any such case, if they or he shall think fit, order the costs of the application to be paid as between solicitor and client."

Notwithstanding the express use of the word “ unnecessary" in the above rule, it would seem that unnecessary statements, where they do not tend to prejudice or embarrass, &c., and do not materially increase the length of the pleadings, will not in general be struck out merely on the ground that they are unnecessary.' (See Knowles v. Roberts, 38 Ch. D. 263, 270; and Rock v. Purssell, 84 L. T. Journ. p. 45.)

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Matter containing charges and imputations not properly relevant to the issues between the parties will be struck out as scandalous. (Cashin v. Cradock, 3 Ch. D. 376; see Christie v. Christie, L. R. 8 Ch. 499; 42 L. J. Ch. 544; Coyle v. Cumming, 27 W. R. 529; Bright v. Marner, W. N. 1878, p. 211; Blake v. Albion Ins. Assoc., 45 L. J. C. P. 663; Duncan v. Vereker, W. N. 1876, p. 64; Lee v. Ashwin, 1 Times Rep. 291; Smith v. The British, &c. Assoc., W. N. 1883, p. 232; Brooking v.Maudslay, 2 Times Rep. 827; and see also Cracknall v. Janson, 11 Ch. D. 1, 13; 48 L. J. Ch. 168.)

But allegations of disgraceful facts, if relevant and material to the issues between the parties, are not “scandalous" within the meaning of the rule, and will not be struck out. (Millington v. Loring, 6 Q. B. D. 190; 50 L. J. Q. B. 214; Lumb v. Beaumont, 49 L. T. 772; Appleby v. Franklin, 17 Q. B. D. 93; 55 L. J. Q. B. 129; and see Cashin v. Cradock, supra; and Christie v. Christie, supra.)

Pleadings, or parts of pleadings, have been struck out or amended as embarrassing, &c., in the following cases (most of which were decided under the repealed O. XXVII. r. 1), viz., for pleading mere general allegations of title, instead of stating the material facts relied upon as giving the title (Philipps v. Philipps, 4 Q. B. D. 127; 48 L. J. Q. B. 185; Davis v. James, 26 Ch. D. 778; 53 L. J. Ch. 523; " Recovery of Land,' post, p. 495; and see Harris v. Jenkins, 22 Ch. D. 481; 52 L. J. Ch. 437; In re Parton, 30 W. R. 287; Palmer v. Palmer, (1892) 1 Q. B. 319; 61 L. J. Q. B. 236); for pleading matters which are too vaguely stated to give sufficient information to the opposite party (Harris v. Jenkins, supra; Riddell v. Strathmore, 3 Times Rep. 329; 31 Sol. Journ. 183; British, &c. Land Assoc. v. Foster, 4 Times Rep. 574; and see Fleming v. Dollar, 23 Q. B. D. 388; 58 L. J. Q. B. 548; Hildidge v. O'Farrell, 8 L. R. Ir. 158; Barnes v. Barnes, Ib. 165); for setting out immaterial matters in a prolix and embarrassing manner (Knowles v. Roberts, supra ; Davy v. Garrett, 7 Ch. D. 473; 46 L. J. Ch. 218); for setting out matters embarrassing and not relevant to the issue (Rassam v. Budge, (1893) 1 Q. B. 571; 62 L. J. Q. B. 312); for making allegations of matter merely amounting to evidence, as admissions, &c. (see Davy v. Garrett, supra; Blake v. Albion Ins. Assoc., supra; Williamson v. L. & N. W. Ry. Co., 12 Ch. D. 787; 49 L. J. Ch. 559; see Lumb v. Beaumont, supra; and see ante, p. 7); for a misjoinder of plaintiffs or of causes of action (Smith v. Richardson, 4 C. P. D. 112; 48 L. J. C. P. 140; see " Parties to Actions," post, p. 19); for pleading mere general or evasive denials (Copley v. Jackson, W. N. 1884, p. 39; Byrd v. Nunn, 7 Ch. D. 284; 47 L. J. Ch. 1; Belt v. Lawes, 51 L. J. Q. B. 259; see "Denials," post, p. 549); for pleading as defences matters obviously not amounting to any defence (Smith v. British, &c. Assoc., W. N. 1883, p. 24; Liardet v. Hammond, W. N. 1883, p. 96); or matters not pleadable by way of defence (Preston v. Lamont, 1 Ex. D. 361; 45 L. J. Ex. 797). But the mere fact that the statements in an opponent's pleading may be difficult to deal with does not render the pleading embarrassing, &c.," within the meaning of this rule if they

