defence or may leave such joinder of issue to be implied from his not delivering a reply; or he may join issue upon such part of the defence as he is not willing to admit; or may plead further facts by way of confession and avoidance of the facts alleged in the defence; or may, if necessary, plead such explanatory reply under O. XXIII. r. 6, as above mentioned; or may state an objection to all or part of the defence in point of law.

The reply, like the defence (see ante, p. 547), should answer the whole of the matters to which it is pleaded, as the defendant may otherwise move for judgment on admissions under O. XXXII. r. 6. (See ante, p. 553.) If necessary, the plaintiff may, after receipt of the defence, and before taking any further proceeding (other than an interlocutory application), withdraw all or any part of his claim by a notice of discontinuance under O. XXVI. r. 1. (See "Discontinuance," post, p. 690.) He cannot properly do this by his reply. (See Brooking v. Maudslay, 2 Times Rep. 827.)

As to the mode of raising objections in point of law in the reply or any subsequent pleading, see post, p. 603.

Where any particular ground of reply applies only to a part of the grounds of defence alleged by the defendant, the paragraph stating that ground of reply should be so expressed as to show distinctly that it is pleaded only to that part of the defence. (See Defences in General," unte, p. 547.)

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The plaintiff, in replying, may rely either on legal or on equitable grounds of reply (see "Equitable Claims and Defences, &c.," ante, p. 33) or on both, and may plead alternative or inconsistent grounds of reply, if he thinks fit.

With respect to the numbering of paragraphs in replies and subsequent pleadings, see ante, p. 8, and with respect to the order in which different grounds of reply should be pleaded, see the observations as to the order of pleading defences, ante, p. 548.

If the plaintiff alleges any fresh facts in his reply, or pleads such explanatory reply under O. XXIII. r. 6, as above mentioned, he must take care that his reply is consistent with his statement of claim, as it would otherwise contravene the provisions of O. XIX. r. 16, which direct that "No pleading 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." A defect of this kind under the former system of pleading was called "a departure" in pleading, and was a ground of demurrer. (See Bullen & Leake, 3rd ed., p. 819.) It will now be ground for an application to strike out the reply or rejoinder in which the defect occurs. But the rule appears not to apply to the case of a reply to a counterclaim. (See post, p. 582.)

The pleading (if any) of the defendant in answer to the plaintiff's reply is called a rejoinder, but, as a joinder of issue on the reply will be implied from not delivering a rejoinder (see O. XXVII. r. 13, cited post, p. 563), it is unnecessary to deliver a rejoinder, except where the defendant desires to admit some of the facts stated in the reply, or to state fresh facts by way of confession and avoidance of the matter pleaded in the reply, or to plead an objection in point of law to the reply. In either of the two lastmentioned cases leave to rejoin specially must be obtained accordingly. (See O. XXIII. r. 2, below cited.)

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The pleadings (if any) subsequent to rejoinder were called, under the former system, 'surrejoinder," "rebutter," "surrebutter," &c. (see Bullen & Leake, 3rd ed., pp. 453, 458; Stephen on Pleading, 6th ed., p. 55), but such pleadings are now of very rare occurrence.

Ordinary Form of Reply to a Defence, where the Defendant has not pleaded a Counterclaim.

(See R. S. C. 1883, App. E., Sects. I. and II.)

In the High Court of Justice,

18-. B. No.-.

Queen's Bench Division.

Between A. B., Plaintiff,
and

C. D., Defendant.

Reply.

The plaintiff says that:1. He joins issue.

By O. XXIII. r. 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 shall be pleaded only upon such terms as the Court or judge shall think fit." Leave under this rule to plead a rejoinder other than a joinder of issue is obtainable by summons from a Master at Chambers, whenever the case fairly requires a special rejoinder.

A special rejoinder must be consistent with the party's statement of defence, as it would otherwise contravene the provisions of O. XIX. r. 16, above cited.

