Causes of action in separate paragraphs.

A sealed writ cannot be altered without leave.

specify the irregularity, 179 G. O., 1854; and the motion should not be made until the writ is filed (O'Brien v. Taylor, 2 Ir. Jur. N. S. 53).

In addition to the indorsements spoken of above, the writ will in certain particular cases require to be specially indorsed. When issued under the Summary Procedure on Bills of Exchange Act, it must contain the notice directed by that Act. If the plaintiff claims a writ of injunction under the C. L. P. Act, 1856, sect. 81, it must be indorsed with the notice mentioned in sect. 82 of the Act. And see, as to the delivery of particulars with the plaint, sect. 11, note (q), post.

The writ should follow the form given in the schedule to the Act, with such changes as the circumstances of the case may require. As to the consequences of any error or omission in the plaint or the copy of it served, see post, sect. 16, and the notes thereto.

By the 34th G. O., 1854, each cause of action in a plaint should be commenced in a new paragraph; and therefore, where in a summons and plaint the money counts did not commence in a new paragraph, the plaint was ordered to be amended at the plaintiff's cost M'Anulty v. Nantes, 13 Ir. C. L. R. Ap. 40). See, however, Redmond v. Butler, 4 Ir. C. L. R. 287.

(f) When a writ of summons and plaint has been sealed, it cannot be altered without the leave of the Court (Freeman v. Kellett, 8 Ir. C. L. R. <2; 40 G. O. 1854). A mere misprision may, however, it would seem, be corrected without the order of the Court, provided the correction be made on the day the writ is issued; and, therefore, where a summons and plaint in ejectment was issued, the venue in the margin of which was incorrect, although the county in which the lands lay was correctly stated in the body of the plaint, and the mistake was corrected on the same day without the order of the Court, and the writ resealed, it was held that the correction without order did not vitiate the further proceedings in the action (Hanbury v. Jones, 15 Ir. C. L. R. 442). Where an alteration is made in a writ after When altered sealing, and before service, it must be resealed before it can be served (Cooper v. Kirby, Long. & Town. 677); unless the alteration has been made in pursuance of an order, or by leave of the Court or a Judge (Brown v. Fullerton, 13 M. & W. 557). But if the opposite party, after notice of the alteration, allows the proceedings to go on, he cannot afterwards move to set them aside (Freeman v. Kellett, ubi supra; Siggers v. Sanson, 2 Dowl. 745).

must be resealed.

Date from which amended

writ runs.

Residence

and description of parties to be mentioned

in writ.

(g) Notwithstanding the above enactment, when a writ is amended and resealed, the date need not be altered to make it correspond with the time of resealing (Gibson v. Vorley, 7 E. & B. 49; Lalor v. Bland, 8 Ir. C. L. R. 115). And where a writ was amended by substituting the real for the nominal defendant, it was ruled that the commencement of the action reckoned from the date of the writ and not from the amendment (Coombs v. Bristol & Exeter Railway Co., 1 F. & F. 206).

The Court has no power to antedate a writ, even to prevent the operation of the Statute of Limitations (Clark v. Smith, 2 H. & N. 753).

(h) The section does not obviate the necessity of giving notice of action in cases required by statute (sect. 19). So, also, if the action be brought against a magistrate, the writ may be set aside in cases falling within 12 Vict. c. 16, s. 7 (Lalor v. Bland, 8 Ir. C. L. R. 115).

9. In every such writ of summons and plaint, and copy thereof, the names of the plaintiff and defendant (i), the place of residence of the plaintiff, and the place of residence

15 & 16 Vict.

or supposed residence or last known residence of the defendant (j), and such designation or description of the parties respectively as the plaintiff or his attorney may be able to give (k) shall be mentioned, and such writ shall con- c. 76, s. 4 tain the naines of all the defendants, and shall not contain the name or names of any defendant or defendants in more actions than one.