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are material facts and are otherwise properly pleaded. See as to statements of claim, Millington v. Loring, cited ante, p. 8; and as to defences, Heugh v. Chamberlain, 25 W. R. 743; Golding v. Wharton Salt Co., 1 Q. B. D. 374; Weymouth v. Rich, 1 Times Rep. 609; Tomkinson v. S. E. Ry. Co., W. N. 1887, p. 174; 3 Times Rep. 822; In re Morgan, 35 Ch. D. 492; 56 L. J. Ch. 903. Allegations are not to be deemed "embarrassing," &c., merely because it is probable that they may ultimately turn out to be untrue in fact (Turquand v. Fearon, 40 L. T. 543; In re Morgan, supra; and see Hildidge v. O'Farrell, 8 L. R. Ir. 158), or invalid in law (Tomkinson v. S. E. Ry. Co., supra). A party is in general entitled to set up several inconsistent claims, defences or replies, and to do so is not embarrassing, provided he pleads them clearly and distinctly. (In re Morgan, supra; Hall v. Eve, 4 Ch. D. 341; 46 L. J. Ch. 145.)

Applications under this rule should be made in the first instance by summons to a Master at Chambers. (See O. LIV. r. 12; Marriott v. Marriott, 26 W. R. 416.)

Where the matter which is wrongly or improperly pleaded is severable from the rest of the pleading, the order will usually be limited to that part of the pleading (see, for instance, Blake v. Albion Life Ass. Co., 45 L. J. C. P. 663; Smith v. British Marine Ins. Assoc., W. N. 1883, p. 24; Liardet v. Hammond, W. N. 1883, p. 96; Knowles v. Roberts, 38 Ch. D. 263); but where the matter which is faulty or defective is so intermixed with the rest of the pleading as not to be severable from it without difficulty, the whole of the pleading containing it may be struck out (see, for instance, Cashin v. Cradock, 3 Ch. D. 376; Davy v. Garrett, 7 Ch. D. 473; 47 L. J. Ch. 218; Williamson v. L. & N. W. Ry. Co., 12 Ch. D. 787; 49 L. J. Ch. 559).

Counterclaims which are such as ought not to be allowed, or which cannot be conveniently disposed of in the pending action, may be excluded. (See O. XIX. r. 3; 0. XXI. r. 15; “ Counterclaims," post, pp. 571, 573.)

Where a pleading offends against the requirements of the rules, and the objection is a substantial one, the opposite party may apply to have it struck out or amended under O. XIX. r. 27, above cited (if it comes within the terms of that rule), or to have it set aside under O. LXX. r. 1, of the R. S. C. 1883, which provides that, "Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside, either wholly or in part, as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or judge shall think fit." (See ante, p. 11.)

Where the objection is not merely that the pleading is improper or defective in form, but that it discloses no reasonable ground of action or defence, or that the alleged ground of action or defence stated therein is frivolous or vexatious, the opposite party may make an application under O. XXV. r. 4. (See" Proceedings in lieu of Demurrer," post, p. 601.)

Independently of the powers given by O. XIX. r. 27 (cited supra, p. 11), and by O. LXX. r. 1 (cited supra), and O. XXV. r. 4 (cited post, p. 601), the Court has inherent power to strike out or set aside any proceedings which from scandalousness or prolixity, &c., are vexatious or oppressive (see In re Miller, 51 L. T. 853; Cracknall v. Janson, 11 Ch. D. 1, 13; 48 Ì. J. Ch. 168; Willis v. Earl Beauchamp, 11 P. D. 59; 55 L. J. P. 17; Peru v. Peruvian Guano Co., 36 Ch. D. 489; Lawrance v. Lord Norreys, 39 Ch. D. 213; Davey v. Bentinck, (1893) 1 Q. B. 185; 62 L. J. Q. B. 114; Chaffers v. Goldsmid, (1894) 1 Q. B. 186; 63 L. J. Q. B. 59); or which are an abuse of the process of the Court (Met. Bank v. Pooley, 10 App. Cas.

210; 54 L. J. Q. B. 449; Reichel v. Magrath, 14 App. Cas. 665; 59 L. J. Q. B. 159).

As to amendment of pleadings by or at the instance of the party pleading them, see Amendment of Pleadings," infra.

