IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1^1 28 ■ 30 ™^~ 1^ lii 1^ l£ m m 1^ IL25 ill 1.4 1.8 1.6 C Sciences Corporation ^ V ^ ^.) Whether the Rules adopted for that purpose by the Supreme Court of Judicature Acts in Englaiul are such as, with any and what variations, may advantageously le adopted in this country ; and (c.) Whether it is expedient to have legislation on the subject without further delay^ or to postpone legislation until some and what future time. (Annexed is a copy of the English Rules with respect to the joinder of causes of action, and a c( py of ?o much of the English Rules with respect to pleading as show the principles which govern the new system.) 3rd. — As to Jur'es, whc'ther the Rule rcijuiring the unanimity of Juries in civil suits should be changed or modified ; and what yon would recommend in lieu. Your obedient Servant, * (). MOW AT. ^■ -t^^ii^:- /^^a»e<;?^i^^ ORDER XVII. Joinder of Causeh of Action. 1. Subject to the following Rules, the Plaintiff may unite in the same action and in the same statement of claim several causes of action ; but if it appear to the Court or a Jiidi,'o that any such causes of action cannot be conveniently tried or disposed of together, the Court or Judge may order separate trials of any of such causes of action to be had, or may make such other order as may be necessary or exiiedient for the separate disposal thereof. 2. No cause of action shall, unless by leave of the Coiu-t or a Judge, be joined with an action for the recovery of land, except claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for any breacli of contract luider which the same or any part thereof ai'e held. 3. Claims by a trustee in bankruptcy as such shall not, unless by leave of the Court or a Judge, be joined with any claim by hiiu in any other capacity. 4. Claims by or against husband and wife may be joined with claims by or against either of them separately. 5. Claims by or against an executor or .idiiiinis'ratcjr as such may be joined with claims by or againat him personally, provided the last-men- tioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor or administra- tor. 6. Claims by plaintiffs jointly may be joined with claims by them or any of them separately against the same defendant. 7 . The livst three preceding Rules shall be subject to Rule 1 of this Order, and to the Rulf-: hereinafter contained. 8. Any defendant alleging that the plaintiff' has imited in the same ac- tion several causes of action which cannot be conveniently disp sed of in one action, may at any time apply to tlie Court or a Judge for an order confining the action to such of the causes of action as may be conveniently disposed of in one proceeding. 9. If, on the hearing of such application as in the last preceding Rule mentioned, it shall appear to the Court or a Judge that the causes of action are such as cannot all be conveniently disposed of in one action, the Court or a Judge may order any of such causes of action to be excluded, and may direct the statement of claim, or, if no statement of claim has been delivered, the copy of the writ of summons, and the indorsement of claim on the writ of summons, to be amended accordingly, and may make such order as to costs as may be just. ORDER XIX. Pleading Gbnskally. 1. The following rules of pleading shall be substitutef' 'or those hereto- fore used in tlie High Court of Chancery and in the u-ts of Common Law, Ac. 2. Unless tlie defendant in an action at the time of his appearance shall state that he does not require tlie delivery of a statement of complaint, the plaintiff' shall, within sucli time and in such manner as hereinafter pre- scribed, deliver to the defendant after his ap| earance a statement of Uis complaint and of the relief or remedy to which he claims to be entitled. The defendant shall within such time and in such manner as hereinafter prescribed deliver to the plaii.tiff a statement of his defence, set-off, or counter-claim (if any), and the plaintiff shall in like manner deliver a statement of his reply (if any) to such defence, set-off, or counter-claim. Such statements shall be as brief as the nature of the case will admit, and the Court in adjusting the costs of the action shall inquire at the instance of any party into any unnecessary prolixity, and order the costs occasioned by such prolixity to be borne by the party chargeable with the same. 3. A defendant in an action may set off, or set up, by way of counter- claim against the claims of the plaintiff, any right or claim, whether such set-off" or counter-claim sound in damages or not, and such set-off or coun- ter-claim shall have the same effect as a statement of claim in a cross action. Bo m to enable the Court to pronounce a Bnal judgment in the same action, botli on the original and on the cross claim. But the Court or a Judge niay, on the application of the plaintiff before trial, if in the opinion of the Court or Judge such set-cjff or counter-claim cannot be conveniently disposed of in tlie pending action, or ought not to be allowed, refuse per- unssion to the defendant to avail himself thereof. 4. Every pleading shall contain as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by wliioli they are to be proved, such statement being divided into para- graphs, numbered consecutively, and each paragraph ccmtaining, m n sarly as may be, a separate allegation. Dates, sums, and numbers shall be expressed m figures and not in words. Signature of counsel shall not be necessary. 8. Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counter-claim made, or relief claimed by the defendant, in his statement of defence. If the plaintiffs claim be for discovery only, the statement of claim shall show it. 9. Where the jdaintiff seeks relief in respect of several distinct claims or causes of complaijit founded upon separate and distinct facts, they shall be stated, iw far as may be, separately and distinctly. And the same rule shall apply where the defendant relies upon several distinct grounds of defence, set-oft", or counter-claim founded upon separate and distinct facts. 10. Where any defendant seeks to rely upon any facts as supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically that he does so by way of set-off or counter-claim. 11. If either party wishes to deny the right of any other party to claim as executor or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically. 13. No plea or defence shall be pleaded in auatement. 14. No new iissignment shall hereafter be necessary or used. But every- thing which has heretofore been alleged by way of new assignment, may hereafter be introduced by amendment of the statement of claim. 16. No defenihmt in an action for the recovery of land who is in posses- sion by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable giouiid against any right or title asserted by the plaintifl". But, except in the cisetj hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession. And he may nevertheless rely upon any giound of defence which he can prove, except as hereinbe- fore mentioned. IG. Nothing in these Rules contained shall affect the right of any de- fendant to plead not guilf v by statute. And every defence of not guilty by statute shall have the .ime tfl'ect as a plea of not guilty by statute has heretofore had. But if the defendant so plead, he shall not plead any other defence without the leave of the Court or a Judge. 1( . Every allegation of fact in any pleading in an action, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition. 18. Each party in any pleading, not being a petition or summons, must allege all such facts not appearing in the previous pleadings as he means to rely on, and must raise all such gi-ounds of defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as, for instsince, fraud, or that any claim has been barred by the Statute of Limitations or has Leon released. 19. No pleading, not being a petition or summons, shall, except byway f>f amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. 20. It shall not be sufficient for a defendant in his defence to deny gene- rally the facts alleged by the statement of claim, or for a plaintifl" in his m: ) ^'■. t^ M^ iiAwM Voi)!y to iluiiy (^HiMjially tho fiicki nlle^od in a ilofeuca by wivy of oountor- claiiii, but uft^h purty must deal specifically with each alfegation of fact of which ho doflu lu>t adinit tfie truth. 21. Siibjedt to the lantpfocndiiiK Rule, tho plaintiff by his reply may join issue upon t'lo dofonci', luid eai;)i iiarty in his pleading, if any, snbieouent to replv, may join insue iiixm the pluvious |»leadinj{8. Such joinder of isRUf) Hiuill (^late iiMadHnialof every 'rnaterml allegatbn of fact in the pleading upon which issue is joined, but it may except any facts wliich tho party may be willins; to admit, and shall then operate as a denial of the facts not so admiltud. 22. When a party in any pleading denies an allegation of fact in tho previous pleadiiig of the opposite parry, ho unist not do so evasively, but answer tha point of suhafanc,!. Thus, if it bj alleged thiit lie receive d a oertuJn/Sum^Of money, it shall liot'bftsbifBeifcnt to den/tHa* lie received that paufcixjular jBiiMWt; bnt'hBJBiust djny tliat ho recai veil th it sum or atiV tHISrt « li li l l i f i i ii ilMigpiB&p iiiii i M ii M min of fact is alleged with divers oircmn.'itttncui, it shall ,ttot he suHicient to deny it as alle.;ed along with th ms oircumatancos, but a fhir and substantial answer nnist be niven. 23. When a ountnict is alleged in any pleading, a l«ire denial of the contnvct by the opposite jiarty. shall be c. Wheievor it is miterial to allege notice to any person of any fac matter, or thiui{, it shall be suffioie'iit to allegj sudi notice as a fact, nnles the form of the precise terms of such notice beinaterial. 27. Wharevor any c >ntr.ict of any relation betwjeii anv par-ionn do not arise fi-om an express agreement, but is to be implied from a series i leiter.s or conversations, or otherwise from a num'.ierof c rcumstances, t shall be sufficient to allege such contractor relation as a fact, and to rofi r generally to such letters, conversations, or circumstances wiihi)Ut Hottin them out in detail, .^nd if in such case the per.scm so pleadinc; desii to reply in the alternative upon more c mtracts or relations than one to be implied from such cii'c»iiiistance8, he may statu the siinie in the alte native. " ' 28. Neither party need in any pleading all 'g- any matttr of fnct which the law presumes in his favour, or, as to which the burden of proof lies upon '4h£jf}i:ec Bidiri^l^iyifjii^n^^ ■.:ji iM| — -"'. 'Mr i i claim .T"" : .4. , OUDETI^ XXIV. KePLV and SlTftSHQUENT PlEADI.VOS. 2. No pleading subsequent to reply other than i. joinder of issue shnll be pleaded witlumt leave of tho Court or a Judge, and then u|ion such terms as the Court or .ludge shall think fit. OUDERXXVI. Issues. Where in any action it appears to a .Iud','e that the statement of claim or defence or reply does not sutiicientiv define tlio issues of fat;t in dispute between the parties, he may direct the parties to prepare i.ssiies, and such issues shall, if tho parties dittt.r, lie settled by the .Tudso.