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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.
17. 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 grounds 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 instance, fraud, or that any claim has been barred by the Statute of Limitations, or has been released.
19. No pleading, not being a petition or summons, shall, except by way of 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 generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deuy generally the facts alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth.
21. Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue on the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted.
22. When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And so when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a fair and substantial answer must be given.
23. When a contract is alleged in any pleading, a bare denial of the contract by the opposite party shall be construed only as a denial of the making of the contract in fact, and not of its legality or its sufficiency in law, whether with reference to the Statute of Frauds, or otherwise.
24. Wherever the contents of any document are material it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof unless the precise words of the document or any part thereof are material.
25. Whenever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred.
26. Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms of such notice be material.
27. Wherever any contract or any relation between any persons does not arise from any express agreement, but is to be implied from a series of letters or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer generally to such letters, conversations or circumstances, without setting them out in detail. And if in such case the person so pleading desires to rely in the alternative upon more contracts or relations than one as to be implied from such circumstances, he may state the same in the alternative.
28. Neither party need in any pleading allege any matters of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side, unless the same has first been specifically denied; c.9., consideration for a bill of exchange where the plaintiff sues only on the bill, and not for the consideration, as a substantial ground of claim.
29. Where an action proceeds in a District Registry all pleadings and other documents required to be filed, shall be filed in the District Registry.
30. In actions for damage by collision between vessels, unless the Court or a judge shall otherwise order, each solicitor shall, before any pleading is delivered, file with the proper officer a document to be called a preliminary act, which shall be sealed up and shall not be opened until ordered by the Court or a judge, and which shall contain a statement of the following particulars :-
(a.) The names of the vessels which came into collision, and the names of their masters.
(6.) The time of the collision. (c.) The place of the collision. (d.) The direction of the wind. (e.) The state of the weather. (1.) The state and force of the tide. (9.) The course and speed of the vessel when the other was first seen. (h.) The lights, if any, carried by her. (i.) The distance and bearing of the other vessel when first seen. (k.) The lights, if any, of the other vessel, which were first seen.
(2.) Whether any lights of the other vessel, other than those first seen, came into view before the collision.
(m.) What measures were taken, and when, to avoid the collision. (n.) The parts of each vessel which first came into contact.
If both solicitors consent, the Court or a judge may order the preliminary acts to be opened, and the evidence to be taken thereon without its being necessary to deliver any pleadings.
PLEADING MATTER ARISING PENDING THE ACTIOX. 1. Any ground of defence which has arisen after action brought, but before the defendant has delivered his statement of defence, and before the time limited for his doing so has expired, may be pleaded by the defendant in his statement of defence either alone or together with other grounds of defence. And if after a statement of defence has been delivered any ground of defence arises to any set-off or counter-claim alleged therein by the defendant, it may be pleaded by the plaintiff in his reply either alone or together with any other ground of reply:
2. Where any ground of defence arises after the defendant has delivered a statement of defence, or after the time limited for his doing so has expired, the defendant may, and where any ground of defence to any set-off or counter-claim arises after reply, or after the time limited for delivering a reply has expired, the plaintiff may within eight days after such ground of defence has arisen, and by leave of a Court or a judge deliver a further defence or further reply, as the case may be, setting forth the same.
3. Whenever any defendant in his statement of defence, or any further statement of defence as in the last rule mentioned alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence, which confession may be in the form No. 2 in Appendix (B) hereto, with such variations as circumstances may require, and he may thereupon sign judgment for his costs up to the time of the pleading of such defence, unless the Court or judge shall either before or after the delivery of such confession otherwise order.
STATEMENT OF CLAIM. 1. Subject to Rule 2 and 3 of this Order, the delivery of statements of claim shall be regulated as follows :
(a.) If the defendant shall not state that he does not require the delivery of a statement of claim, the plaintiff shall, unless otherwise ordered by the Court or a judge, deliver it within six weeks from the time of the defendant's entering his appearance.
(6.) The plaintiff may, if he think fit, at any time after the issue of the writ of summons, deliver a statement of claim, with the writ of summons or notice, in lieu of writ of summons, or at any time afterwards either before or after appearance, and although the defendant may have appeared and stated that he does not require the delivery of a statement of claim : provided that in no case where a defendant has appeared shall a statement be delivered more than six weeks after appearance has been entered, unless otherwise ordered by the Court or a judge.
(c.) Where a plaintiff delivers a statement of claim without being required to do so, the Court or a judge may make such order as to the costs occasioned thereby as shall seem just, if it appears that the delivery of a statement of claim was unnecessary or improper.
2. In probate actions the plaintiff shall, unless otherwise ordered by the Court or a judge, delive his statement of claim within six weeks from the entry of appearance by the defendant, or from the time limited for his appearance, in case he has made default; but where the defendant has appeared, the plaintiff shall not be compelled to deliver it until the expiration of eight days after the defendant has filed his affidavit as to scripts.
3. In Admiraly actions in rem the plaintiff shall, within twelve days from the appearance of the defendant, deliver his statement of claim.
4. Where the writ is specially indorsed, and the defendant has not dispensed with a statement of claim, it shall be sufficient for the plaintiff to deliver as his statement of claim a notice to the effect that his claim is that which appears by the indorsement upon the writ, unless the Court or a judge shall order him to deliver a further statement. Such notice may be either written or printed, or partly written and partly printed, and may be in the form No. 3 in Appendix (B) hereto, and shall be marked on the face in the same mavner as is required in the case of an ordinary statement of claim. And when the plaintiff is ordered to deliver such further statement, it shall be delivered within such time as by such orders shall be directed, and if no order shall be directed and if no time be so limited, then within the time prescribed by Rule 1 of this Order.
DEFENCE. 1. Where a statement of claim is delivered to a defendant, he shall deliver his defence within eight days from the delivery of the statement of claim, or from the time limited for appearance whichever shall be last, unless such time is extended by the Court or a judge.
2. A defendant who has appeared in an action and stated that he does not require the delivery of a statement of claim, and to whom a statement of claim is not delivered, may deliver a defence at any time within eight days after bis appearance, unless such time is extended by the Court or a judge.
3. Where leave has been given to a defendant to defend under Order 14, Rule 1, he shall deliver his defence, if any, within such time as shall be limited by the order giving him leave to defend ; or if no time is thereby limited, then within eight days after the order.
4. Where the Court or judge shall be of opinion that any allegations 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 cost occasioned by their having been denied or not admitted.
5. Where a defendant by his defence sets up any counter-claim, which raises questions between himself and the plaintiff, along with any other person or persons, he shall add to the title of his defence a further title, similar to the title in a statement of complaint, setting 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 form 4, in Appendix (B) hereto, or to the like effect.
7. Any person not a defendant to the action who is served with a defence and counter-claim as aforesaid, must appear thereto as if he 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.
§. Where a defendant by his statement of defence sets up a counterclaim, if the plaintiff or any other person named in manner aforesaid as party to such counter-claim contends that the claim thereby raised ought not to be disposed of by the 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.
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.
11. In Probate Actions the party opposing a will may, with his defence, give notice to the party setting up the will that he merely insists on the will being proved in solemn form of law, and only intends to crossexamine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall be subject to the same liabilities in respect of costs as he would have been under similar circumstances according to the practice of the Court of Probate.
ORDER XXIV. REPLY AND SUBSEQUENT PLEADINGS. 1. A plaintiff shall deliver his reply, if any, within three weeks 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.
CLOSE OF PLEADINGS. As soon as either party has joined issue upon any pleading of the opposite party simply without adding any further or other pleading thereto, the pleadings as between such parties shall be deemed to be closed.
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, bs settled by the judge.