(1) A misnomer was formerly ground for a plea in abatement, but now under 3 & 4 Vict. c. 105, s. 40, such a defence cannot be pleaded, and the defendant's course in such a case is to point out the misnomer by notice to the other side pursuant to sect. 84, post, and follow up such notice, if necessary, by an application to the Court. Unless, however, the misnomer is calculated to mislead, it would be considered as only a technical error under sect. 16, and the Court would refuse to set the writ aside (Dunne v. Gray, 6 Ir. Jur. O. S. 138). A misnomer, however, if not corrected, may cause considerable embarrassment after judgment has been entered up (Pattison v. M'Clatchy, 2 Law Rec. N. Š., 8; Williams v. Lowe, 6 Ir. Jur. O. S. 115).

If a party suffer judgment to be obtained against him by a wrong name, his goods may be taken in execution under a writ sued out against him by that name (Furlong v. Handcock, Hay. & Jon. 244).

By 3 & 4 Vict. c. 106, s. 41, in an action on a written instrument it is sufficient to designate the Christian names of any of the parties, by any contractions thereof used in the written instrument. See further on the subject of misnomer, Ch. Arch. Pr. 12th Ed. p. 167, and the notes to sect. 84, post.

() If the residence of the plaintiff or defendant be misdescribed, and the defendant, in consequence is misled or prejudiced-as, for instance, if the description in the summons and plaint represents the plaintiff and defendant as residing in different Civil Bill jurisdictions in cases falling within section 97 of the Common Law Procedure Act, 1856-the defendant may apply to have the writ set aside or amended (Adams v. O'Brien, 5 Ir. Jur. O. S. 40; Silk v. Armstrong, Ir. R. 2 C. L. 155, in which case the action was brought under the Summary Procedure on Bills of Exchange Act). The application to set the writ aside should be made within a reasonable time (Roche v. Wilson, 3 Ir. C. L. R. 252). In Curry v. Johnson, 2 Ir. C. L. R. 641, where the residence of the plaintiff was altogether omitted, the Court refused the plaintiff leave to amend.

As to what constitutes a residence, it would seem that the house in which a person resides with his family, and sleeps, and not the house at which he transacts his business, is his "residence" (Tom v. Nagle, 13 Ir. C. L. R. App. 38), with which compare Wright v. Brown, 1 Ir. L. T. 102. But it would also appear that an office or place of business is a "residence" within the meaning of sect. 97 of the C. L. P. Act, 1856. Thus in D'Arcy v. Hastings, 10 Ir. C. L. R. App. 24, where plaintiff had an office within the same Civil Bill jurisdiction as that in which the defendant resided, he was held not to be entitled to any costs, the action being one of contract, and the plaintiff having recovered less than £20. And see further as to the question of "residence," sect. 97 of the C. L. P. Act, 1856, post; and Moffatt v. M Ternan, 6 Ir. Jur. O. S. 177; Dawson v. Coleman, 15 Ir. C. L. R. 508.

Conse

quences of a

misnomer.

Judgment

per

obtained against son by a wrong name. Contraction of name when written instrument.

action on a

Consequence of misdescripsidence.

tion of re

What is a residence.

Where corporation is to be considered as residing.

Description

of parties.

Form of plaint.

Form of plaint.

Character in

which action brought to be stated.

How stated in actions brought by assignees.

A corporation is to be considered as residing where it carries on its business (Taylor v. Crowland Gas Co., 11 Ex. 1). Thus, a company formed for the manufacture and sale of goods dwells at the place of manufacture and sale, and not at the registered office of the company (Keynsham Blue Lias Lime Co. v. Baker, 2 H. & C. 729); and a railway company is to be deemed to dwell at the principal office, and not at every station on the line (Adams v. Great Western Railway Co., 6 H. & N. 404).

The defendant may, after judgment, show on the taxation of costs, that the residence of either the plaintiff or himself is incorrectly described (D'Arcy v. Hastings, 10 Ir. C. L. R. App. 24; Scott v. Bennett, Ir. R. 3 C. L. 217, 238, 240). As to how far the defendant is concluded, when final judgment has been signed for debt and costs, by the statement of his residence contained in the plaint, see M'Kenna v. Sexton, 8 Ir. Jur. N. S. 216.

(k) The Court will not set aside a writ because it does not contain any designation or description of the parties, unless the omission be calculated to mislead (Kelly v. Brophy, 5 Ir. C. L. R., 279; Dunne v. Gray, 6 Ir. Jur. O. S. 138). .

