Parliament on the subject; and has, since the statutes, CHAPTER been exercised in cases which they will not reach (†). Thus, where A. S. directed her bankers to invest a sum of money in the public funds, which they led her to believe they had done, when in fact they had not, A. S. afterwards joining her brother, J. S., in a joint and several note to the bankers for money advanced by them to J. S., and the bankers failing, Lord Eldon directed the sum due to A. S. to be set off (u) against the demand in a suit by the assignees against J. S. Equity would not relieve a party who neglected to plead a set-off at law (r). But if the set-off were a mere equitable demand, not available at law, equity would assist (y). By the Judicature Act, 1873, sect. 24, sub-sect. 3, power was given to the Court to grant to any defendant all such relief as he shall properly have claimed by his pleading, and as the Court might have granted in any suit by the defendant against the plaintiff. And by Ord. XIX. r. 3, a defendant in any action may set off or counter-claim against the plaintiff any right or claim, whether such set-off or counter-claim sound in damages or not, and such set-off or counter-claim shall have the same effect as a cross-action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court or a judge may, on the application of the plaintiff before trial, prevent inconvenience by refusing permission to the defendant to avail himself of the set-off or counter-claim in that particular action (z). The relief claimed by a defendant, or the counter-claim made by him, must be stated specifically, and when he relies upon any facts to support such set-off or counterclaim, he must, in his statement of defence, state specifically that he does so by way of set-off or counter-claim (a). (t) Story's Equity Jurisprudence, s. 1435. (u) Ex parte Sterens, 11 Ves. 24; and see Er parte Hansom, 12 Ves. 346; 8 R. R. 335. (r) Er parte Ross, Buck. 127. (y) Townrow v. Benson, 3 Mad. 203. An equitable set-off could be pleaded by way of equitable plea in an action at law. And see Cockrane v. Green, 9 C. B., N. S. 443; 30 L. J., C. P. 97. (*) See also Ord. XXI. r. 15. The indorsee of an overdue note is not liable to the set-off of Set-off is a defence to the action, (@) Ord. XXI. r. 10, and Forms, XXVI. Set-off and counter-claim under Judicature Act. CHAPTER REPLY. To plea denying con sideration. Pleading an estoppel. Distributive reply. Where a defendant raises a counter-claim against the plaintiff along with others, he must set forth in the title of his defence the names of all such persons, and must deliver his defence to such of them as are parties to the action, within the prescribed period (b). Even though the original is stayed, discontinued, or dismissed, the counter-claim may be proceeded with (c). Should the set-off or counter-claim be established for a greater amount than that claimed by the plaintiff, the defendant may have judgment in his favour for such balance (d). It will thus be seen that a defendant in an action may avail himself of any claim he may have against the plaintiff which would support a cross action, and is not confined to claims against the plaintiff solely, but may join those against the plaintiff jointly with others, provided he take the proper steps in pleading. A party named in a counter-claim cannot counter-claim against the defendant (e). The plaintiff has twenty-one days from delivery of defence to reply (ƒ), and where a counter-claim is pleaded a reply thereto is subject to the rules applicable to defence (g). To a plea denying consideration a replication simply averring consideration was good (h). And even if the plaintiff in his replication set out the particular consideration, and concluded to the country under the old form of pleading, he was not bound to prove it (i). Where a party to a bill, as an acceptor or indorser is concluded from denying a fact, as, for example, the drawing or a prior indorsement, the estoppel must be specially pleaded (k), as the plaintiff may not now demur. Where one defence is pleaded to several notes or bills, and the plaintiff makes but one reply to the defence, it Roberts, 1 Bing. N. C. 469; 1 (i) Low v. Burrows, 2 Ad. & E. 483; 4 N. & M. 366; Batley v. Catterall, 1 M. & Rob. 379. (k) Sanderson v. Colman, 4 M. & G. 209; Armani v. Castrique, 13 M. & W. 443. Now, perhaps, the facts should be stated showing the estoppel and the allegations to which it applies. Ord. XXV. rr. 1, 2, 3. would probably be construed distributively, as it would CHAPTER formerly have been (1). XXVI. Interrogatories, discovery of documents, and inspection Interrogathereof are now regulated by Ords. XXX. r. 2, and XXXI. tories, &c. Demurrers are abolished, and points of law are to be Demurrer raised on the pleadings (m). abolished. New assignments are no longer allowed, their purpose Also new being now effected by way of reply or amended statement of assignments. claim (n); and Ord. XXIV. regulates pleading of matters arising pending the action. PLICITY, CON The Court will sometimes consolidate actions on bills MULTIwhere the parties and the question to be tried are the same (o). And the power so exercised is expressly continued by the new rules (p). And where many actions are pending, if the same question is involved, though the parties be not the same, a test action may be selected and tried in the first instance (q). If the holder bring concurrent actions against the acceptor, the drawer and the indorsers, the Court will stay the proceedings in any one of those actions on payment of the amount of the bill and of the costs in that particular action; but they would not formerly have stayed proceedings in an action against the acceptor, except upon. the terms of his paying the costs in all the other actions, he being the original defaulter (r). For, though no action lies against the acceptor for these costs (s), yet when he came to ask a favour, as a stay of proceedings, the Court might with propriety have put him under terms. Afterwards, however, by rule of all the Courts, it was ordered that in any action against the acceptor of a bill or maker of a note, the defendant may stay proceedings, on payment of debt and costs in that action only (t). 