The like, to a Reply to a Defence and Counterclaim, where the Plaintiff has replied specially to the Defence. Rejoinder. The defendant, as to the plaintiff's reply to the defence, says that: 1. [To be filled in. See ante, pp. 563, 586.] The defendant, as to the plaintiff's reply to the counterclaim, says that: 2. [To be filled in. See the preceding form]. General Form of Defence and Counterclaim, where a Person not a Party to the original Action is added as a Defendant along with the Plaintiff to the Counterclaim (see note (a), p. 575). 18. B. No. In the High Court of Justice, Between A. B., Plaintiff, C. D., Defendant, And between the said C. D., Plaintiff, and the said A. B. and E. F., Defendants, (by counterclaim). Defence. The defendant says that: 1. 2. [Here state the grounds of defence to the plaintiff's claim Counterclaim. The defendant says that: [Here state in a summary form, in the same manner as in a statement of claim in an action brought by the defendant against the plaintiff and the third person, the facts relied upon by the defendant for the claims made against them by his counterclaim, dividing the statement, where necessary, into separate paragraphs numbered consecutively. See the general forms of counterclaim above given. The plaintiff in the action should continue to be spoken of as "the plaintiff" in the body of the counterclaim, and similarly the counterclaiming defendant should continue to call himself "the defendant" or, if he is one of several defendants, "the defendant C. D."] The defendant by this counterclaim claims against the said A. B. and E. F.-[Here state the amount of debt or damages, or the remedy or relief claimed by the counterclaim: see the general forms of counterclaim above given. If any distinct part of the claims made by the counterclaim are against one only of the defendants to the counterclaim, such part should be stated as being made against that person.] (Signed) L. M. Delivered the of, 18. General Form of Defence and Counterclaim by one of two or more Defendants who has joined a Co-defendant as a Defendant along with the Plaintiff to a Counterclaim (d). 18. B. No. In the High Court of Justice, Queen's Bench Division. Between A. B., Plaintiff, and C. D. [E. F.] and G. H., Defendants, (by original action); And between the said C. D., Plaintiff, and the said A. B. and the said G. H., Defendants (by counterclaim). Defence of the above-named defendant C. D. The defendant C. D. says that: [The same as in the preceding form of defence.] (d) See "Parties to Counterclaims," ante, p. 575. The power of adding a third party as co-defendant to a counterclaim is distinct from the third party procedure under O. XVI. rr. 48-55. (See "Third Party," post, p. 592.) Where a third person or a co-defendant is added as a defendant along with the plaintiff to a counterclaim, the relief sought against such third person or co-defendant must be "relief relating to or connected with the original subject of the cause" (Jud. Act, 1873, s. 24 (3), cited ante, p. 371; see Padwick v. Scott, 2 Ch. D. 736; 45 L. J. Ch. 350; Turner v. Hednesford Counterclaim. The defendant C. D. says that : 2. } 1. [Here state in a summary form, in the same manner as in a statement of claim in an action brought by the counterclaiming defendant against his co-defendant and the plaintiff, the facts relied on for the claims made against them Gas Co., 3 Ex. D. 145; 47 L. J. Ex. 296; Barber v. Blaiberg, 19 Ch. D. 473; 51 L. J. Ch. 509), and such "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 must be relief which in some way concerns or involves the plaintiff (Treleaven v. Bray, 45 L. J. Ch. 113; Dear v. Sworder, 4 Ch. D. 476; Harris v. Gamble, 6 Ch. D. 748; 46 L. J. Ch. 768). The defendant cannot add a third person as defendant to a counterclaim which merely claims relief against such third person or against the plaintiff in the alternative (Central African Co. v. Grove, 48 L. J. Ex. 510); and it has been held that a person cannot be joined as defendant along with the plaintiff to a counterclaim where relief is only claimed against the plaintiff and such person in one of two inconsistent alternatives (Evans v. Buck, 4 Ch. D. 432; see Child v. Stenning, 5 Ch. D. 695; 48 L. J. Ch. 392). But where a counterclaim relates to the plaintiff's cause of action, and raises a question between the defendant and the plaintiff along with the person so added as a party, it is not necessary that the person so added should be one who could have joined as a co-plaintiff in the plaintiff's claim, or that the counterclaim should show a joint liability on the part of the plaintiff and of the person so added. (Turner v. Hednesford Gas Co., supra.) By O. XXI. r. 11, "Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim setting