10. Such summons and plaint shall contain a true and succinct statement of the plaintiff's cause or causes of action (1); and if the plaintiff shall sue, or the defendant be sued, otherwise than in his own right, shall also state the character in which and the title by which he sues, or in respect of which the defendant is sued (m), and shall also state the relief which the plaintiff requires (n), and the venue or county in which he proposes to have any issues in fact tried (0).

(1) This section does not prevent the plaintiff from having several counts in his plaint founded on the same cause of action, provided they do not appear to have been unnecessarily restated with a view to embarrass the defendant (Harrison v. Lynch, 3 Ir. C. L. R. 527). As to what constitutes a true and succinct statement of the cause of action, reference must be had to the works upon pleading; and see post, sects. 53, 81, and 83, and the notes thereto. In Hunter v. Hunter, Ir. R. 3 C. L. 138, it was held that in an action against executors for work and labour done for their testator, the ordinary indebitatus count was sufficient, although part of the agreement was, that the work was not to be paid for by the testator until the happening of an event which did not happen till after his death. As to the necessity of commencing each cause of action in a new paragraph, see note (e), supra. (m) The character in which the plaintiff sues or the defendant is sued should be stated in the body of the plaint. An omission in this respect will not be cured by the statement in the title. (Stephenson v. Quinn, 7 Ir. C. L. R. 314). This section, however, does not apply to actions of ejectment (Swanton v. Goold, 9 Ir. C. L. R. 234). As to an action by the public officer of a banking company, see Murray v. Comyn, 11 Ir. C. L. R. 239. In a writ of revivor it is sufficient to describe the plaintiff generally as assignee of the conusee (Stapleton v. Bergin, 4 Ir. C. L. R. 421); and so also in an action by the assignee of a reversion upon a covenant contained in a lease (Lindsay v. O'Neill, 5 Ir. C. L. R. 461, per Monahan, C. J.). As

to an action by the assignee of debts due to a bankrupt under sect. 291 of the Bankruptcy Act, see Moran v. Ward, 5 Ir. Jur. N. S. 102).

should state

(n) Where the plaintiff's demand is for a debt or liquidated sum, the Prayer for prayer for judgment should state truly in one sum the amount sought to be judgment recovered: 1 G. O., 22nd January, 1856; and see Mordant v. Ryan, 5 Ir. Jur. O. S. 274; Walkington v. Greer, 8 Ir. Jur. N. S. 239, as to the necessity of stating truly the amount claimed.

In replevin it would appear that the prayer for judgment need not pray a return of the goods, as the goods are returned by the process, and not by the judgment of the Court (Gibbons v. M'Evilly, İr. R. 1 C. L. 453).

The plaintiff cannot recover larger damages than the sum mentioned in the prayer for judgment (Chevely v. Morris, 2 Wm. Bl. 1300), unless leave to amend be given. And see Butler v. Tighe, 3 Law Rec., O. S. 63, in which case a blank had been left in the prayer.

sum truly.

What it

should pray in an action of replevin. Plaintiff confined by sum

named.

breach

If the plaint shows a breach of an entire contract, but claims damages for a Partial partial breach only, the plaint will be demurrable (Blount v. Evans, 5 Ir. shown. C. L. R. 371; Kingsley v. Hackett, 14 Ir. C. L. R. 58).

of venue.

(0) Where the venue was stated as "City of Dublin," it was held to be a Description sufficient statement (Courtenay v. Blake, 8 Ir. C. L. R., Ap. 49). If the venue be omitted, the Court will give leave to amend the omission (Tuomey Omission to v. Formey, 7 Ir. Jur. O. S. 138).

11. The particulars of the plaintiff's demand (p), where the same shall be a liquidated or money demand (4), and of all credits (r) to which the defendant may be entitled, and of the balance, if any, claimed by the plaintiff, shall be endorsed on the summons and plaint, and on the copies thereof for service, unless a detailed statement of the said particulars shall have been furnished to the defendant previously, in which case it shall be sufficient to make reference to the statement so furnished (s), and to mention the balance claimed to be due on foot thereof, or unless the said demand shall consist of so many items or particulars that they cannot be conveniently endorsed thereon, in which case the plaintiff shall cause particulars engrossed on parchment to be annexed to said summons and plaint, and copies thereof, on parchment or paper, to be annexed to the copies of such summons and plaint intended for service, to be incorporated therewith by proper reference (t), and shall cause the same to be served on the defendant, together with the summons and plaint, and such endorsement or paper annexed shall be considered as particulars of demand, and no further or other particulars need be delivered, unless ordered by the Court or a Judge (u)

state any.

