Counterclaim against third parties. There may between the plaintiff and the defendant, and where these facts if true form the ground of a good counter-claim by the defendant against the plaintiff, then if these same facts also raise a question between the defendant and a third person, that third person may be made a defendant to the counter-claim delivered by the defendant to the original suit, and this too even though the third person could not have been made a party to the action as originally brought by the plaintiff. Now in this counterclaim the defendants have raised a question which gives them a good answer to the claim of the plaintiff, and it further shows that they have a right to relief against Round-a right which arises out of the same facts as those which form the foundation of the contention between them and the plaintiff. There is therefore a question in litigation between the plaintiff and the defendants which would also be a question between the defendants and Round. The bond indeed on which the defendants claim to recover from Round is not one to which the plaintiff is a party; but there is an equitable relation between all the three, for Round is surety for the plaintiff, and is thereby liable to a certain extent to the defendants for the performance by the plaintiff of his agreement. The same question, therefore, interests all these parties. The surety Round is not lial le until the plaintiff breaks the contract, and that which gives the defendant a right to counter-claim against the plaintiff is the breach by the plaintiff of his contract, so that there is a relation between the parties of a sufficiently intimate character to enable Round to be made a party to this suit. Where the litigation is really common litigation arising out of a subject common to all the parties attempted to be brought into the suit, I am of opinion that we should give these rules full and free operation in order that the intention of the statute may prevail, and that one litigation may include and conclude all those parties between whom there is really one and the same question in issue." See also Warner v. Twining, 24 W. R. 536; Furness v. Booth, 4 Ch. D. 586; 46 L. J. Ch. 112; 25 W. R. 267; Harris v. Gamble, 6 Ch. D. 748; 46 L. J. Ch. 768; Barber v. Blaiberg, 19 Ch. D. 473; 51 L. J. Ch. 509; 56 L. T. 52. A defendant may have a counter-claim although he admits be counter the plaintiff's claim, and in the Mersey Steamship Company v. Shuttleworth & Co., 11 Q. B. D. 531, where in an action for claim though admitted. a liquidated demand the defendants pleaded admitting the claim claim may It is no objection to a counter-claim that it exceeds in amount Counterthe claim in the original action. Rule 17 of Order XXI. says: exceed "Where in any action a set-off or counter-claim is established amount of as a defence against the plaintiff's claim, the Court or a judge claim. may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case." counter claim for amount of claim is Neither is it any objection to the counter-claim that it amounts to less than the claim. This question arose in Mostyn v. West Mostyn Company (1 C. P. D. 145; 45 L. J. C. P. 401). In giving judgment Brett, J., said: "Supposing the counterclaim to show a right to some damages, but that it is obvious that the amount of such damages would not be equal to the amount of the claim to which it is pleaded, would it be demurrable? If it is to be treated as a set-off under the old system, it And is clear that it would, for a plea of set-off pleaded to the whole of the claim, alleged that the set-off was of an amount equal to the less than claim. I think, however, that the 3rd rule of Order XIX. shows that a counter-claim is not like a plea of set-off, for by that rule allowable. the counter-claim is to have the same effect as a statement of claim in a cross action. The meaning seems to be, that where there is a claim and a counter-claim, the effect shall be similar to the effect under the old system where the parties agreed that cross actions should be tried together, and judgments having been given, there should be execution only for the balance of one judgment over the other, except that under the new system the judgment is only to be for the balance of one claim over the other. If so, the counter-claim will be good if it shows a right to any amount of damages whatever, and no question arises as to whether the amount of the counter-claim equals the amount of the claim. Therefore, where there is Counterclaim in respect of cause of action after writ. Can a third party counterclaim against the defendant? a demurrer to the whole of a statement of defence, if such statement shows a good counter-claim for any amount, the demurrer must fail, and the statement of defence stand good." And the decision was that a counter-claim, being in the nature of a cross action, may be good although it does not cover the whole of the plaintiff's claim. Whether a counter-claim can be brought in respect of a cause of action arising after the issue of the writ in the original action is still open to doubt, although the better opinion seems to be that it may. Jessel, M. R., in the Original Hartlepool Collieries Company v. Gibb (6 Ch. D. 713; 46 L. J. Ch. 311; 36 L. T. 433) decided in the negative; but Fry, J., in the later case of Beddall v. Maitland (17 Ch. D. 174; 50 L. J. Ch. 401; 44 L. T. 248), upon a review of all the authorities, came to the conclusion that a defendant may counter-claim for a cause of action which has arisen after the writ, and his lordship's view would seem to be borne out by the dicta of the Court of Appeal in Ellis v. Munson (35 L. T. 585), and by the ratio decidendi of McGowan v. Middleton (11 Q. B. D. 464). It has been decided that, if two or more persons sue together as plaintiffs, the defendant can counter-claim against them singly. (Manchester, Sheffield, and Lincolnshire