Form of Counterclaim, where no Defence is pleaded (see note (b), post, p. 578). (See R. S. C. 1883, App. D., Sect. I.) } the same manner 2. &c. in a statement of claim, the material facts on which the defendant relies for his counterclaim, dividing the statement of them, when necessary, into separate paragraphs numbered consecutively. See the forms of counterclaims, infra.] The defendant counterclaims: [Here state the amount of debt or damages, or the relief or (Signed) L. M. [See as to signature, ante, p. 14.] of 18-. C. P. 179; see The Sir Charles Napier, 5 P. D. 73; Gray v. Webb, supra.) As counterclaims are in the nature of cross-actions, it would seem that the plaintiff, or any person joined with him as a co-defendant to a counterclaim, may in general take any such objection to the counterclaim on the ground of nonjoinder or misjoinder of parties as could have been properly taken on that ground if the counterclaim had been a statement of claim in an action brought by the defendant for the same cause of complaint. (See "Parties to Action," ante, p. 19, and see "Counterclaims in General," ante, p. 573.) B.L. PP General Form of Defence and Counterclaim (b). [Heading as in the preceding form.] Defence. The defendant says that:- 1. [To be filled up. See the general form of Defence, ante, p. 556, and the forms of Defences, post.] 2. (b) Mode of pleading Counterclaims.]-A counterclaim is in the nature of a statement of claim in a cross-action by the defendant (McGowan v. Middleton, 11 Q. B. D. 464, 473; 52 L. J. Q. B. 355; Amon v. Bobbett, 22 Q. B. D. 543, 548; 58 L. J. Q. B. 219; Stumore v. Campbell, (1892) 1 Q. B. 314, 316; 61 L. J. Q. B. 463), and substantially the same principles of pleading apply to it as would be applicable to a statement of claim in such cross-action. As to the rules with regard to pleading in general, see "Pleading in General," ante, p. 6. By O. XXI. r. 10, Where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he shall, in his statement of defence, state specifically that he does so by way of counterclaim." A counterclaim should have the word "Counterclaim" prefixed to it as a heading, so as to distinguish it from what is pleaded merely as matter of defence to the plaintiff's claim (see O. XIX. rr. 5, 11, and the forms cited in the text), though it seems that the mere absence of such heading would not invalidate a counterclaim which was otherwise properly pleaded (see Lees v. Patterson, 7 Ch. D. 866; 47 L. J. Ch. 616, decided under the Rules of 1875). A counterclaim must contain a statement in a summary form of the material facts on which the defendant relies for his counterclaim, but not the evidence by which they are to be proved, and such statement must, when necessary, be divided into paragraphs numbered consecutively. (See O. XIX. r. 4, cited "Pleading in General," ante, p. 7.) Where the defendant pleads both a defence and a counterclaim, the paragraphs of the counterclaim are usually numbered as though they were a continuation of the paragraphs of the defence. It is provided by Ô. XX. r. 7, that where the defendant relies upon several distinct grounds of counterclaim founded upon separate and distinct facts, such grounds of counterclaim must be stated, as far as may be, separately and distinctly. (See "Pleading in General," ante, p. 8.) The facts pleaded as supporting a counterclaim must be such as would be sufficient to support an action brought by the defendant for the same cause of complaint. (See Birmingham Estates Co. v. Smith, 13 Ch. D. 506; 49 L. J. Ch. 251; Gaslight, &c. Co. v. Holloway, 52 L. T. 434; McGowan v. Middleton, 11 Q. B. D. 464; 52 L. J. Q. B. 355.) If they are not such as would be sufficient for that purpose, the counterclaim will be open to an objection in point of law under O. XXV. r. 2. (See post, p. 598; "Replies to Counterclaims," infra, p. 583.) The defendant is not allowed to rely for his counterclaim upon matters which have been stated simply as grounds of defence to the plaintiff's claim, and are not specifically referred to in the counterclaim (see Hillman v. Mayhew, 24 W. R. 485; Crowe v. Barnicot, 6 Ch. D. 753; 46 L. J. Ch. Counterclaim. The defendant repeats paragraph [2] of his defence, and says that: 3. [To be filled up. } See the preceding form of counterclaim, 4. and the forms of counterclaims, infra. The defendant counterclaims: [Here state the amount of the debt or damages, or the relief or remedy, claimed. See the preceding form and the forms of counterclaims, infra.] (Signed) L. M. [See the preceding form.] Delivered the of 18-. 