CO129-109 - Public Offices - 1865 — Page 111

×â

Costs.

Cross suit.

Answer.

Effect.

Acceptance by plaintiff.

Non-accept-

ance.

Costs.

Cross petition in same Suit.

20

of such payment the defendant shall be liable to bear the costs of the suit, even if he succeeds in his defence to the extent of the set-off pleaded.

Where a defendant in his answer raises a defence by way of set-off which, in the opinion of the Court, is not admissible as set-off, the Court may either before or at the hearing, on his application, give him liberty to withdraw such defence and to file a cross petition, and may make such order for the hearing of the suit and cross suit together or otherwise, on such terms as to costs and other matters as seem just.

Payment into Court.

54. Payment into Court by the defendant must be accom- panied by an answer. The answer must state distinctly that the money paid in is paid in in satisfaction of the plaintiff's claim generally, or (as the case may be) in satisfaction of some specific part of the plaintiff's claim, where the claim is stated in the petition for distinct sums or in respect of distinct matters. Payment into Court, whether made in satisfaction of the plaintiff's claim generally or in satisfaction of some specific part thereof, operates as an admission of liability to the extent of the amount paid in and no more, and for no other purpose.

Where the defendant pays money into Court the plaintiff shall be at liberty to accept the same in full satisfaction and discharge of the cause of suit in respect of which it is paid in; and in that case the plaintiff may forthwith apply by motion for payment of the money out of Court to him; and on the hearing of the motion the Court shall make such order as to stay of further proceedings in the suit in whole or in part, and as to costs and other matters, as seems just.

If the plaintiff does not so apply he shall be considered as insisting that he has sustained damages to a greater amount,or (as the case may be) that the defendant was and is indebted to him in a greater amount, than the sum paid in; and in that case the Court, in determining the suit and disposing of costs at the hearing, shall have regard to the fact of the payment into Court having been made and not accepted.

Counter-claim.

55. Where a defendant in his answer raises any specific defence, and it appears to the Court that on such defences being established he may be entitled to relief against the plaintiff in respect of the subject-matter of the suit, the Court may, on the application of the defendant either before or at the hearing, if under the circumstances of any case it thinks fit, give liberty to him to file a counter-claim by a cross-petition in the same suit

21

asking for relief against the plaintiff, and may make such order for the hearing of the suit and counter-claim together or otherwise, and in such manner and on such terms as to costs and other matters as seem just, and may, if in any case it seems fit, require the plaintiff to give security to the satisfaction of the Court (by deposit or otherwise) to abide by and perform the decision of the Court on the counter-claim.

Proceedings after Answer.

56. No replication or other pleading after answer is No pleading allowed, except by special leave of the Court.

after answer.

57. Where the plaintiff considers the contents of the answer Amendment to be such as to render an amendment of the petition necessary after answer.

of petition

or desirable, he may obtain ex parte an order to amend the peti- tion, on satisfying the Court that the amendment is not intended for the purpose of delay or vexation, but because it is con- sidered to be material for the plaintiff's case.

Notice of the amendment shall be given to the defendant within such time and in such manner as the Court in each case directs.

Settlement of Issues.

58. At any time before or at the hearing the Court may, if Before or at it thinks fit, on the application of any party or of its own

hearing. motion, proceed to ascertain and determine what are the material questions in controversy between the parties, although the same are not distinctly or properly raised by the pleadings, and may reduce such questions into writing and settle them in the form of issues; which issues when settled may state questions of law on admitted facts, or questions of disputed fact,

or questions partly of the one kind and partly of the other.

In settling issues the Court may order or allow the striking out Amendment

or amendment of any pleading or part of a pleading so that of pleadings.

the pleadings may finally correspond with the issues settled, and may order or allow the striking out or amendment of any pleading or part of a pleading that appears to be so framed as to prejudice, embarrass, or delay the trial of the cause,

Where the application to the Court to settle issues is made Application

at any stage of the proceedings at which all parties are viva voce; actually present before the Court either in person or by counsel

or attorney, or at the hearing, the application may be made vivâ roce, and may be disposed of at once, otherwise the application on summons. must be made and disposed of on summons.

Reference of Account,

59. Where it appears to the Court at any time after suit In what cases. instituted, that the question in dispute relates either wholly or in

109