of the claim, or, of the fraud alleged in paragraph defence, or, as the case may be].

of the

[Here state the particulars, and if they are given in pursuance of an order they should be preceded by a statement to that effect, e. g., The following are the particulars delivered pursuant to the order of Master made in this action dated 18-.]

Dated this

day of, 18-.

Yours, &c.,

E. F., Plaintiff's Solicitor [or, Agent].

To Mr. G. H., Defendant's Solicitor [or, Agent].

(a) Particulars.]—"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms," i. e., the forms given in Appendices C., D., and E. to the Rules of the Supreme Court, 1883, "particulars (with dates and items, if necessary) shall be stated in the pleading; provided that, if the particulars be of debt, expenses, or damages, and exceed three folios, the fact must be so stated, with a reference to full particulars already delivered or to be delivered with the pleading." (O. XIX. r. 6.) A folio is seventy-two words, every figure being counted as a word. (0. LXV. r. 27 (14).)

Examples of the particulars required to be stated in the instances expressly named in O. XIX. r. 6 (supra), will be found in R. S. C., 1883, App. C., Sect IV., Nos. 2, 9; Sect. VI., No. 13; App. D., Sect. IV. (12), and of other cases where particulars are necessary instances will be found R. S. C., 1883, Apps. C., D., E., pussim.

The objects of particulars are, to prevent surprise at the trial by informing the opposite party what the case is which he has to meet, to explain and limit pleadings which are vague or require limitation, and, generally, to define and narrow the issues to be tried and so save unnecessary expense. (Spedding v. Fitzpatrick, 38 Ch. D. 410, 413; 58 L. J. Ch. 139; Saunders v. Jones, 7 Ch. D. 435, 451; 47 L. J. Ch. 440; Sachs v. Speilman, 37 Ch. D. 295, 305; 57 L. J. Ch. 658; Newport Docks, &c. Co. v. Paynter, 34 Ch. D. 88; 56 L. J. Ch. 1021; Hennessy v. Wright, 57 L. J. Q. B. 594; Yorkshire Prov. Co. v. Gilbert, (1895) 2 Q. B. 148; 64 L. J. Q. B. 578.)

By O. XIX. r. 7, “A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars, may, in all cases, be ordered, upon such terms, as to costs and otherwise, as may be just."

Particulars will usually be ordered of pleadings or of any material allegations in pleadings which are too general, or with which an opponent cannot fairly deal without further or more specific information. (See cases cited supra, and Godden v. Corsten, 5 C. P. D. 17; 49 L. J. C. P. 112; Humphries v. Taylor Drug Co., 39 Ch. D. 693, 695; The Rory, 7 P. D. 117, 121; 51 L. J. P. 73; Philipps v. Philipps, 4 Q. B. D. 127, 130; 48 L. J. Q. B. 135.) Where there are no particulars, anything may be proved which is within the scope of the pleadings; therefore, it is frequently advisable, where general allegations are made in the pleadings,

to apply for particulars of such allegations. (See per Brett, L. J., in The Rory, supra.) If the particulars, whether stated in the pleadings, or delivered separately, are not sufficiently specific, an application for further and better particulars should be made. (See, for instance, Newport Slipway, &c. Co. v. Paynter, 34 Ch. D. 88; 56 L. J. Ch. 1021.)

Where the party pleading is unable to give particulars of his allegations without previously inspecting his opponent's books, or documents, or obtaining discovery from his opponent by interrogatories, an application for particulars may be adjourned till after such inspection or discovery, or the order may be made to take effect thereafter. (Philipps v. Philipps, 4 Q. B. D. at p. 131; Leitch v. Abbott, 31 Ch. D. 374; 55 L. J. Ch. 460; Owen v. Morgan, 35 Ch. D. 492; Sachs v. Speilman, supra; Miller v. Harper, 38 Ch. D. 110; 57 L. J. Ch. 1091; Waynes Co. v. Radford, (1896) 1 Ch. 29.)

Where a charge of fraud or misconduct is made, it is specially necessary that definite particulars should be given in order to afford a proper opportunity for making a defence. (Whyte v. Ahrens, 26 Ch. D. 717; 54 L. J. Ch. 145; Saunders v. Jones, supra; Symonds v. City Bank, 34 W. R. 364.)

