of the writ of summons), and it would seem also that he would not in general be entitled to raise that point under a mere joinder of issue on the defence, unless perhaps in cases where he is in a position to show that the causes of action on which he relies are wholly and obviously distinct from the supposed causes of action which are specified in the defence. (See "Ways," post, p. 1000.) It is therefore usually advisable for the plaintiff under these circumstances to proceed under the rule above cited by amending, so as to show distinctly what are the causes of action relied upon, or by replying specially in such a manner as to give distinct notice of his intention to contend that the defence pleaded is not applicable to the causes of action relied upon, or applies only to a part of them.

Where the matter sought to be introduced in the nature of a new assignment merely constitutes a minor portion of the cause of action relied upon, and the plaintiff disputes the truth of the matters alleged in the defence and wishes to proceed for the causes of action which it professes to answer, as well as for those to which it does not apply, the simpler and better course will usually be to join issue at once on the defence, and also to introduce the omitted matter by way of a special reply under the rule above cited. But where the plaintiff does not wish to proceed at all in respect of the causes of action which the defence professes to answer, and relies upon wholly different causes of action, the better course will usually be to amend by stating the causes of action relied upon with greater particularity.

There is this advantage in introducing the explanatory matter by way of an amendment, that the defendant will then be obliged to plead his defence to the newly stated matter specifically, whereas if it is merely introduced in the reply, it seems that he will be at liberty simply to join issue upon it, or allow a joinder of issue upon it to be implied under O. XXVII. r. 13, ante, p. 563, from his not delivering any rejoinder, and indeed will not be entitled to plead without leave any other rejoinder than a joinder of issue. (O. XXIII. r. 2, ante, p. 563.)

If the defendant, on such a reply being pleaded, wishes to pay money into Court, as to the newly stated matter, he should obtain leave to amend the defence and pay money into Court. (See "Amendment of Pleadings," ante, p. 14, and "Payment into Court," post, p. 798.)

A special reply in the nature of a new assignment under Ó. XXIII. r. 6 need not be in any particular form, but it must state the omitted matter with sufficient particularity to point out distinctly what are the causes of action relied upon by the plaintiff, and what the case is which the defendant has to meet. It must be consistent with the terms of the statement of claim, or of the indorsement of the writ where no statement of claim has been delivered, or of the particulars, if any, delivered by the plaintiff, and cannot, therefore, be pleaded in respect of any causes of action not covered by those terms respectively. (See ante, p. 566.) If such reply introduced new matter which was inconsistent with the terms of the statement of claim, it would be objectionable as contravening the provisions of O. XIX. r. 16, cited ante, p. 562.

Under the former system of pleading, a new assignment did not operate as an admission of the truth of the matters of defence alleged in the plea to which it was pleaded. (Norman v. Wescombe, 2 M. & W. 349; Robertson v. Gantlett, 16 M. & W. 289; Ellison v. Isles, 11 A. & E. 665.) But it would seem that a reply in the nature of a new assignment under O. XXIII. r. 6 would, if unaccompanied by a joinder of issue or by a statement to the effect that the plaintiff denied, or refused to admit, the

Reply that the Contract sued upon is not the Contract referred to in the Defence, giving Particulars of the Contract relied upon.

The agreement [or, covenant] mentioned in the statement of claim [or, where no statement of claim has been delivered, in the indorsement of the writ of summons] is not the agreement [or, covenant] which is referred to in the defence, but is another and different agreement [or, covenant], viz. [state particulars of the agreement, or covenant, which is relied upon by the plaintiff].

Reply that the Breaches relied upon are not the same as those referred to in the Defence, giving particulars of the Breaches relied upon.

The breaches mentioned in the statement of claim [or, where no statement of claim has been delivered, in the indorsement of the writ of summons] are not the breaches referred to in the defence, but other and different breaches of the said agreement [or, covenant]. They are as follows, viz. :-[state particulars of the breaches relied upon by the plaintiff, as, for instance, They are breaches of the said agreement (or, covenant) which were committed by the defendant subsequently to the of 18(or, the date of the said release, or, judgment, &c.), viz., between that date and the of -, 18-].

Reply joining Issue on the Defence, and stating that the Breaches relied upon include Breaches other than those which are admitted by the Defence.