Railway Company v. Brooks, 2 Ex. D. 243; 46 L. J. Exch. 244; 36 L. T. 103; 25 W. R. 413.) There, two railway companies, as joint lessees of a railway, sued for statutory tolls, and the defendant set up against each company separate counter-claims for damages in respect of delay in the delivery of goods. The plaintiffs applied to have the counter-claims struck out; but first Grove, J., at chambers, and then the Court on appeal, refused the application. Can a third party, who is brought in by a defendant, counter-claim against the defendant? In Street v. Gover (2 Q. B. D. 498; 46 L. J. Q. B. 582; 36 L. T. 766; 25 W. R. 750) it was decided in the negative; but in the later case of Toke v. Andrew's (4 Q. B. D. 428; 51 L. J. Q. B. 281; 30 W. R. 659) doubts were thrown upon this decision, and it was decided that a plaintiff, in his reply, might counter-claim against the defendant's counter-claim in respect of a cause of action which arose after the issue of the writ but before the defence and counter-claim was delivered. of the counter The Form of the Counter-claim.-The defence and counter- The form claim are combined in the same document, which ought to be headed "Defence and Counter-claim." In the forms claim. given in the Appendix there is a sub-head, "Defence," under which the paragraphs relating exclusively to the defence are given; and then another sub-head, "Counter-claim," under which the facts which support the counter-claim are ranged in numbered paragraphs. But though "defence" and "counter-claim " are thus combined in the same document, it must be borne in mind that they are distinct pleadings, and there must be in the body of each the allegations of fact essential to support it. It is now well settled that a defendant cannot, for the purposes of his counter-claim, rely upon the facts stated in the defence, unless those facts are repeated in the body of the counter-claim, or, which is the preferable course, expressly incorporated by apt words in the latter. This was first decided in Holloway v. York (25 W. R. 627). There the trustee in liquidation of the affairs of a person who had contracted to purchase real estate sued the vendor for a return of the deposit-money paid by the debtor, alleging that the latter had, before his liquidation, rescinded the contract, on the ground of the vendor's want of title. The defendant delivered a defence and also a counter-claim, asking specific performance of the contract by the plaintiff. The counter-claim did not state the contract (which was set out in the statement of claim), but mentioned it as "the said agreement;" nor did it appear in the counter-claim at all, except perhaps by the title, that the plaintiff was the trustee in liquidation. The plaintiff demurred to the counter-claim generally, on the ground of want of equity; but during the argument of the demurrer, the Master of the Rolls commented on the form of the counterclaim. He pointed out that no facts were pleaded in the counter-claim sufficient to support it. In the counter-claim the defendant did not state the liquidation proceedings, nor that the plaintiff was a trustee, nor did he set out the agreement for sale. It had been said that he might refer to the title to discover the plaintiff's status, and to the statement of claim for the form of the agreement; but considering Order XIX., r. 3, he did not think he could do this; in his opinion Facts in defence only available for counter claim if incorpo rated. Facts in defence only avail able for counterclaim if incorporated. Crowe v. the statement of the facts must be contained in the body of the counter-claim. Crowe v. Barnicott (L. R. 6 Ch. D. 753; 46 L. J. Ch. 855; 37 L. T. 68; 25 W. R. 789) was an action of ejectment for breach of a covenant in a lease to repair the demised premises. The defendants Barnicott and Isett, who were the lessees from the plaintiffs, agreed to sublet the premises to the defendant Timewell, subject to their obtaining the consent of the plaintiffs. Before this consent had been obtained, Timewell, without the knowledge of the other defendants, got into possession of the premises, and commenced pulling down and converting them into a skating rink. As soon as the plaintiffs became aware of this, the action was commenced claiming possession of the premises, damages from Barnicott and Isett for breach of covenant, and an injunction against Timewell. Timewell delivered a defence and counter-claim headed, "Statement of Defence and Counter-claim of the Defendant A. T. Timewell." It consisted of fourteen paragraphs, numbered consecutively. Barnicott. The first thirteen paragraphs contained a statement of the facts, on which the defendant relied by way of defence, but made no reference to a counter-claim. Among other things, there was a statement that the defendant had entered into a covenant for the erection of iron buildings on the demised premises at a cost of £1500, and that he had already laid out £500 on the premises. Paragraph 14 followed immediately after paragraph 13, without any distinction, and was in these words: "This defendant, by way of counter-claim, claims to be paid by the plaintiffs, and the defendants Barnicott and Isett, damages for the loss he has sustained in consequence of his expenditure aforesaid upon the said premises to the amount of £1500, and he claims interest on such sum." At the trial, objection was taken that there was no statement of facts in the body of the counter-claim to support it. It was replied, on the other side, that as the defence and counter-claim were one document, it was sufficient if the facts relied on were stated once, either in the defence or the counter-claim. In giving judgment, Fry, J., said; "I am of opinion that this preliminary objection is a valid one. It is quite plain that paragraph 14 of the document refers to that which has gone before, and if you do not read that, you do not know what |