Φ. ΧΧΙ. rr. 11-16. 188 Service of counterclaim [R. 249, (O)]. his statement of 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. O. 21, r. 11, (E). 11. Where any such person, as in the last preceding rule on third party. 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. 2 in Appendix B., Part II., or to the like effect. O. 21, r. 12, (E). 189 Appearance 190 Reply by third party to [Cf. R. 250, (O)]. 12. Any person not a defendant to the action, who is served with a defence and counterclaim as aforesaid, must appear thereto as if he had been served with a writ of summons to appear in an action. O. 21, r. 13, (E). 13. Any person named in a defence as a party to a counter claim. counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim. O. 21, r. 14, (E). 191 Striking out counterclaim. 14. Where a defendant sets up a counterclaim, if the [Cf. R. 254, (O)]. plaintiff or any other person named in manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent action, he may at any time before reply, apply to the Court or a Judge for an order that such counterclaim may be excluded, and the Court or a Judge may, on the hearing of such application, make such order as shall be just. O. 21, r. 15, (E). 192 Discontinu ance. 193 Judgment for balance of [R. 253, (O)]. 15. If, in any case in which the defendant sets up a counterclaim, the action of the plaintiff is stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with. O. 21, r. 16, (E). 16. Where in any action a set-off or counterclaim is counterclaim. established as a defence against the plaintiff's claim, the Court or a Judge may, if the balance is in favor 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. O. 21, r. 17, (E). 0. XXI, rr. 17-20. 194 17. Where a defendant does not dispute the plaintiff's claim and sets up no defence thereto, but sets up a counterclaim the Court or a Judge may stay proceedings respecting the Steinfo plaintiff's claim until the counterclaim is disposed of, upon claim pending such terms as may seem just. R. 255, (O). ceedings undisputed disputed counterclaim, 195 Guilty by statute." [Cf. R. 287, (O)]. 18. In every case in which a party shall plead the general Pleading "Not issue, intending to give the special matter in evidence by virtue of an Act of Parliament, he shall insert in the margin of his pleading, the words "by statute," together with the year of the reign in which the Act of Parliament on which he relies, was passed, and also the chapter and section of such Act, and shall specify whether such Act is public or otherwise; otherwise such defence shall be taken not to have been pleaded by virtue of any Act of Parliament. O. 21, r. 19, (E). 196 19. No plea or defence shall be pleaded in abatement. Plea in abateO. 21, r. 20, (E). ment. [R. 283, (O)]. 197 Defence to recovery of action for land. 20. No defendant in an action for the recovery of land who is in possession by himself or his tenant need plead his title, unless his defence depends on an equitable estate or right, [Cf. R. 285, (O)]. or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. But, except in the cases hereinbefore mentioned, it shall be sufficient to state by way of defence that he is so in possession, and it shall be taken to be implied in such statement that he denies, or does not admit, the allegations of fact contained in the plaintiff's statement of claim. He may nevertheless rely upon any ground of defence which he can prove, except as hereinbefore mentioned. O. 21, r. 21, (E). ORDER XXII. PAYMENT INTO AND OUT OF COURT, TENDER, AND OFFER TO 0. XXII, r. l. 198 Payment into faction, and Court in satis denial of 1. Where any action is brought to recover a debt or damages, any defendant may, before or at the time of delivering his defence, or at any later time by leave of the Court or a Judge, pay into court a sum of money by way of satisfaction, 120, (O)]. which shall be taken to admit the claim or cause of action in respect of which the payment is made; or he may, with a defence denying liability (except in actions or counterclaims 82 O. XXII, rr. 2-6. 199 Payment in to be signified in defence. [R. 421, (O)]. 200 Defence of tender before action. [R. 428, (O)]. 201 Notice of payment in. PAYMENT INTO COURT, OFFER TO SUFFER JUDGMENT, ETC. for libel or slander), pay money into court which shall be subject to the provisions of Rule 6. The money shall be paid to the proper officer, who for receiving the same shall be allowed by the Court or Judge a commission not exceeding one per cent. on the amount so paid in. O. 22, r. 1, (E), am.; iC. S. 1903, c. 111, s. 113. 2. Payment into Court shall be signified in the defence, and the claim or cause of action in satisfaction of which such payment is made, shall be specified therein. O. 22, r. 2, (E). 3. With a defence setting up a tender before action, the sum of money alleged to have been tendered must be brought into Court. O. 22, r. 3, (E). 4. If the defendant pays money into Court before deliverR. 422, (O), ing his defence, he shall serve upon the plaintiff a notice specifying both the fact that he has paid in such money, and also the claim or cause of action, in respect of which such payment has been made. Such notice shall be in the Form No. 3 in Appendix B., Part II., with such variations as circumstances may require. O. 22, r. 4, (E). 202 Payment out 5. In the following cases of payment into court under [Cf. R. 423, (O)]. this Order, viz: to plaintiff. 203 Rules where defence denies liability. (a) When payment into court is made before delivery of defence: (b) When the liability of the defendant, in respect to the claim or cause of action in satisfaction of which the payment into court is made, is not denied in the defence; (c) When payment into court is made with a defence setting up a tender of the sum paid; the money paid into court shall be paid out to the plaintiff on his request, or to his solicitor on the plaintiff's written authority, unless the Court or a Judge shall otherwise order. O. 22, r. 5, (E). 6. When the liability of the defendant, in respect of the claim or cause of action in satisfaction of which the payment into Court has been made, is denied in the defence, the following rules shall apply: (a) The plaintiff may accept, in satisfaction of the claim (b) If the plaintiff accepts the money so paid in, he shall (c) If the plaintiff does not accept, in satisfaction of the 0. XXII, r. 7. 204 Plaintiff' may accept payment before 7. The plaintiff, when payment into court is made before delivery of defence, may within four days after the receipt of defence, etc. [Cf. RR. 423, 424, 425. (O)]. 84 0. XXII, rr. 8-11. 205 Consolidated actions. PAYMENT INTO COURT, OFFER TO SUFFER JUDGMENT, ETC. notice of such payment, or when such payment is first signified in a defence, may, before reply, accept in satisfaction of the claim or cause of action in respect of which such payment has been made the sum so paid in, in which case he shall give notice to the defendant in the Form No. 4 in Appendix B., Part II., and shall be at liberty, in case the entire claim or cause of action is thereby satisfied, to tax his costs after the expiration of four days from the service of such notice, unless the Court or a Judge shall otherwise order, and in case of nonpayment of the costs within forty-eight hours after such taxation, to sign judgment for his costs so taxed. O. 22, r. 7, (E). 8. Where money is paid into Court in two or more actions [Cf. R. 426, (O)). which are consolidated, and the plaintiff proceeds to trial in one, and fails, the money paid in and the costs in all the actions shall be dealt with under this Order in the same manner as in the action tried. O. 22, r. 8, (E). 206 Payment in by plaintiff. [R. 427, (O)]. 207 Payment out of money paid into Court under order. 208 Regulations as 9. A plaintiff may, in answer to a counterclaim, pay money into court in satisfaction thereof, subject to the like conditions as to costs and otherwise as upon payment into court by a defendant. O. 22, r. 9, (E). 10. Money paid into Court under an order of the Court or a Judge shall not be paid out of Court except in accordance with the provisions of section 39 of the principal Act. Provided that, where before the delivery of defence money has been paid into Court by the defendant pursuant to an order under the provisions of Order XIV., he may (unless the Court or a Judge shall otherwise order) by his pleading appropriate the whole or any part of such money, and any additional payment if necessary, to the whole or any specified portion of the plaintiff's claim; and the money so appropriated shall thereupon be deemed to be money paid into Court pursuant to the preceding rules of this Order relating to money paid into Court, and shall be subject in all respects thereto. O. 22, r. 11, (E), am. 11. The manner of payment into and out of Court, and the manner in which money in Court shall be dealt with, shall in all cases where the regulations contained in Appendix M are applicable, be subject to such regulations. O. 22, r. 13, (E), am. |