Directory_and_Chronicle_1879 — Page 620

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CODE OF CIVIL PROCEDURE-HONGKONG.

hearing, shall have regard to the fact of the payment into Court having been made and not accepted.

Set-off.

XXXVI.—A defence of set-off to a claim for money, whether in debt or in damages, must be accompanied by a statement of the particulars of the set-off; and if pleaded as a sole defence, unless extending to the whole amount of the plaintiff's claim, must also be accompanied by payment into Court of the amount to which, on the defendant's showing, the plaintiff is entitled; and in default 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.

2.- 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.

Counter-Claim.

XXXVII.-Where a defendant in his answer raises any specific defence, and it appears to the Court that on such defence 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 defeudant, 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, 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.

Specific Answer.

XXXVIII.—Where the defendant does not answer (an answer not being dispensed with in manner aforesaid), or put in an answer amounting only to a general denial of the plaintiff's claim, the plaintiff may apply by summons for an order to compel him to answer specifically to the several material allegations in the petition; and the Court, if such allegations are briefly, positively, separately and distinctly made, and it thinks that justice so requires, may grant such an order.

2. The defendant shall, within the time limited by such order, put in his answer accordingly, and shall therein answer the several material allegations in the petition, either admitting or denying the truth of such allegations seriatim, as the truth or falsehood of each is within his knowledge, or (as the case may be), stating as to any one or more of the allegations that he does not know whether such allegation or allegations is or are true or otherwise.

3.-The defendant so answering may also set up by such answer any defence to the suit, and may explain away the effect of any admission therein made by any other allegation of facts.

Replication.

XXXIX. No replication or other pleading after answer shall be allowed, except by special leave of the Court.

2.-Where the plaintiff considers the contents of the answer to be such as to render an amendment of the petition necessary or desirable, he may obtain ex parte an order to amend the petition, on satisfying the Court that the amendment is not intended for the purpose of delay or vexation, but because it is considered to be material for the plaintiff's case.

3.-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.

XL.-At any time before or at the hearing, the Court may, if it thinks fit, the application of any party, or of its own motion, proceed to ascertain and demine what are the material questions in controversy between the parties, alth