Particulars

of demand and credits

to be in

dorsed.

(p) The particulars should be explicit and full, so as to afford the What partidefendant an opportunity of knowing the specific demand made. And the culars should

state.

Should not

contain traversable statements.

Plaintiff restricted by his particulars.

dates, amounts, and nature of the items sought to be recovered, and of the credits allowed should be specified (Neville v. Gollock, 6 Ir. Jur. O. S. 232). Thus, where an item was described as money paid for the plaintiff, the particular was held insufficient (Mahoney v. Falvey, 7 Ir. Jur. O. S. 131). Where the defendant is not in a position to be conversant with the subject matter of the suit, the particulars should be fuller than otherwise (Prichard v. Nelson, 16 M. & W. 7-2). If, however, in consequence of the nature of the demand, or from other causes, it be not possible for the plaintiff to gives the dates, &c., he will not be ordered to furnish further particulars (Curly v. Clarke, 8 Ir. Jur. N. S. 132; Redmond v. Broe, 7 Ir. Jur. N. S. 275), unless, of course, his inability arise from his stating a case in the plaint which he is not in a position to prove (Mahoney v. Falvey, ubi supra). In an action on the money counts the plaintiff need not specify to which of the counts in the plaint the particulars refer (M'Guinness v. Meehan, 7 Ir. Jur. N. S. 13).

The particulars should not contain any allegations which might be demurred or pleaded to if contained in the pleading (Roche v. Colclough, 5 Ir. C. L. R. 538). The defendant's course under such circumstances would be to apply to the Court by motion, but he should not demur or plead to such allegations (Sigsworth v. Farrell, Ir. R. 2 C. L. 321).

At the trial the plaintiff will be confined in his proof by the particulars delivered. The plaintiff may, by leave of the Court amend the particulars; (sect. 46). He may also obtain leave to amend them at the trial (Savage Amendment. v. Canning, Ir. R. 1 C. L. 434).

When particulars must be given.

Payment or set off of

which parti

culars are given need not be pleaded.

(q). As to what is a liquidated or money demand, see sect. 96. Although the Statute requires an indorsement of particulars only in cases of a liquidated or money demand, yet the Court may order particulars in other cases, if it thinks fit so to do; see the notes to sect. 46, post. In actions under Lord Campbell's Act, 9 & 10 Vict. c. 93, particulars of the persons on whose behalf the action is brought, and of the nature of the claim, must be delivered with the plaint. And in actions for breach of a patent, or of a copyright, particulars of the breaches must be delivered. An omission to do so does not, however, render the plaint demurrable (Murphy v. Logan, 10 Ir. C. L. R. 87).

(r). Where a payment has been made generally, the plaintiff will not be ordered to specify the items of his demand to which the payment is to be appropriated (Kelly v. Hoey, 2 Ir. Jur. N. S. 394).

By the 42nd G. O., 1854, "where the plaintiff, to avoid the expense of a defence of payment or set-off, shall have given credit in the particulars of his demand for any sum or sums of money therein admitted to have been paid to the plaintiff, or which the plaintiff admits the defendant is entitled to set off. it shall not be necessary for the defendant to plead the payment or setoff of such sum or sums of money. But this rule is not to apply to cases where the plaintiff, after stating the amount of his demand states that he seeks to recover a certain balance, without giving credit for any particular sum or sums, or to cases of set off where the plaintiff does not state the particulars of such set off." The consequence is, that if the plaintiff claims a balance only and omits to give particulars of the credits allowed, he will be considerably embarrassed in case the defendant pleads a defence of payment or set off founded upon the credits in question.

Where particulars of the credits are given, and the defendant notwithstanding pleads them again, the plaintiff may at the trial show that the credits pleaded are identical with those already given credit for (Townson v. Jackson, 13 M. & W. 374; Eastwick v. Harman, 6 M. & W. 13).