Reports of Cases Determined in the Court of Appeal of New Zealand (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: the learned Judge allowed the objection. The rejection of this evidence is specified in the rule nisi (together with some other MiLE3 grounds now abandoned) as one of the grounds for a new trial; and the respondents are therefore at liberty to resort to this ground, if necessary, to maintain their rule. It will be convenient, in the first place, to consider what necessity there would be, independently of R. G. 76, for setting forth the wool security in the declaration. Under Eule 41, the declaration must state specifically all such matters of fact as are material and necessary to constitute the plaintifFs right of action; that is to say, to show that a right of action has accrued to the plaintiff, and that such right is still subsisting: and by Rule 40 the declaration is sufficient, if it state this much. Clearly, it is not meant that the declaration shall state the whole case of the plaintiff. This, we say, is clear both upon the terms of Rules 40 and 41, and by inference from other rules. It was never intended to reverse the principle of English pleading, that it is not necessary to anticipate the answer of the adverse party. Rule 56 may be referred to in proof of this assertion. Nor was it intended wholly to reverse the rule, that matter of evidence shall not be pleaded (see Rule 51); though it is certain that' some matters, which in the English system are treated as evidentiary, must in New Zealand appear on the record. As there will be occasion to show more at large, it would involve practical absurdity to require the plaintiff to state his whole case in the declaration. And it may be safely laid down as the fundamental principle of pleading in foree here, as well as in England, that it is enough for each litigant, by each of his successive pleadings, to disclose, on t...