held to admit the validity of any judgment obtained by
the plaintiff against the defendant, and if he desires to
(m) Furnesi v. Hoot!,, 4 Ch. D. 586.
(n) Butler v. Butler, 11 Ch. J). 32!).
(o) Steel v. Dixon, W. N. 1880, 113.
p) Dear •■Sworder, 4 Ch, D. 470 ; Turner v. Hednesford Gas Co., 3
Ex. J ). L45.
dji Central African Trading Co. v. Grove, 48 L. J. (Ex.), 510.
(»•) Marnerv. Bright, 11 Ch. D. 394 n.
(*; Bagot v. Eatton, 1 I Ch. D. 392.
(t) Auoeiated Home Co. r. Whichcord, 8 Ch. D. 457.
Hunter v. Young, 4 Ex. U. 256.
0. XV r. r. 19, and .see The " Carfburn," 5 P. D. 59.
(w) O. KXll. rr. 5, 6.
THIRD PARTY. — JOINDER OF CAUSES. -31
dispute the plaintiff's claim, be must appear within eight
days (r) or other time limited (y), or later by leave upon
terms. If he appears, the Court or Judge may, on the
application of the party who issued the notice, give liberty
to defend on terms, and direct as to pleadings, amend-
ments, discovery (z), proceedings generally, and mode or
extent in or to which such person shall be bound by the
decision (a). But it is optional with such third person
to come in and appear, and he is not entitled to call on
the defendant to pay his costs (/>). Whether such third
person on becoming a party can himself bring in sub-
sequent parties, qucere (c).
25. In general a plaintiff or plaintiffs, jointly or sepa-
rately (//), may unite in the same action and statement of
claim several causes of action (e), (semble) where the
parties are sufficiently ascertained (/), and it is not
necessary that each defendant be interested in each cause
of action (g), but the Court or a -Judge, on or without
application of a defendant, may order separate trials ; or
make other Order for separate disposal ; for amendment
(if necessary) of the writ, indorsement, or statement of
claim ; and for costs, wherever it appears that such causes
of action cannot be conveniently disposed of together (/<).
Thus, claims by or against husband and wife ma}' be
joined with claims by or against either of them sepa-
rately (/), and in case of antenuptial debts of the wife it
is not necessary expressly to allege that assets have come
(as) 0. XVI. r. 20.
(//) Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644.
(:) McAllister v. Bishop of Rochester, 5 C. P. IX 194.
(a) 0. XV!. r. 21.
(b) Yorkshire JFayon Co. v. Newport Coal Co., 5 Q. B. D. 268 ; Dawson
v. Shepherd, 49 L. J. Ch. 1). 529, W. X. 1880, 1 10.
(c) H appeals to be virtually settled in the affirmative. See cases referred
to above (6;, and others quoted therein.
(d) (). XVII. r. 6. See Witham v. Vane, W. N. 1880, 108.
(e) 0. XVII. r. 1.
(/) Wilson's Judicature Acts, p. 1*7, quoted in Smith v. Richardson, 4
C. P. D. 116, and cf. O. XVI. r. 1, para. 13.
(>/) Cox v. Barker, 3 Oh. D. 3 59 ; Child v. Stenning, 5 Ch. D. 695, 7 Cb.
D. 413.
0i) 0. XVII. rr. 1, 8, 9 ; and fur examples, see liaijot v. East on, 7 Ch. U.
1 ; My cock v. Beat son, 13 Ch. D. 384 ; DesUta v. Schunk a- Co. and Pels A
Co., \V. X. 1880, 96.
(i) O. XVII. r. 4.
32 THE LAW OF PRACTICE.
to the hands of the husband (,/). And claims by or
against an executor or administrator as such may he
joined with claims by or against him personally arising
with reference to the same estate (A;). But such claims
cannot he combined in a counterclaim as against an
executor who sues only in a strictly personal character (/).
