of denied

facts.

4. Where the Court or a judge shall be of opinion that any allega- Admission tions of fact denied or not admitted by the defence ought to have been admitted, the Court may make such order as shall be just with respect to any extra costs occasioned by their having been denied or not admitted.

against

5. Where a defendant by his defence sets up any counter-claim Raising which raises questions between himself and the plaintiff along with questions any other person or persons, he shall add to the title of his defence a third further title similar to the title in a statement of complaint, setting parties. forth the names of all the persons who, if such counter-claim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver his defence to such of them as are parties to the action within the period within which he is required to deliver it to the plaintiff.

6. Where any such person as in the last preceding rule mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence; and such service shall be regulated by the same rules as are hereinbefore contained with respect to the service of a writ of summons and every defence so served shall be indorsed in the Form No. 4 in Appendix (B.) hereto, or to the like effect.

7. Any person not a defendant to the action, who is served with a Appeardefence and counter-claim as aforesaid, must appear thereto as if he ance of had been served with a writ of summons to appear in an action.

8. Any person named in a defence as a party to a counter-claim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim.

See O. xvi., rr. 20 and 21, and r. 1 of this Order. The time is eight days.

Rule 8 does not allow a third party to deliver a counter-claim (Street v. Gover, L. R. 2 Q. B. 498; 46 L. J. Q. B. 582).

third parties.

9. Where a defendant by his statement of defence sets up a counter- Exclusion claim, if the plaintiff or any other person named in manner aforesaid of counterclaims. as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may, at any time before reply, apply to the Court or a judge for an order that such counter-claim may be excluded, and the Court or a judge may, on the hearing of such application, make such order as shall be just.

See O. xix., r. 3.

10. Where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case.

ORDER XXIII.

Discontinuance.

DISCONTINUANCE.

1. The plaintiff may, at any time before receipt of the defendant's statement of defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action or withdraw any part or parts of his alleged cause of complaint; and thereupon he shall pay the defendant's costs of the action, or, if the action be not wholly discontinued, the defendant's costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a judge, but the Court or a judge may, before or at or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may seem fit, order the action to be discontinued, or any part of the alleged canse of complaint to be struck out. The Court or a judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out; but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave,

The order as to costs in the first part of this rule refers to all the costs incurred, and is absolute (The St. Olaf, 2 P. D. 113; 36 L. T. N. S. 30). And, when money has been paid into Court in lieu of bail, and the res has been arrested without due cause, if the plaintiff discontinues his action he will be ordered to pay interest on the

sum paid into Court, in addition to costs (The Western Ocean, L. R. 3 Ad. 40). An ordinary letter from a solicitor, stating that he is instructed not to proceed further with an action, is a sufficient notice of discontinuance: The Pommerania, L. R. 4 P. D. 195; 48 L. J. Ad. 55.

2. Where a cause has been entered for trial it may be withdrawn by either plaintiff or defendant, upon producing to the proper officer a consent in writing signed by the parties.

2a. A defendant may sign judgment for the costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn if the action be not wholly discontinued.

ORDER XXIV.

REPLY AND SUBSEQUENT PLEADINGS.

1. A plaintiff shall deliver his reply, if any, within three weeks Reply, &c. after the defence or the last of the defences shall have been delivered, unless the time shall be extended by the Court or a judge.

2. No pleading subsequent to reply other than a joinder of issue shall be pleaded without leave of the Court or a judge, and then upon such terms as the Court or judge shall think fit.

3. Subject to the last preceding rule, every pleading subsequent to reply shall be delivered within four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a judge.

ORDER XXV.

CLOSE OF PLEADINGS.

As soon as either party has joined issue upon any pleading of the Close of opposite party simply without adding any further or other pleading pleadings. thereto, the pleadings as between such parties shall be deemed to be

closed.

Issues.

ORDER XXVI.

ISSUES.

Where in any action it appears to a judge that the statement of claim or defence or reply does not sufficiently define the issues of fact in dispute between the parties, he may direct the parties to prepare issues, and such issues shall, if the parties differ, be settled by the judge.

Amendment of pleadings.

Times.

ORDER XXVII.

AMENDMENT OF PLEADINGS.

1. The Court or a judge may, at any stage of the proceedings, allow either party to alter his statement of claim or defence or reply, or may order to be struck out or amended any matter in such statements respectively which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and all such amendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties.

2. The plaintiff may, without any leave, amend his statement of claim once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared.

3. A defendant who has set up in his defence any set-off or counterclaim may, without any leave, amend such set-off or counter-claim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or, in case there be no reply, then at any time before the expiration of twenty-eight days from the filing of his defence.

4. Where any party has amended his pleading under either of the last two preceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the Court or a judge to disallow the amendment, or any part thereof, and the Court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may seem just.

5. Where any party has amended his pleading under Rule 2 or 3 of this Order, the other party may apply to the Court or a judge for leave to plead or amend his former pleading within such time and upon such terms as may seem just.

6. In all cases not provided for by the preceding rules of this order, application for leave to amend any pleading may be made by either party to the Court or a judge in chambers, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may seem just.

7. If a party who has obtained an order for leave to amend a pleading delivered by him does not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the Court or a judge.

8. A pleading may be amended by written alterations in the Method of pleading which has been delivered, and by additions on paper to be amending. interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the pleading difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended.

9. Whenever any pleading is amended, such pleading when amended shall be marked with the date of the order, if any, under which the same is so amended, and of the day on which such amendment is made, in manner following, viz.: "Amended

10. Whenever a pleading is amended, such amended pleading Time. shall be delivered to the opposite party within the time allowed for amending the same.

11. The Court or a judge may, at any stage of the proceedings, allow the plaintiff to amend the writ of summons in such manner, and on such terms, as may seem just.

See as to amendments generally of writ of summons, note to O. ii., r. 2. The amended writ should be served as if it were an original writ (The Cassiopeia, 4 P. D. 188; 48 L. J. Ad. D. 39).

The Court has power to order a pleading to be partially Decisions amended, or to be wholly struck out, according as it thinks amend

as to