Directory_and_Chronicle_1901 — Page 380

Non-acceptance thereof.

Particulars.

par. 8.]

322

CODE OF CIVIL PROCEDURE—HONGKONG

4.-If the plaintiff does not 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.

Set-of

XXXVI. A defence of set-off to claim for money, whether in debt [See post s. 67, 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.

Payment into Court.

Costs.

Cross action.

Leave to file Cross-petition in same Suit,

Security.

Summons to compel.

Nature of such Answer.

Further Defence.

By leave of the Court.

Amendment of Petition after Answer.

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 inake such order for 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 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, 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 seeins 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 puts in an answer amount- ing only to a general denial of the plaintiff's claim, the plaintiff may apply by summous for an order to compel him to answer specifically to the several material allegations in the petition, and the Court, if such allega- tions 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 allega- tions 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

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