855; and Lees v. Patterson, supra), but he may by reference incorporate in his counterclaim allegations already made in the defence (see the form above cited from the R. S. C. 1883, App. D., Sect. I., and see Birmingham Estates Co. v. Smith, 13 Ch. D. 506; 49 L. J. Ch. 251; Benbow v. Low, 13 Ch. D. 553; 49 L. J. Ch. 259). Particulars of the matters relied upon as supporting the counterclaim must be given in all cases where they are required to be given by O. XIX. r. 6, and, if sufficient particulars are not given, an order may be made for a further and better statement of the nature of the counterclaim, or for further and better particulars of the matters therein stated. (See 0. XIX. rr. 6, 7, cited ante, p. 37.) A counterclaim, like a statement of claim, must state specifically the claim made or relief sought by the defendant, though where the defendant has specifically stated the particular relief claimed by the counterclaim, it is unnecessary for him to add a claim for general or other relief, which may always be given, as the Court or a judge may think just, to the same extent as if it had been asked for. (See O. XX. r. 6.) Where the defendant pleads no other defence than a counterclaim, the allegations of fact contained in the statement of claim (except allegations as to damages) will be taken to be admitted by him (0. XIX. rr. 13, 17; cited ante, p. 548), but the Court does not in its discretion make an order for judgment under O. XXXII. r. 6, in respect of a pecuniary claim, where there is a substantial counterclaim for debt or damages to an equal or greater amount (Mersey Steamship Co. v. Shuttleworth, 10 Q. B. D. 468; 11 Zb. 531; 52 L. J. Q. B. 522). By O. XXVIII. r. 3, "A defendant who has set up any counterclaim or set-off may, without any leave, amend such counterclaim or set-off at any time before the expiration of the time allowed him for answering the reply and before such answer, or in case there be no reply, then at any time before the expiration of twenty-eight days from defence." It seems clear that this rule, though it speaks of "set-off," applies only to matters pleaded by way of counterclaim, and that where a strict set-off is pleaded merely by way of defence, the defendant, if he wishes to amend it, must obtain leave to do so in the ordinary manner under O. XXVIII. r. 1. (See ante, p. 14.) The time allowed for delivering to the plaintiff a defence containing a counterclaim is the same as in other cases. (See ante, p. 554.) A counterclaim, like a defence of set-off (see "Set-off," post, p. 825), may (subject to the power of disallowance or exclusion under O. XIX. Counterclaim for a Debt for Money lent, and for Damages for Non-delivery of Goods sold. (See R. S. C. 1883, App. D., Sect. VIII.) Counterclaim. 1. The defendant lent £500 to the plaintiff on 1st May, 1882. The defendant counterclaims £500. 2. The defendant has suffered damage by the plaintiff's breach of a contract for the sale and delivery by the plaintiff to the defendant of 5,000 tons of Merthyr steam coal at 18s. 6d. per ton F.O.B. at Cardiff by equal monthly deliveries over the first five months of 1882. 3. The April and May instalments were not delivered. Particulars of the damages: Difference between market price in April and The defendant counterclaims £250. £ 8. d. 250 0 0 r. 3, and O. XXI. r. 15) be pleaded in respect of matters arising after action brought (Jud. Act, 1873, s. 24 (3) (7); Lees v. Patterson, 7 Ch. D. 866; 47 L. J. Ch. 616; Beddall v. Maitland, 17 Ch. D. 174; 50 L. J. Ch. 401; Ellis v. Munson, 35 L. T. 585; Toke v. Andrews, 8 Q. B. D. 428; 51 L. J. Q. B. 281; Wood v. Goodwin, W. N. 1884, p. 17). Where matters arising after action are relied upon as a substantive ground of counterclaim, the counterclaim must show, either by express statement or by the dates therein mentioned, &c., that the matters relied upon arose after action brought, as it will otherwise be deemed to have been pleaded in respect of matters arising before action. (Ellis v. Munson, supra; and see "Defences arising after Action," ante, p. 554.) If the counterclaim is ambiguous in this respect, the plaintiff may apply to have it amended. (lb.) 66 Where a counterclaim in the nature of a pecuniary set-off to an amount exceeding the plaintiff's claim was pleaded as arising after action, it was held that the plaintiff was at liberty to deliver a confession of it under 0. XXIV. r. 3, and might thereupon, if no order was made to the contrary, sign judgment for his costs under that rule (Ellis v. Munson, supra; Wood v. Goodwin, supra; see Confession," post, p. 686), and that the defendant was then entitled to obtain judgment under O. XXXII. r. 6, for the amount by which his counterclaim overtopped the plaintiff's claim (Wood v. Goodwin, supra; see Ellis v. Munson, supra). But the procedure under r. 3 of O. XXIV. does not appear to be properly applicable to the case of mere unliquidated cross-claims. For a Counterclaim against a Solicitor for Damages for Negligence: see a Statement of Claim, "Solicitors," ante, p. 353. Defence and Counterclaim in an Action for the Price of Goods sold, on the ground of Breach of Warranty: see" Sale of Goods," post, p. 814. Defence and Counterclaim in an Action for Work done and Materials provided under a Building Contract: see the Form cited from the R. S. C. 1883, App. E., Sect. II., post, p. 853. Defence and Counterclaim in an Action for Trespass to Land, the Defence justifying the Entry for the purpose of removing an unlawful Obstruction, and the Counterclaim claiming Damages for the Obstruction: see "Trespass to Land," post, p. 987. For Forms of Defences of Set-off, see "Set-off" post, pp. 826 et seq. General Form of Reply to a Defence and Counterclaim (c). (See R. S. C. 1883, App. E., Sect. I.) The plaintiff, as to the defence, says that : Here state the reply to the matter alleged by way of defence: see "Replies," ante, p. 561.] (c) Replies to Counterclaims.]-As to the title and formal parts of a reply to a counterclaim, see O. XIX. r. 11, ante, p. 6, and the forms in the text; and see O. XXI. r. 11, cited post, p. 589, as to the further title to |