Where a dismissal of a servant or agent is justified on the ground of misconduct, the party so justifying must give definite particulars of the misconduct charged. (Saunders v. Jones, supra.) Where it was alleged in a statement of claim that the defendants had made false entries in the plaintiff's books for the purpose of defrauding the plaintiffs, the particulars were ordered to be given, showing the nature of the impropriety, falsehood, or fraud alleged with regard to each item complained of. (Newport Slipway, &c. Co. v. Paynter, 34 Ch. D. 88; 56 L. J. Ch. 1021.) Similarly, where a libel or slander is justified in general terms, particulars will be ordered of the justification. (Jones v. Bewicke, L. R. 5 C. P. 32; Gourley v. Plimsoll, L. R. 8 C. P. 362; 42 L. J. C. P. 121; Hennessy v. Wright, 57 L. J. Q. B. 594; Zierenberg v. Labouchere, (1893) 2 Q. B. 183; 63 L. J. Q. B. 89.)

Particulars of negligence are frequently ordered to be delivered when a statement of claim charging negligence does not specially point out the particular negligence, or acts of negligence, complained of; or where the statement of claim, after alleging specific acts of negligence, also charges negligence in general terms. So, too, particulars will be ordered to be given where the damage alleged is not alleged with sufficient particularity. (Brindley v. G. N. Ry. Co., Notes of Cases, 1878, p. 57; R. S. C., 1883, App. K., No. 13; Watson v. North Met. Tramways Co., 3 Times Rep. 273.)

In actions for defamatory statements made to third persons not named in the statement of claim, the party alleging and complaining of such statements may be ordered to furnish particulars giving the names of such third persons. (Roselle v. Buchanan, 16 Q. B. D. 656; 55 L. J. Q. B. 376; Bradbury v. Cooper, 12 Q. B. D. 94; 52 L. J. Q. B. 558.) But whether such an order is requisite or not would seem to be a matter for the exercise of judicial discretion in each case. (See Gouraud v. Fitzgerald, 37 W. R. 265, where a refusal to grant such an order was upheld as a not improper exercise of judicial discretion.)

Where the statement of claim, in an action to restrain infringement of a trade mark, alleged that divers persons" had been induced by the acts of the defendant to purchase his goods as and for those of the plaintiff, particulars of the names and addresses of those "divers persons ordered. (Humphries v. Taylor Drug Co., 39 Ch. D. 693.)

were

By O. XX. r. 8, "In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars." (See post, p. 85.)

Where a plaintiff claims merely to have a general account taken, he need not give particulars as to items. (Augustinus v. Nerinckx, 16 Ch. D. 13; 43 L. T. 458; Blackie v. Osmaston, 28 Ch. D. 119; 54 L. J. Ch. 473.) The mere asking for an account will not prevent particulars being ordered, though where the Court sees that an account must be taken particulars will not be ordered. (Kemp v. Goldberg, 36 Ch. D. 505.) Where the plaintiff claims a lump sum of money, he must give particulars as to the items of which it is composed. (Ib.; and see Philipps v. Philipps, 4 Q. B. D. at p. 131; 48 L. J. Q. B. 135.)

By O. XXXVI. r. 37, "In actions for libel or slander, in which the defendant does not, by his defence, assert the truth of the statement complained of, the defendant shall not be entitled on the trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the judge, unless seven days at least before the trial he furnishes particulars to the plaintiff of the matters as to which he intends to give evidence."

Where there are several heads of claim, and there is in the defence a denial of liability, and also a payment into Court to the whole claim, particulars are, where requisite, ordered to be given, specifying the heads of claim in respect of which the payment is intended to be made. (Rowe v. Kelly, W. N. 1888, 141; 59 L. T. 139; Orient Steam Nav. Co. v. Ocean Marine Ins. Co., 34 W. R. 442.)

Where lump sums are credited in a pleading, particulars may be ordered of the items composing such sums. (See Godden v. Corsten, 5 C. P. D. 17; 49 L. J. C. P. 112.)

It is optional with the plaintiff to give credits for payments or matters of set-off in his particulars. (Randall v. Ikey, 4 Dowl. 682; Penprase v. Crease, 1 M. & W. 36; Luck v. Handley, 4 Ex. 486; 19 L. J. Ex. 29; Fussell v. Gordon, 13 C. B. 847.)

Where credits are given in the particulars, the plaintiff is considered as suing only for the balance claimed (Russell v. Bell, 10 M. & W. 352); so that if he proves no balance beyond what is credited, the defendant is entitled to a verdict (Smethurst v. Taylor, 12 M. & W. 545). The defence of payment or set-off, when pleaded, is taken with reference to the balance claimed in the particulars (Eastwick v. Harman, 6 M. & W. 13); the proof under it must be of items other than those credited. The items proved would be prima facie applicable to the balance, and it lies upon the plaintiff to show that they are identical with those already credited. (Townson v. Jackson, 13 M. & W. 374; Lamb v. Micklethwait, 1 Q. B. 400.)