1. The plaintiff joins issue.

2. The breaches of the said agreement [or, covenant] which are relied upon by the plaintiff, and in respect of which this action is brought [or, The breaches of the said agreement (or, covenant) which are mentioned in the statement of claim, or, it no statement of claim has been delivered, in the indorsement of the writ of summons], include not only those breaches which are admitted [or, referred to] in the defence, but also other breaches

matters alleged in the defence, have the effect of admitting the truth of the material facts stated in the defence. (See O. XIX. r. 13, cited ante, p. 517.)

of the said agreement [or, covenant], viz. :-[state particulars of such of the breaches relied upon as are not admitted by the defence: see the preceding form].

Reply stating that the Wrongful Acts complained of are different from those which are admitted in the Defence, and giving Particulars of them.

The acts which are complained of, and for which this action is brought [or, The wrongful acts which are mentioned in the statement of claim, or, if no statement of claim has been delivered, in the indorsement of the writ of summons], are not the trespasses [or, grievances, or, acts] which are admitted [and attempted to be justified] in the defence. They are trespasses [or, grievances, or, wrongful acts] committed by the defendant upon other parts of the said land [or, in respect of other goods, or, at other times, or, upon other occasions, or, for other purposes] than those referred to in the defence.

Particulars are as follows:-[State particulars of the causes of action relied upon by the plaintiff, so as to show that the defence pleaded is inapplicable to them.]

Reply joining Issue on the Defence, and also stating that besides the Matters admitted by the Defence the Plaintiff complains of other Wrongful Acts of the Defendant, and giving Particulars thereof.

1. The plaintiff joins issue.

2. The wrongful acts [or, trespasses, or, grievances] complained of by the plaintiff in this action include not only those which are admitted [or, referred to and attempted to be justified] in the defence, but also trespasses [or, grievances, or, wrongful acts] committed by the defendant upon other parts of the said land [or, in respect of other goods, or, at other times, or, upon other occasions, or, for other purposes] than those referred to in the defence.

Particulars are as follows:-[State particulars of such of the acts complained of as are not admitted by the defence.]

A like Reply to a Defence of Justification, where the Plaintiff complains of an Excess.

1. The plaintiff joins issue.

2. The wrongful acts [or, trespasses, or, grievances] complained of by the plaintiff in this action include not only those which are admitted [or, referred to and attempted to be justified] in the defence, but also wrongful acts [or, trespasses, or, grievances] committed by the defendant to a greater extent and with more violence [or, for a longer time] than was necessary for the purposes [or, upon the occasions] referred to in the defence.

Particulars are as follows:

Like Forms of Reply: see "Ways," post, pp. 1000, 1001.

CHAPTER VIII.

COUNTERCLAIMS (a).

(a) Counterclaims in general.]-Previously to the Judicature Acts, a defendant who had a cross-claim against the plaintiff could not in any case recover anything in respect of it from the plaintiff by way of counterclaim in the same action (Stooke v. Taylor, 5 Q. B. D. 569, 575 et seq.; 49 L. J. Q. B. 857), although in cases of mutual debts within the statutes of set-off (2 Geo. II. c. 22, s. 13; 8 Geo. II. c. 24, ss. 4, 5), and in certain other cases mentioned under "Set-off," post, p. 822, a defendant might plead a set-off by way of defence. The Judicature Acts, whilst preserving the right of pleading a defence of set-off in cases in which set-off could have been pleaded under the law existing previously to the Judicature Acts (see "Set-off," post, p. 822), have greatly extended the defendant's rights in respect of cross claims against the plaintiff.

By O. XIX. r. 3, "A defendant in an action may set off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the Court or a judge may, on the application of the plaintiff before trial, if in the opinion of the Court or judge such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof."

By O. XXI. r. 17, "Where in any action a set-off or counterclaim is established as a defence against the plaintiff's claim, the Court or a judge 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."

These rules, in so far as they give the right of enforcing cross-claims in the same action, are based on the following enactments of the Judicature Act, 1873.

By s. 24 (3) of that Act, the High Court of Justice and the Court of Appeal respectively, and every judge thereof, have "power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the said Courts respectively, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or