Terrell JA:

The facts and arguments sufficiently appear from the judgment.

These were applications by the first and second defendants to set aside the writ of summons.

The grounds of objection were in each case the same and were as follows:

(a) that the said Writ does not specify the description of the Plaintiff as required by O. 2 r. 4 of the Rules of the Supreme Court, 1934;

(b) that the Plaintiff, being a moneylender, did not produce a statement of his account as required by s. 9 of the Moneylenders Ordinance (Ch 218);

(c) that the Plaintiff, being a moneylender, did not state by indorsement on the Writ the particulars required by O. 3 r. 10 of the Rules of the Supreme Court of Judicature in England, which said Rules are to be followed and adopted in this Honourable Court by virtue of the preliminary rules under the Rules of the Supreme Court, 1934.

As regards the first objection, there is no doubt that the writ is irregular, if the description of the plaintiff is not given (O 2 r. 4). The local rule is different in this respect from the English rule. As, however, it is merely non-compliance with a rule of procedure, the matter could have been dealt with under O. 63 r. 1, and the writ amended on payment of costs.

The second objection was of a different character. Section 9(1) of the Moneylenders Ordinance (Cap. 218) reads as follows:

Where proceedings are taken in any Court by a moneylender for the recovery of any money lent on or after 1 January 1936, or the enforcement of any agreement or security made or taken on or after the aforesaid date, he shall produce a statement of his account as prescribed in s. 7.

The subsection refers back to s. 7(i) which prescribes the information which the moneylender is required to supply upon a demand in writing. The particulars required to be supplied include, inter alia, the date of the loan (s 7(1)(a) ). Admittedly the indorsement on the writ gives the date of the promissory note, but not the date of the loan. The defect, therefore, is one of substance. The only question of difficulty is whether under s. 9(1) the particulars have to be given when the writ is issued, or can be supplied at any time before trial. It appears to me that the particulars are necessary to enable the defendant to formulate his defence, and that accordingly the particulars should be filed with the writ. This is also the inference to be drawn from the marginal note to s. 9(1) which reads "Accounts under s. 7 to be produced when suing in Court". A party `sues' when he issues his writ. In the Colony a marginal note may be referred to for the purpose of assisting the interpretation of a section (see my judgment in Re Tan Keng Tin & Re Chop Soon Bee, [1933] SSLR p. 360 at p. 363 followed by McElwaine CJ in Rex v. Cheong Koon Seng, [1939] SSLR at pp 235 and 236.

There is no local rule corresponding to English O. 3 r. 10 which provides that when a moneylender sues, various particulars, including those in s. 7(1) of the Ordinance, shall be included in the indorsement to the writ. I do not say that this rule can be applied by virtue of preliminary r. 2 of the Rules of the Supreme Court, 1934, since the English Act and the local Ordinance are not the same, but at least it suggests that the information must be given on filing the writ so as to enable the defendant to prepare his defence.

When the irregularity is non-compliance with the provisions of statute law, the provisions of O. 63 r. 1 are not applicable (see Annual Practice 1940 p. 1554, note "Dispensing with strictness of Rules"). The applicants are accordingly entitled to have the writ set aside with costs ex debito justitiae.

Writ Set aside.