By O. XXIII. r. 5, "As soon as any party has joined issue upon the preceding pleading of the opposite party simply, without adding any further or other pleading thereto, or has made default as mentioned in O. XXVII. r. 13, the pleadings, as between such parties, shall be deemed to be closed." (See O. XXVII. r. 13, cited infra.)

Time for delivering replies and subsequent pleadings.]-By O. XXIII. r. 1, "A plaintiff shall deliver his reply, if any, within twenty-one days 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." This rule applies not only to replies to defences properly so called, but also to the reply to counterclaim. (See "Counterclaims," post, p. 582.)

By O. XXIII. r. 3, "Subject to" O. XXIII. r. 2, above cited, “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.”

As to the mode of computing time, and as to vacations, &c., see Time for delivering pleadings," ante, p. 17.

As to extensions of the time for replying, rejoining, &c., by consent in writing, see O. LXIV. r. 8, cited ante, p. 18.

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By O. XXVII. r. 13, If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue." This rule does not apply to replies to counterclaims. (See "Counterclaims," post, p. 582.)

2. &c. [Here state in a summary form, and in paragraphs numbered consecutively, any other grounds of reply relied upon.] (Signed) L. M.

Delivered the

For Forms of Reply where the Defendant has pleaded a Counterclaim, see post, pp. 581 et seq.

For Forms of Reply stating an Objection in Point of Law, see "Proceedings in Lieu of Demurrer," post, pp. 603, 604.

Reply stating different Grounds of Reply to different Grounds of Defence alleged by the Defendant.

The plaintiff says that

1. As to the -paragraph [or, the

graphs] of the defence [or, As to the allegation that, &c., or, As to so much of the defence as alleges that, &c.], he joins issue. 2. As to the paragraph of the defence [here state any grounds of reply as to the matters alleged in that paragraph].

Reply to a Defence pleaded by one of several Defendants who have severed in their Defences.

In the High Court of Justice,
Queen's Bench Division.

18-. B. No.

Between A. B. and C. D., Plaintiffs.

and

E. F., G. H. and I. K., Defendants.

Reply to the defence of the defendant G. H.

The plaintiffs, as to the defence of the above-named defendant G. H., say that :

1. &c. [Here state the grounds of reply relied upon in answer to the defence to which the reply is pleaded.]

Form of Rejoinder to a Reply, where the Defendant has not pleaded a Counterclaim.

[Heading as in the first Form, ante, p. 563.]

Rejoinder.

The defendant says that

1. He joins issue.

2. &c. [Here state, in paragraphs numbered separately, any special grounds of rejoinder pleaded by leave under 0. XXIII. r. 2, cited ante, p. 563.]

For Forms of Rejoinder to a Reply, where the Defendant has pleaded a Counterclaim, see" Counterclaims," post, p. 586.

IV.-REPLIES UNDER O. XXIII. r. 6 (a).

(a) By O. XXIII. r. 6, “No new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim or by way of reply."

Under the system of pleading which was in force previously to the Judicature Acts, it frequently happened that in consequence of the generality of statement allowed in declarations, a plea either mistook altogether the cause of action, or restricted it within narrower limits than the plaintiff intended. In such cases the plaintiff was not allowed, under a mere denial of the matter of defence alleged in the plea, to show that he was suing for other causes of action than those to which the matter pleaded applied, as by such denial he was deemed to adopt the particular or restricted cause of action which the plea had specified (Rogers v. Custance, 1 Q. B. 77; Brucegirdle v. Peacock, 8 Q. B. 174; Jubb v. Ellis, 3 D. & L. 364), and he was not allowed to reply by merely denying that the cause of action specified in the plea was the cause of action stated in the declaration, because the defendant would thereby have been precluded from pleading any matter of defence which he might have to the causes of action on which the plaintiff really relied (Sprigg v. Neal, 3 Lev. 92; Heydon v. Thompson, 1 A. & E. 210; Wheeler v. Senior, 7 M. & W. 562; Aldred v. Constable, 6 Q. B. 370; Glover v. Dixon, 9 Ex. 158). It was also held that a reply joining issue under s. 79 of the C. L. P. Act, 1852, did not import a denial that the cause of action specified in the plea was the same as that stated in the declaration. (Glover v. Dixon, supra; Huddart v. Rigby, L. R. 5 Q. B. 139; 39 L. J. Q. B. 19; see Ways," post, p. 1000.) In such cases, therefore, where the plea primâ facie answered the whole of the declaration so as not to be demurrable on the ground that it only answered part of the alleged cause of action, the

