Reply. [Here state the reply. If a simple joinder of issue, it may be, The plaintiff joins issue upon the defendant's defence. If the reply be in confession or avoidance of the defence, or be pleaded to a counter-claim, it may be framed in the same manner as a defence; as to which see ante, p. 114.] (Signed) plaintiff's Delivered the day of, 19-, by X. Y., of solicitor [or by the above- named plaintiff, A. B., of —]. 2. Reply to Defence and Counter-claim (b). [Title, &c., as usual.] Reply. The plaintiff as to the defence says that— 1. 2. The plaintiff as to the counter-claim says that 1. 2. (Signed) 3. Form in Particular Case (b). Reply. To Action on a Guarantee to which Defence is raised of Time given to the Principal, with Counter-claim for Non-delivery of Goods.]-The plaintiff as to the defence says that— 1. He joins issue. 2. The agreement giving time to the principal expressly reserved remedies against the surety. The plaintiff as to the counter-claim says that 1. The defendant was not ready and willing to accept and pay for the goods. (Signed) often called "Defence to Counter-claim." but should be called and intituled "Reply." As to including in the reply a counter-claim against the defendant's counter-claim, see Renton v. Neville. [1900] 2 Q. B. 181. By R. S. C., Ord. XXIII., r. 4, "Where a counter-claim is pleaded, a reply thereto shall be subject to the rules applicable to statements of defence." ... By Ord. XIX., r. 17, "It shall not be sufficient . . for a plaintiff in his reply to deny 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." Where no facts are stated specifically in support of the counter-claim, but a reference is made to the defence, the reply should deal specifically with the facts referred to. (b) This form is given by the R. S. C., Appendix E., Sect. 1. See ante, p. 104, n. (7). SECTION II.-PLEADINGS SUBSEQUENT TO REPLY (†). 1. Form of Subsequent Pleading. The formal parts of any pleading subsequent to a reply will be the same as those of the reply (ante, p. 130), except that the appropriate description of the pleading must be inserted instead of the word "reply.” The pleading (if any) that the defendant delivers after the reply is called the "rejoinder," and then follow in order the "surrejoinder," the "rebutter," the "surrebutter," &c. 2. Form of Joinder of Issue. [Title of Court and cause, and reference to record, as in "Reply," ante, p. 130.] Joinder of Issue. The defendant [or plaintiff] joins issue on the plaintiff's [or defendant's] reply to his set-off and counter-claim [or rejoinder, or, &c., inserting the description of the pleading upon which issue is joined]. (Signed) Delivered [&c., as in "Reply," ante, p. 130.] SECTION III.-PRACTICAL FORMS RELATING TO REPLY AND SUBSEQUENT PLEADINGS. 1. Application for further Time to Reply or plead Subsequent Pleading (d). [Formal parts as usual] for an order that the plaintiff [or defendant] have [or further] time to reply [or rejoin, or, &c.] in this action. (c) Pleadings subsequent to Reply.]—By R. S. C., Ord. 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." If the defendant wishes simply to deny all the material allegations in the reply, he need not deliver any further pleading (see Ord. XXVII., r. 13, post, p. 146); but if he wishes to plead special matter or matter in confession or avoidance, he must, under this Rule, obtain leave of a Master to do so (see post, p. 133, as to form of application, &c.). The Rules with respect to the reply (ante, p. 130) must be attended to in drawing the subsequent pleadings. Time for delivering subsequent Pleadings.]—By Ord. XXIII., r. 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.]—By R. S. C., Ord. 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 Ord. XXVII., r. 13, the pleadings as between such parties shall be deemed to be closed." (d) Time will generally be given even after the expiration of the time limited, unless there has been wilful or obstructive delay (Eaton v. Storer, 22 Ch. D. 91). 2. Application for Leave to plead Pleading subsequent to Reply other than Joinder of Issue (e). [Formal parts as usual] for an order that the defendant [or plaintiff] be at liberty to deliver a special rejoinder [in the form hereunto annexed] to the plaintiff's [or defendant's] reply [or rejoinder, or, &c.] in this action [and that the costs of this application be]. [An order may be framed from the terms of the application, such terms as the Master thinks fit to impose being added.] 3. Application for Leave to amend, or Order to strike out Reply or Subsequent Pleading. See post, p. 136, "Amendment, &c., of Pleadings." (e) To plead any pleading subsequent to a reply, other than a joinder of issue, leave is necessary (Ord. XXIII., r. 2, supra, n. (c). CHAPTER V. ISSUES (a). 1. Application for Directions to prepare Issues. [Formal parts as usual] for an order that the parties herein be directed to prepare issues pursuant to Ord. XXXIII. [The order may be framed from the terms of the summons.] 2. Application to have the Issues settled by the Judge. [Formal parts as usual] for an order that the issues herein be settled by the Judge in Chambers. [The order may be framed from the terms of the summons.] › (a) If the pleadings do not sufficiently define the issues of fact which constitute the real matter of dispute in the action, an application may be made under Ord. XXXIII., r. 1, which provides that "Where in any cause or matter it appears to the Court or a Judge that the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues shall, if the parties differ, be settled by the Court or a Judge." A Master has no power to settle issues, except by consent of the parties (Ord. LIV., r. 12 (d)). CHAPTER VI. EXAMPLE OF A STATEMENT OF CLAIM, DEFENCE, AND REPLY (a). The plaintiff's claim is for work done and materials provided by the plaintiff for the defendant at his request. The plaintiff also seeks to recover interest on the above balance from the 31st May, 1882, till payment or judgment. Place of trial, Lancashire, Northern Division. (Signed) Delivered the 1st of January, 1883. [Heading as in General Form.] Defence and Counter-claim. Defence. The defendant says that 1. Except as to £200, parcel of the money claimed, the architect did not grant his certificate pursuant to the contract. 2. As to £200, parcel of the money claimed, the defendant brings [or has brought] into Court £200, and says that sum is enough to satisfy the plaintiff's claim herein pleaded to. (a) This form is given in the R. S. C., App. E., Sect. II. See ante, p. 104, n. (1). The defendant says that- Counter-claim. 1. The contract contained a clause whereby it was provided that the plaintiff should complete the works by the 31st of March, 1882, or in default pay to the defendant £1 a day for every subsequent day during which the works should remain unfinished, and they so remained unfinished for 61 days to the 31st of May. 1. As to the first paragraph of the defence he joins issue. 2. As to the second paragraph thereof, the plaintiff accepts the £in satisfaction. The plaintiff as to the counter-claim says that- 3. The liquidated damages were waived by ordering extras and material alterations in the works. 4. The defendant waived the liquidated damages by preventing the plaintiff from having access to the premises till a week after the agreed time. (Signed) Delivered the 5th of February, 1883. |