SET-OFF, or Counter-claim-continued.

(b) In the alternative.

(2.) And may also ask for general relief (Ord. 19, r. 8).

Where defendant relies upon several distinct grounds of set-off or counter-claim, founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly (Ord. 19, r. 9).

Where any defendant seeks to rely upon any facts as · supporting a right of set-off or counter-claim, he shall, in his statement of defence, state specifically, that he does so by way of set-off or counter-claim (Ord. 19, r. 10).

Judgment for defendant on counter-claim. Where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the Court may, if the balance is in favour of the defendant,

(a) Give judgment for the defendant for such balance; or

(b) Adjudge to the defendant such relief as he may be entitled to upon the merits of the case (Ord. 22, r. 10).

[The "balance" here mentioned means the balance which results upon the hearing of the action (Rolfe v. Maclaren, 3 Ch. Div. 106).]

Questions between defendant and third parties. Where a defendant sets up any counterclaim which raises questions between himself and the plaintiff, along with any other person or persons, he shall add to the title of his defence a further title similar to the title in a statement of complaint, setting forth the names of all the persons who, if such counter-claim were to be enforced by cross action, would be defendants to such cross action (Ord. 22, r. 5).

Under the above rule the defendant is to deliver his defence to such of them as are parties to the action

SET-OFF or Counter-claim-continued.

within the period within which he is required to deliver it to the plaintiff (Ord. 22, r. 5).

When any such third person is not a party to the action, he shall be summoned to appear by being served with a copy of the defence, and such service shall be regulated by the same rules as are prescribed as to service of writs (Ord. 22, r. 6); and any person, not a defendant to the action, who is served with a defence and counter-claim as aforesaid, must appear thereto as if he had been served with a writ of summons (Ord. 22, r. 7).

Any person named in a defence, as a party to a counter-claim thereby made, may deliver a reply within the time [eight days] within which he might deliver a defence if it were a statement of claim. Demurrer (see p. 44).

APPLICATION by Plaintiff to exclude Counterclaim.

A.C.L.

On the application of the plaintiff, before trial, the Court or Judge may refuse permission to the defendant to avail himself of a set-off or counter-claim, if in the opinion of the Court or Judge—

(a) Such set-off or counter-claim cannot be conveniently disposed of in the pending action,

or

(b) Ought not to be allowed.

Where a defendant sets up a counter-claim, if the plaintiff or any other person named as party to such counter-claim, contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may at any time before reply apply to the Court or a Judge for an order that such counter-claim be excluded, and the Court or a Judge may, on the hearing of such application, make such order as shall be just (Ord. 22, r. 9).

Ꭰ

DISCOVERY and Inspection (Plaintiff's Inter

rogatories).

The plaintiff may

(a) At the time of delivering his statement of claim, or

(b) At any subsequent time not later than the close of the pleadings

without any order for that purpose, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such persons is required to answer (Ord. 31, r. 1).

DISCOVERY and Inspection (Defendant's Interrogatories).

The defendant may—

(a) At the time of delivering his defence, or
(b) At any subsequent time not later than the
close of the pleadings—

without any order, deliver interrogatories for the exami-
nation of the opposite party, with a similar note at the
foot thereof, stating which of such interrogatories such
person is required to answer (Ord. 31, r. 1).

And either party may, at any time, by leave of the Court or a Judge, deliver interrogatories in like manner (See Ord. 31, r. 1).

Proviso. No party shall deliver more than one set

of interrogatories to the same party without an order for that purpose (Ord. 31, r. 1). Interrogatories to body corporate or joint stock company. If any party to an action be

(a) A body corporate; or

(b) A joint stock company (whether incorporated

or not); or

empowered by law to sue or be sued, whether in its own

DISCOVERY and Inspection (Defendant's Interrogatories)—cont. name or in the name of any officer or other person, any opposite party may apply at Chambers for an order to deliver interrogatories to any member-or officer-of such corporation, company or body, and an order may be made accordingly (Ord. 31, r. 4).

Any objection to answering any one or more interrogatories may be made at Chambers, within four days after service of the interrogatories, in the affidavit answering them, on the ground

1. That it is scandalous; or

2. Irrelevant; or

3. Is not put bonâ fide for the purposes of the action; or

4. That the matter inquired after is not sufficiently material at that stage of the action;

or

5. On any other ground (Ord. 31, r. 5).

An application may be made, in the same way and within the same time, to set aside the interrogatories, on the ground that—

1. They have been exhibited unreasonably; or 2. Vexatiously; or

3. To strike out any interrogatory or interrogatories on the ground that they are scandalous (Ord. 31, r. 5).

Answering interrogatories. They shall be answered by affidavit to be filed

(a) Within ten days; or

(b) Within such further time as a Judge may allow (Ord. 31, r. 6).

And the affidavit in answer shall be printed if it exceeds ten folios (Ord. 31, r. 7).

No exceptions are to be taken to any affidavit in

DISCOVERY and Inspection (Defendant's Interrogatories)—cont.

answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court or Judge

(a) On motion; or

(b) By summons (Ord. 31, r. 9).

If any person interrogated—

(a) Omits to answer; or

(b) Answers insufficiently,

the party interrogating may apply to the Court or a
Judge for an order requiring him to answer, or answer
further, as the case may be, and an order may be made
requiring him to answer, or answer further, either—
1. By affidavit; or

2. By vivâ voce examination,

as the Judge may direct (Ord. 31, r. 10).

[The application is made by summons before a master, and not by motion (Chesterfield Collieries Company v. Black, W. N., 1876, 65).]

Non-compliance with order to answer. If any party fails to comply with any order to answer interrogatories he shall be liable to attachment (Ord. 31, r. 20).

[The power given to the Court is only exercised in the last resort (Hartley v. Owen, 34 L. T. 752; Twycross v. Grant, W. N., 1875, 201, 225).]

FAILURE by Plaintiff to answer Interrogatories. If the plaintiff fails to comply with any order to answer interrogatories, he is liable to have his action dismissed for want of prosecution (Ord. 31, r. 20).

[The Court is not bound to dismiss the action

(Hartley v. Owen, supra); but it will usually be dismissed if the plaintiff makes default (Republic of Liberia v. Roye, L. R., 9 Ch. 560).]