691; Windham v. Wither, 1 Str. (8) Dawson v. Morgan, 9 B. & (t) R. T. T. 1 Vict., and Hil. T. 16 Vict.; and see Cornes v. Taylor, 10 Exch. 441; and Jud. Act, 1873 (36 & 37 Vict. c. 66), s. 24 (5). And as to saving of prior consistent procedure, Jud. Act, 1875, s. 21; Ord. LXXII. r. 2. SOLIDATION CHAPTER MODE OF TRIAL. Right to begin. If the bill or note were obtained by the plaintiff from the defendant without consideration, on an affidavit to that effect by the defendant, the Court will stay the proceedings; but, where there are contradictory affidavits, the Court will not interfere in this summary way, but put the defendant to insist on it as a defence on the trial (u). Where an indorsement was made on a promissory note by the plaintiff, the payee, that if the interest were paid on stipulated days during her life the note should be given up, the Court refused to stay proceedings on payment cf interest and costs (x). Unless a party to the action applies for a trial with a jury of the cause, or any issue of fact, and obtains an order, the mode of trial will be by judge without a jury (y), subject to the power of the Court or a judge to order otherwise in cases of accounts not conveniently triable by jury (z), or where the cause was, without cousent, otherwise triable, before 1873 (a). If there is only one issue the right to begin is with the party upon whom the affirmative lies (b). If there be more than one issue the plaintiff is entitled to begin if the affirmative of any one issue is upon him (c), even though, in certain cases, the amount of the unliquidated damages (d) is the only question upon which the burthen of (d) As the right to begin is sometimes also an onerous necessity (see Edwards v. Jones, 7 C. & P. 633), it is important to bear in mind, that under the old practice the mere fact that damages, though unliquidated, were in dispute, did not entitle the plaintiff to begin. The question was, on whom was the affirmative (or, more correctly, the onus probandi) on the record; and the new Rule of 1833 did not affect that practice in actions of contract. Per Coleridge, J., in Lewis v. Wells, 7 C. & P. 221. The effect of that rule, as expounded by further decisions, (Ibid. 262; Harrison v. Gould, Ibid. 508), may be thus summarized, that in actions ex delicto, for injury to the person or reputation, and actions er contractú, which die with the person (Ibid.); the mere fact of having to prove damages gives the plaintiff the right to begin, although on the record (e.g., libel-plea, justification) the onus is on the defendant, but not where the damages are liquidated or nominal. Bowles v. Neale, Ibid. 262. In all other cases the mere fact of having to prove damages, whether nominal or substantial, liquidated or unliquidated, general or special, does not give the plaintiff the right to begin when the onus on the record lies on the defendant. XXVI. proof is upon him; but it is otherwise where the damages CHAPTER are liquidated or nominal, and if all the issues be upon the defendant he has the right to begin (e). But though an issue may be apparently affirmative, it may be substantially negative, and vice versa, or there may be a presumption in favour of the side who affirms, and therefore the test is sometimes stated to be, "who would fail if no evidence were offered on either side?" Thus, as between drawer and acceptor, a defence by the latter that there was no consideration either from drawer or plaintiff, though in form negative, amounts to an affirmation by the defendant that the bill, on which the law presumes him liable, is an accommodation bill (ƒ). As to whether it is the substantial issue on the pleadings or the substantial issue according to the course to be adopted at the trial, which regulates the right to begin, the cases do not conclusively show (g). And even if an error in this respect is committed at the trial, a new trial will not, therefore, be granted unless injustice has been done (). It was at one time held (i) that if the plaintiff had the Rebutting right to begin, and had notice on the record or otherwise of evidence. the defence to be set up, he was bound to go at once into his whole case, original and rebutting. But Abbot, C.J.(k), subsequently held otherwise, and Starkie points out that the course most likely to save time is to limit his evidence See Best, Right to Begin, p. 42. The same learned writer favours the view that the defendant, by admitting the amount of damages, even in a case within the rule, can obtain for himself the right to begin. Ibid. 50. (e) Mercer v. Whell, 5 Q. B. 447 Chapman v. Rawson, 8 Q. B. 673. (f) Mills v. Barber, 1 M. & W. 425. The damages recoverable in a claim upon the bill are expressly described as liquidated in the Code (sect. 57), though the interest thereby made recoverable is rendered uncertain in amount by the provision that such interest may be withheld in whole or in part, and the rate specified in the bill is not necessarily to be allowed as damages. Ibid. sub-s. 3. But for the pur poses of determining the right (g) See Homan v. Thompson, 6 count. (h) Cannam v. Farmer, 3 Exch. 698; Scott v. Lewis, 7 C. & P. 347. () Rees v. Smith, 2 Stark. N. P. C. 30, per Lord Ellenborough, C.J. (k) 1 Stark. Evid. 382. |