forth the names of all the persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver 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." (See the forms in the text; and see also the form given under the repealed Rules of 1875, App. C., No. 14.) Although in the further title " which is required to be added under the above rule the counterclaiming defendant is described as plaintiff by counterclaim, and the plaintiff and the person joined along with him are described as defendants by counterclaim, this method of description should not be followed in the body of the pleading, as it might produce confusion, and it is better that in the body of the counterclaim the defendant in the action should continue to be described as the "defendant," or the "defendant C. D.," as the case may be, and the plaintiff in the action as "the plaintiff." As to the time prescribed for delivery of a statement of defence to the plaintiff, see Time for delivering Defence," ante, p. 553. 66 By O. XXI. r. 12, "Where any such person as in the last preceding rule mentioned is not a party to the action, he shall be summoned to appear by being served with a copy of the defence." by the counterclaim: see the last preceding form of counterclaim. The co-defendant who is joined as a defendant to the counterclaim may be called "the defendant G. H."] The defendant C. D. by this counterclaim claims against the said A. B. and G. H.-[Here state the amount of debt or damages, or the remedy or relief claimed by the counterclaim, distinguishing, if necessary, as to claims made against either of the defendants to the counterclaim separately from the other: see the last preceding form of Counterclaim.] (Signed) L. M. As to appearance by such third party, see O. XXI. r. 13; Fraser v. Cooper, 23 Ch. D. 685; 52 L. J. Ch. 684. A third person or co-defendant who is added as a defendant along with the plaintiff to a counterclaim may reply to the counterclaim any matters which would be a defence to a statement of claim in an action brought by the defendant for the same cause of complaint (see Jud. Act, 1873, s. 24 (3), above cited), and in general such reply will be subject to the rules applicable to defences (see O. XXIII. r. 4, cited " Replies to Counterclaims," ante, p. 582). As to the time allowed to such third person or co-defendant for delivering his reply, it is provided by O. XXI. r. 14, that "Any person named in a defence as a party to a counterclaim thereby made may deliver a reply within the time within which he might deliver a defence if it were a statement of claim. (See "Time for delivering Defence," ante, p. 553.) Where a person who has been joined as a defendant along with the plaintiff to a counterclaim makes default in delivering a reply thereto within the prescribed period, the counterclaiming defendant may, in general, apply for judgment against him on the counterclaim, under O. XXVII. or under O. XXXII. r. 6. (Street v. Crump, 25 Ch. D. 68.) It was held under the repealed Rules of 1875, that although a person who had been made a defendant along with the plaintiff to a counterclaim was entitled to plead in his reply a strict set-off by way of defence, he could not in his reply set up a cross-claim against the defendant by way of counterclaim. (Street v. Gover, 2 Q. B. D. 498; 46 L. J. Q. B. 582.) This decision, though questioned in Toke v. Andrews, supra, has since been approved by the Court of Appeal in Alcoy v. Greenhill, (1896) 1 Ch. 19; 65 L. J. Ch. 99. (See also O. XXIII. r. 4, above cited.) If the grounds pleaded as supporting the counterclaim are not such as would support an action for the same cause, a third person or co-defendant added as a defendant to the counterclaim may plead in his reply an objection in point of law. (Evans v. Buck, 4 Ch. D. 432; Child v. Stenning, 5 Ch. D. 695; 48 L. J. Ch. 392; and see ante, p. 383.) Reply by a third Person, who is not a Party to the original Action, to a Counterclaim pleaded against him as a Co-defendant with the Plaintiff (d). [Heading as in the Form next but one preceding.] Reply of the above-named E. F. to the counterclaim. 1. The above-named E. F., who is one of the defendants to the counterclaim herein, says, as to the said counterclaim, that :[Here state the grounds of reply relied upon by the party pleading the reply: see the general form of reply to a counterclaim, ante, p. 584.] 2. 3. &c. (Signed) L. M. A like Reply by one of the Defendants to the original Action who has been joined as a Defendant along with the Plaintiff to a Counterclaim (d). [Heading as in the Form next but one preceding.] Reply of the defendant G. H. to the counterclaim. The defendant G. H., as to the counterclaim herein, says [Proceed as in the preceding form of reply.] (d) See preceding note. |