Directory_and_Chronicle_1871 — Page 367

Page 367 Page 367

Page 367 Page 367

IN CHINA AND JAPAN.

43

The application when made, unless consented to, must be sup- ported by affidavit or by oral evidence on oath, showing that there is reasonable ground for the application, and that it is not made for the purpose of delay.

45. Where a defendant does not put in any answer he shall not Effect of defendant not be taken as admitting the allegations of the petition, or the plaintiff's answering. right to the relief sought; and at the hearing (even though such defendant does not appear) the plaintiff must open his case, and ad- duce evidence in support of it, and take such judgment as to the Court appears just.

time allowed.

46. A defendant neglecting to put in an answer within the time leave to auswer after or further time allowed, shall not be at liberty to put in any answer without leave of the Court.

The Court may grant such leave by order on the ex parte appli- cation of the defendant at any time before the plaintiff has set down the cause, or applied to have it set down for hearing.

Where the cause has been set down or the plaintiff has applied to have it set down for hearing, the Court shall not grant such leave except on return of a summons to the plaintiff, giving notice of the defendant's application, and on such terms as to costs and other matters as seem just.

aDswer.

47. The answer (Form 6,) shall show the nature of the defend- Form and contents of ant's defence to the claim set up by the petition, but may not set forth the evidence by which such defence is intended to be supported.

It should be clear and precise, and not introduce matter irrele- vant to the suit, and the rules before laid down respecting the setting out of documents and the contents of a petition generally shall be observed in answer, mutatis mutandis.

It must deny all such material allegations in the petition as the defendant intends to deny at the hearing.

Where the answer denies an allegation of fact, it must deny it directly, and not by way of negative pregnant: as (for example) where it is alleged that the defendant has received a sum of money, the answer must deny that he has received that sum or any part thereof, or else set forth what part he has received. And so, where a matter of fact is alleged in the petition, with certain circum- stances, the answer must not deny it literally as it is alleged, but must answer the point of substance positively and certainly.

The answer must specifically admit such material allegation in the petition as the defendant knows to be true, or desires to be taken as admitted. Such admission, if plain and specific, will prevent the plaintiff from obtaining the cost of proving at the hear- ing any matters of fact so admitted.

All material allegations of fact admitted by a defendant shall be taken as established against him, without proof thereof by the plaintiff at the hearing. But the plaintiff shall be bound to prove as against each defendant all allegations of fact not admitted by him, or not stated by him to be true to his belief.

The answer must allege any matter of fact not stated in the petition on which the defendant relies in defence, as establishing, for instance, fraud on the part of the plaintiff, or showing that the plaintiff's right to recover, or to any relief capable of being granted on the petition, has not yet accrued, or is released or barred or otherwise gone.

Page 367 Page 367

Page 367 Page 367