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As to amendments with respect to parties, see joinder of Parties," post, p. 26.

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Misjoinder and NonAs to rules specially applicable to Defences, Replies and Counterclaims, see post, pp. 545, 561, 571.

Signature of pleadings.]-By O. XIX. r. 4, it is provided (inter alia) that "Signature of counsel shall not be necessary; but where pleadings have been settled by counsel or a special pleader, they shall be signed by him; and if not so settled, they shall be signed by the solicitor, or by the party if he sues or defends in person."

Pleadings, when to be printed, &c.]-By O. XIX. r. 9, "Every pleading which shall contain less than ten folios (every figure being counted as one word) may be either printed or written, or partly printed and partly written, and every other pleading"" shall be printed."

A folio consists of seventy-two words, every figure being counted as one word. (See O. LXV. r. 27 (14).)

As to the mode of printing and the delivery of copies, &c., see O. LXVI.

r. 7.

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Delivery of pleadings.]—By O. XIX. r. 11, "Every pleading shall be delivered between parties" (see ante, p. 6; and see O. XIX. r. 2, cited post, p. 44); and by O. XIX. r. 10, Every pleading or other document required to be delivered to a party, or between parties, shall be delivered in the manner now in use to the solicitor of every party who appears by a solicitor, or to the party if he does not appear by a solicitor, but if no appearance has been entered for any party, then such pleading or document shall be delivered by being filed with the proper officer." The mode of delivery (or "service") of pleadings which is "now in use (except as to statements of claim specially indorsed, as to which see Special Indorsements," post, p. 78) is prescribed by O. LXVII. r. 2. Where no appearance has been entered for a party, or where a party, or his solicitor, as the case may be, has omitted to give an address for service as required by Orders IV. and XII., pleadings may be served by filing them with the proper officer. (O. LXVII. r. 4.)

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Amendment of pleadings.]-By O. XXVIII. r. 1, "The Court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

By O. XXVIII. r. 2, "The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once, at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared." The "time limited for reply" to a defence, or to a defence with a counterclaim, is, by O. XXIII. r. 1, twenty-one days after the delivery of the defence or of the last of the defences, unless the time is extended by an order. (See O. XXIII. r. 1, cited post, p. 563; Rumley v. Winn, 22 Q. B. D. 205; 58 L. J. Q. B. 128; and see "Time for delivering Pleadings," post, p. 17.)

see Special Indorse

As to statements of claim indorsed on the writ, 66 ments," post, p. 77.

By 0. XXVIII. r. 3, "A defendant who has set up any counterclaim or set-off may, without any leave, amend such counterclaim or set-off at any time before the expiration of the time allowed him for answering the reply and before such answer, or in case there be no reply, then at any time before the expiration of twenty-eight days from defence."

The time for answering the reply, in the absence of an order extending the time, is four days. (See O. XXIII. r. 3, cited post, p. 563; and see "Time for Delivering Pleadings," post, p. 17.)

By O. XXVIII. r. 13, "The costs of and occasioned by any amendment made pursuant to Rules 2 and 3 of this Order shall be borne by the party making the same, unless the Court or a judge shall otherwise order."

By O. XXVIII. r. 4, "Where any party has amended his pleading under" rr. 2 or 3, above cited, "the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court or a judge to disallow the amendment, or any part thereof, and the Court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may be just." (Bourne v. Coulter, 53 L. J. Ch. 699.)

By O. XXVIII. r. 5, "Where any party has amended his pleading under Rules 2 or 3, the opposite party shall plead to the amended pleading, or amend his pleading, within the time he then has to plead or within eight days from the delivery of the amendment, whichever shall last expire; and in case the opposite party has pleaded before the delivery of the amendment, and does not plead again or amend within the time above mentioned, he shall be deemed to rely on his original pleading in answer to such amendment."

Under Rules 2, 3 and 5, above cited, a plaintiff may without leave amend his statement of claim once within the time prescribed by r. 2, and a defendant who has pleaded a counterclaim may without leave amend his counterclaim once within the time prescribed by r. 3, and where a statement of claim or counterclaim has been so amended, the opposite party, if he has already pleaded, may amend his pleading without leave within the time prescribed by r. 5. In all other cases, if an amendment is required, leave must be obtained for it.

