defence a contract different from that relied upon in the plaint, and admits a breach of it, he cannot pay money into Court under the 75th section of the Act (The Duke of Bedford v. Lord Oranmore, 8 Ir. Jur. N. S. 151; Byrne v. The Magnetic Telegraph Co., 4 Ir. C. L. R. 94). When a defendant traverses an allegation in the summons and plaint he should, as a general rule, traverse it in the manner in which it is alleged, and the defendant cannot object to a defence containing such a traverse, provided the allegation be not in its nature double, as to which see supra; or the traverse does not amount to the general issue, as to which see also supra. Thus in actions of ejectment for non-payment of rent, where the plaint is in the form contained in the schedule to the Act, a defence alleging that the defendant does not hold the lands as tenant to the plaintiff will not be set aside as embarrassing for not alleging that neither the defendant nor any other person holds the lands as tenant to the plaintiff (Keene v. M'Blaine 17 Ir. C. L. R. 654). The form of the defence in such an action has been discussed in several cases. See Figgis v. Hickey, 7 Ir. Jur. O. S. 160; Murphy v. Carey, 12 Ir. C. L. R., Ap. 9; Dillon v. Mangan, 1 Ir. Jur. N. S. 335; Bell v. Beatty, 6 Ir. C. L. R. 399; Gore v. M'Cullagh, 2 Ir. Jur. N. S. 493; Dexter v. Lloyd, 10 Ir. Jur. N. S. 116; Elgee v. O'Hare, 3 Ir. L. T. 468. In As instances of cases where defences have been set aside, on the grounds of not traversing an allegation in the words of the allegation, see Byers v. Beattie, Ir. R. 1 C. L. 209; Lysaght v. Lee, 8 Ir. Jur. N. S. 112; Craig v. Faloon, 4 Ir. Jur. N. S. 202; Duffy v. Rooney, 6 Ir. Jur. N. S. 20. the latter case, an action having been brought against two joint makers of a promissory note, a defence by one of the defendants that "he" did not make the note was set aside. A traverse should not on the one hand be too narrow, nor on the other hand too large, as, for instance, by being taken in the conjunctive instead of the disjunctive, nor should it be taken on an im Traversing an allega tion in the words in which it is alleged. |