plaintiff was in general obliged, in order to prevent the exclusion or undue restriction of his causes of action, either to amend his declaration so as to show distinctly what his real causes of action were, or to plead a new assignment. (See Bullen & Leake, 3rd ed., p. 654.)

A new assignment was a pleading in the nature of a special kind of reply, which explained the declaration in such a manner as to point out the real or supposed mistake of the defendant, and to show that the defence pleaded was either wholly inapplicable to the causes of action relied upon by the plaintiff, or was applicable only to a part of them. It stated that the plaintiff was suing for another cause of action than that admitted in the plea; as, for example, for another promise or debt (Heydon v. Thompson, 1 A. & E. 210; Monkman v. Shepherdson, 11 A. & E. 411; Jubb v. Ellis, 3 D. & L. 364), for a trespass on a different spot or upon a different occasion (Pratt v. Groome, 15 East, 235; Oakley v. Davis, 16 East, 82), or for an excess in committing an act which the defendant had attempted to justify by his plea (Loweth v. Smith, 12 M. & W. 582; Worth v. Terrington, 13 M. & W. 781; Playfair v. Musgrove, 14 M. & W. 239; Ash v. Dawnay, 8 Ex. 237).

Where the plea wholly mistook the causes of action relied upon by the plaintiff, the new assignment stated that the plaintiff was suing not for the causes of action admitted in the plea, but for breaches of other contracts, or for other breaches of the same contract, or for trespasses or grievances committed at other times and on other occasions than those referred to in the plea, or for trespasses or grievances committed to a greater extent and with more violence, or for a longer time, than was necessary for the purposes or upon the occasions stated in the plea. (See Bullen & Leake, 3rd ed., pp. 655, 755.) Where the plea correctly answered part of the causes of action, but unduly restricted them, the plaintiff, if he disputed the truth of the matter of defence pleaded, joined issue on the plea, and also new assigned that he sued not only for the causes of action admitted in the plea, but also for breaches of other contracts, or for other breaches, or for trespasses or grievances committed at other times, &c., than those referred to in the plea. (Ib.)

The plaintiff under a new assignment was bound to state and prove a cause of action within the terms of the declaration (Cheasley v. Barnes, 10 East, 73; Pugh v. Griffith, 7 A. & E. 827), and of the particulars (if any) delivered by him (C. L. P. Act, 1852, s. 87, now repealed). A new assignment was pleaded to in the same manner as a declaration, subject, however, to the restrictions imposed by s. 88 of the C. L. P. Act, 1852 (now repealed).

As to the practice with respect to new assignments under the former system of pleading, see further, Bullen & Leake, 3rd ed., pp. 653 et seq., and pp. 755 et seq., and Stephen on Pleading, 6th ed., pp. 186-195.

The necessity for an amendment or reply introducing matter in the nature of a new assignment rarely arises under the present system of pleading, but it may occasionally be found necessary to proceed under O. XXIII. r. 6, above cited, in cases where, in answer to a general statement of the plaintiff's ground of complaint, a defence is pleaded which, while setting up a prima facie answer to the claim, apparently mistakes the causes of action intended to be sued upon, or unduly restricts the causes of action on which the plaintiff relies. (See Trespass," post, p. 971.) In such cases the plaintiff could not properly reply by pleading a mere denial that the causes of action referred to in the defence were the same as those mentioned in the statement of claim (or in the indorsement