Where the writ bears only a general indorsement, any particulars therein specified are superseded by those contained in a statement of claim subsequently delivered. (See O. XX. r. 4, cited post, p. 56.)

Where a party who has delivered particulars under an order afterwards desires to amend them or to deliver further particulars, he may obtain an order giving him leave to do so, where such an order can be made without injustice to the other side. (Clarapede v. Commercial Union Association, 32 W. R. 262; Chitty's Practice, 14th ed., p. 386.) See also "Amendment of Pleadings," ante, p. 14.

If particulars are delivered without leave for the purpose of superseding

1

or supplementing particulars which have been previously given separately from the pleadings, they are irregular, and may accordingly be set aside on application under O. LXX. (Yorkshire Provident Co. v. Gilbert, (1895) 2 Q. B. 148, 153; 64 L. J. Q. B. 578.)

But if such particulars are accepted by the opposite party they will supersede or supplement the original particulars, the irregularity being one that is waived by receiving the fresh particulars and continuing the proceedings in the action without making such application. (See Fromant v. Ashley, 1 E. & B. 723; Jones v. Fowler, 4 Dowl. 232.) If fair and proper particulars have been delivered without leave, an application to have them set aside could rarely be attended with any material advantage, as, on application under such circumstances, an order would probably be made that the fresh particulars should stand.

There are certain actions with regard to which it has been enacted by various statutes, or directed by various rules, that particulars should be delivered with the declaration, or the pleas, as the case may be; as, for example, it is enacted by s. of Lord Campbell's Act (9 & 10 Vict. c. 93), as to actions under that Act, that, "in every such action the plaintiff shall be required, together with the declaration, to deliver to the defendant or his attorney a full particular of the person or persons for whom and on whose behalf such action shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered." (See R. S. C. 1883, App. C., Sect. VI., No. 4. cited" Executors," post, p. 426; and see post, p. 428.)

For instances of other similar enactments, see "Copyright," post, p. 870; "Patents," post, p. 938.

By s. 33 (2) of the Judicature Act, 1875, all enactments inconsistent with the Judicature Acts were repealed, but by s. 21 of that Act existing forms and methods of procedure which are not inconsistent with the Judicature Acts or the rules thereunder were reserved. With regard to Acts prior to the Judicature Act, 1875, the question whether the sections relating to particulars are to be regarded as preserved by the latter section, or as repealed by the former, is in general unimportant, as where such Acts required particulars, particulars of a similar character will be found necessary under the present rules. (See R. S. C. 1883, App. C., Sect. VI., Nos. 4, 6, cited post, pp. 426, 488; and "Patents," post, p. 938.)

The practice would appear to be that particulars similar to those required by such statutes are in general ordered, though the precise form or mode of delivery imposed by the statute may not always be required. With regard to Acts passed subsequently to the Judicature Act, 1875, any provision contained in them as to particulars must be followed. (See Patents," post, pp. 493, 938.)

In general, a defendant who is entitled to particulars should apply for them before putting in his defence, but he does not necessarily waive his right to such particulars by delaying his application for them until after he has delivered his defence. (Sachs v. Speilman, 37 Ch. D. 295, 302; 57 L. J. Ch. 658.)

By O. XIX. r. 8, " The party at whose instance particulars have been delivered under a judge's order shall, unless the order otherwise provides, have the same length of time for pleading after the delivery of the particulars that he had at the return of the summons. Save as in this rule provided, an order for particulars shall not, unless the order otherwise provides, operate as a stay of proceedings, or give any extension of time." This order does not apply where there has been a previous "peremp

tory" order fixing the time within which the party subsequently obtaining the order for particulars was to plead not mentioned or referred to in the order for particulars. (Falck v. Axthelm, 24 Q. B. D. 174; 59 L. J. Q. B. 161.)

Particulars delivered separately from the pleadings do not for all purposes form part of the pleadings. (See, under the former practice, Jubb v. Ellis, 3 D. & L. 367; R. v. Mill, 10 C. B. 379.) But for the purpose of applications for judgment under O. XXVII. r. 11, and similar purposes, particulars are regarded as part of the pleadings. (United Telephone Co. v. Smith, 61 L. T. 617; 38 W. R. 70.) See further, "Defamation," post, p. 886; "Executors," post, p. 426; "Malicious Prosecution," post, p. 923.)