By O. XXVIII. r. 6, "In all cases not provided for by the preceding Rules of this Order, application for leave to amend may be made by either party to the Court or a judge or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." As to the general power of amending defects or errors in any proceedings, see O. XXVIII. r. 12.

Applications to amend pleadings before trial should be made to a master by summons at chambers. (See O. LIV. r. 12.)

In any case of bona fide mistake, leave will in general be granted to amend so as to enable the real question in dispute between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite party, except such as can be sufficiently compensated for or remedied by costs or other terms to be imposed by the order. (Tildesley v. Harper, 10 Ch. D. 393; 48 L. J. Ch. 495; Steward v. North Met. Tram. Co., 16 Q. B. D. 178, 566; 55 L. J. Q. B. 157; Clarapede v. Commercial Assoc., 32 W. R. 262; Australian Steam Co. v. Smith, 14 App. Cas. at p. 320.) Where these conditions are fulfilled, such leave may be granted at any stage, however negligent or careless the mistake or omission may have been, and however late may be the application for amendment. (See per Brett, M. R., in Clarapede v. Commercial Assoc.,

supra; Steward v. North Met. Tram. Co., 16 Q. B. D. at p. 558; 55 L. J. Q. B. 157; The Duke of Buccleuch, (1892) P. 201; 61 L. J. P. 57.) But such applications, when required, should be made without unnecessary delay, as the fact of unreasonable delay in making the application may in some cases be a ground against its being granted. (Clarapede v. Commercial Assoc., 32 W. R. 262, 263; Hipgrave v. Case, 28 Ch. D. 356; 54 L. J. Ch. 399; Clark v. Wray, 31 Ch. D. 68; 55 L. J. Ch. 119.) Leave to amend may be refused where the original omission was mala fide or intentional (Tildesley v. Harper, supra; Lowther v. Heaver, 41 Ch. D. 248; 58 L. J. Ch. 482; Edevain v. Cohen, 41 Ch. D. 563), or where at the trial or hearing the party seeks to alter the whole nature of his case by an unexpected amendment which may require further evidence to be adduced by his opponent (Ellis v. Manchester Carriage Co., 2 C. P. D. 13, 16; Newby v. Sharpe, 8 Ch. D. 393; 47 L. J. Ch. 617; Bourne v. Coulter, supra; Hipgrave v. Case, 28 Ch. D. 356; 54 L. J. Ch. 399; Clark v. Wray, 31 Ch. D. 68; 55 L. J. Ch. 119; Edevain v. Cohen, supra), or where it is clear that there is no substantial ground for the case proposed to be set up by the amendment (Lawrance v. Lord Norreys, 39 Ch. D. 213, 232, 235), or where the amendment would cause injustice to the opposite party such as could not be compensated for by imposing terms as to costs or otherwise (Steward v. North Met. Tram. Co., supra; Weldon v. Neal, 19 Q. B. D. 394; 56 L. J. Q. B. 621).

As to the principles on which leave to amend pleadings will be granted or refused, see further, Laird v. Briggs, 19 Ch. D. 22; Kurtz v. Spence, 36 Ch. D. 770; Riding v. Hawkins, 14 P. D. 56; 58 L. J. P. 48; Hendricks v. Montague, 50 L. J. Ch. 257, 260.

0. XXVIII. r. 5, above cited, only applies to cases where a statement of claim or counterclaim has been amended without leave under O. XXVIII. rr. 2 or 3, and, therefore, where the statement of claim is amended under an order giving leave to amend, such amendment does not, in the absence of special terms in the order, give the defendant any additional time for pleading his defence or entitle him to amend a defence already delivered. Accordingly, when an application is made for leave to amend, care should be taken by the opposite party to have it imposed as a term of the order, if any, giving such leave, that any alteration or amendment of his own pleading (if any) already delivered which may be necessitated by the amendment of the opponent's pleading may be made by him, otherwise a summons for leave to make such amendments or alterations may be necessary. So, too, care should be taken that the order should provide, where necessary, for an extension of the time for pleading to the amended pleading, and, where the party amending is a defendant, for his taking short notice of trial, if required.

Where a party amends his pleading under an order giving leave to amend, and the opposite party, having already pleaded in answer to the original pleading before such amendment, does not himself obtain leave to amend, and amend thereunder, he is deemed to rely on his pleading as it stands as an answer to the amended pleading. (See Boddy v. Wall, 7 Ch. D. 164; 47 L. J. Ch. 112.)

By O. XXVIII. r. 7, "If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge."