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2. There was contributory negligence on the part of the plaintiff [or the plaintiff's servant].

(Signed) -
Delivered

To Actions for Infringement of a Patent.]-1. The defendant did not infringe the patent (sic).

2. The invention was not new.

3. The plaintiff was not the first or true inventor.

4. The invention was not useful.

5. [Denial of any other matter of fact affecting the validity of the patent.] 6. The patent was not assigned to the plaintiff.

(Signed)
Delivered

Copyright.]-1. The plaintiff is not the author [assignee, &c., as the case

may be].

2. The book was not registered.

3. The defendant did not infringe (sic).

(Signed)

Delivered

Trade Mark.]-1. The trade mark is not the plaintiff's.

2. The alleged trade mark is not a trade mark. 3. The defendant did not infringe (sic).

(Signed)
Delivered

Light.]—1. The plaintiff's lights are not ancient [or deny his other alleged prescriptive rights].

2. The plaintiff's lights will not be materially interfered with by the defendant's buildings.

Nuisance.]-3. The defendant denies that he or his servants pollute the water [or do what is complained of].

[If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of his claim, i.e., whether by prescription, grant, or what.]

4. The plaintiff has been guilty of laches, of which the following are

particulars :

1870. Plaintiff's mill began to work.

1871. Plaintiff came into possession.

1883. First complaint.

5. As to the plaintiff's claim for damages, the defendant will rely on the above grounds of defence, and says that the acts complained of have not produced any damage to the plaintiff. [If other grounds are relied on, they must be stated, e.g., the Statute of Limitations as to past damage.]

(Signed).
Delivered

To Actions for Seduction.]-1. The said A. B. was not the servant of the plaintiff.

2. The defendant did not seduce and carnally know the said A. B.

(Signed)
Delivered

Sub-Section 4.-To Actions for Recovery of Land (n).

1. The defendant is in possession of the premises by himself or his

tenant.

2. The defendant had no notice to quit.

(Signed)
Delivered

(n) This form is comprised in the R. S. C., Appendix D., Sect. VII. p. 104, n. (7).

See ante,

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II. Where a Person other than the Plaintiff is made Party

to the Counter-claim

III. Applications to strike out or exclude Counter-claim, or
to have it tried separately

IV. Forms in Particular Cases

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(a) Set-off and Counter-claim.]-By the Judicature Act, 1873, s. 24, sub-s. 3, "The said Courts respectively, and every Judge thereof, shall 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 matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of Court or any order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant."

This section, and the Rules of Court, enable the defendant to set up, by way of setoff or counter-claim, any claim which he may have against the plaintiff (infra), or against the plaintiff together with a third party (post, Sect. II., p. 126). If the plaintiff is not involved in the claim against the third party, it cannot be raised by counterclaim; but if it consists of a claim to contribution or indemnity, it may be raised so as to decide the question once for all by a notice under Ord. XVI., rr. 48 et seq. (see post). In other cases claims against persons not parties to the suit can only be raised in a separate action.

By Ord. XIX., r. 3, “A defendant in an action may set off, or set up, by way of counter-claim against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim 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 counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof."

A counter-claim must claim relief against the plaintiff, and he must be a party to it (Harris v. Gamble, 6 Ch. D. 748; Furness v. Booth, 4 Ch. D. 586; Turner v. Hednesford Gas Co., 3 Ex. D. 145; Shephard v. Beane, 2 Ch. D. 223). It is not sufficient if it only claims relief against him in one of two inconsistent alternatives

SECTION I.-IN ORDINARY CASES.

1. Form where Set-off and Counter-claim is set up together with a

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(Evans v. Buck, 4 Ch. D. 432). In cases where the relief claimed by the defendant is not claimed against the plaintiff, a notice under Ord. XVI., rr. 48 et seq., is the only mode of procedure (Central African Trading Co., Ltd. v. Grove, 40 L. T. 540—C. A.). When two or more plaintiffs sue for a joint claim, it has been held that the defendant may set up a separate counter-claim against each or either of them (Manch. Shef. and Line. Rail. Co. and L. and N. W. Rail. Co. v. Brooks, 2 Ex. D. 243). But several claims cannot be set off against a joint liability (Re Exchange Banking Co., 46 L. T. 474.

By R. S. C., Ord. XVI., r. 3, "Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he may obtain the benefit thereof by establishing his set-off or counter-claim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon."

Under the above Rule the defendant may set up by way of set-off or counter-claim any claim, liquidated or otherwise, which he may have against the plaintiff, which is not so incongruous as to be incapable of being conveniently tried together with the original claim (S. A. Republic v. Compagnie du Nord, [1897] 2 Ch. 487; [1898] 1 Ch. 190). It is not necessary in this case that the claim of the defendant should be connected with that of the plaintiff (Gray v. Webb, 21 Ch. D. 802 ; Quin v. Hession, 40 L. T. 70-Ir. Ex. D.) The power to set up a counter-claim creates no new rights. It does not enable a defendant to counter-claim in respect of a matter which would not form a cause of action (Pellas v. Neptune Marine Ins. Co., 5 C. P. D. 34—C. A. ; Birmingham Estates Co. v. Smith, 13 Ch. D. 506; Gathercole v. Smith, 7 Q. B. D. 626). The rule as to joinder of causes of action with a claim for recovery of land applies to a counter-claim (Compton v. Preston, 21 Ch. D. 138).

(b) Form.]-By Ord. XXI., r. 10, “Where any defendant seeks to rely upon any grounds as supporting a right of counter-claim, he shall, in his statement of defence, state specifically that he does so by way of counter-claim."

(c) The requirements of Ord. XIX., r. 11 (ante, p. 100), must be attended to in framing the pleading.

(d) The counter-claim is often entitled thus :-" Between A. B., plaintiff, and C. D., defendant, by original action, and between C. D., plaintiff, and A. B., defendant, by counter-claim." But except in cases under Ord. XXI., r. 11 (post, p. 126), where a person not already a party to the action is made a defendant to the counter-claim, this is unnecessary (cp. per Quain, J., Williams v. Wright, W. N. 1875, 232).

A counter-claim arising after action brought must be pleaded as so arising (see post. "Pleading Matters arising after Action brought "), so that the plaintiff may be able to confess it. If it is not so pleaded, the plaintiff may apply to strike it out.

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By R. S. C., Ord. XXI., r. 16, If, in any case in which the defendant sets up a counter-claim, the action of the plaintiff is stayed, discontinued, or dismissed, the counter-claim may nevertheless be proceeded with.”

Defence.

1. [Here state the defence; see ante, p. 115.]

[Set-off and] Counter-claim.

By way of [set-off and] counter-claim the defendant C. D. claims [or states] as follows (e) :

:

1. [Here state the grounds of the set-off and counter-claim in the same manner as a statement of claim. See the forms and notes ante, pp. 102 et seq.]

Conclude as follows:

The defendant by way of [set-off and] counter-claim (e) claims -[Here state the relief or remedy sought (e).]

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(Signed)

19 [by W. Z., of

(agent for

D. A., of), solicitor for the defendant].

2. Form of Set-off and Counter-claim where set up

alone.

[The above form, omitting all reference to the defence, will suffice.]

3. Forms prescribed by R. S. C., App. D., Sect. 1.

The defendant says that :

1. \

Counter-claim.

[To be filled up in the manner exemplified in the following forms.]

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The defendant repeats paragraph 2 of his defence, and says that :

3.

4.

[To be filled up.]

The defendant counter-claims :

(Signed) -
Delivered

(e) The counter-claim must state specifically the relief which the defendant claims either simply or in the alternative, and if the defendant seeks relief in respect of several distinct claims or causes of complaint founded upon separate and distinct facts they must be stated, as far as may be, separately and distinctly (Ord. XX., rr. 6, 7, ante, p. 102, n. (ƒ)). The nature of the claim should be stated as in a statement of claim. As to which, and the forms which may be used, see ante, pp. 102 et seq.

By Ord. XXI., r. 17, "Where in any action a set-off or counter-claim 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."

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