Nor can claims by a trustee in bankruptcy, unless by
leave, be joined with claims by him in any other
capacity (m). Nor, along with an action for recovery of
land, can any cause of action other than claims for mesne
profits, arrears for rent, and damages for breach of con-
tract, under which such land is held (n) he joined unless
by leave (o) obtained before the issue of the writ (_/>), as
e.g. a claim for a receiver (q). But an action for recovery
of land does not include a foreclosure action (r), nor an
action for " declaration of title " without claiming pos-
session (s).
26. A defendant in any action and in any Division
after service of a writ and before defence (<), on affidavit
showing that (1) he claims no interest in the subject-
matter the right whereto is alleged to belong to some
third party, (2) he does not collude with such third party,
(3) he is ready to bring into Court, pay, or dispose of
the subject-matter as ordered (u), may apply for an Order
calling on the plaintiff and third party to interplead.
The decision of a Judge at Chambers in a summary
manner is final under the Common Law Procedure Act,.
]8(>0, s. 17, and no appeal lies to a Divisional Court (r),
but in other cases an appeal lies from an Order made on
(j) Matthews v. Whittle, W. N. 1880, 43.
(A) 0. XVII. r. 5.
I Macdonald v. Carmgton, 4 C. P. D. 28.
(ml 'i. XVII. r. 3.
I»i Do. r. 2.
(<,) See, for examples, Cook v. Knchmarch, 2 Ch. D. Ill ; Whetstone v.
h... is, i Ch. I». 99.
(},) PUcher v. Hinds, 11 Ch. D. 905.
[q] AUen v. A'mnet, 24 W. R. MZ.
(n TaweU v. Slate Co., â– ', Ch. D. 629.
(») Oledhill v. J/anltr, 14 Ch. D. 4'J'l; not following herein, Whetstane v.
i„ ■;-. i Ch. I). 99.
it, o. I. r. 2.
(u) Bee 1 &2 Ww. IV., c. 58, s. 1.
i, , Do. b. J Bee JJocLU v. Shepherd, 1 Ex. D. 75 ; Williams v. Ridvard.
ton, Z') L. T. 505.
INTERPLEADER. — PLEAT UNO. 33
an interpleader issue, as from any other interlocutory
Order, within twenty-one days to the Court of Appeal (w)i
And an appeal lies from the refusal of an interpleader
Order (./;). Pending the hearing of an interpleader sum-
mons the plaintiff may issue a writ and the defendant
may undertake to appear (//).
27. Every pleading shall state concisely material facts,
and if to support distinct claims then separately and
distinctly, but not evidence (z), as admissions (a), or
proof that a person is heir-at-law to one deceased (b);
It shall he delivered between parties by delivery to the
solicitor of a party who appears by a solicitor, or in
default of appearance by filing (c), which also, in case of
default, is sufficient delivery of notice of motion for
judgment (d). But filing is not necessary for delivery of
a summons (e) or statement of claim (/) personally
served on a defendant who has not appeared. Non-
appearance of a defendant does not necessarily imply
that he dispenses with a statement of claim (//). A statt -
ment of claim or counterclaim shall state specifically the
relief claimed simply or in the alternative, and may also
ask for general relief (h). But a defendant in his counter-
claim may not ask for enforcement of a judgment in
another Division, or in the alternative for other relief (/).
Semitic, no distinction can be made, as to effect, between
" Set-off" and " Counterclaim " (j).
(w) McAndrew v. Barker, 7 Ch. D. 701.
(at) See Attenborough v. London <t St. Katharine's Dock Co., 3 C. T. D.
450.
{,,) Hooke v. Ind, Coope, <fc Co., 36 L. T. 467.
(z) 0. XIX. rr. 4, 9.
(a.) Davy v. Garrett, 7 Ch. D. 478.
{b) Evelyn v. Evelyn, W. N. 18S0, 62.
(c) 0. XIX. r. 6.
{d) Morton v. Mi/hr (C. A.), 3 Ch. D. 516 : ami see Dymond v. Croft, ."
Ch. D. 512 ; not following Cook v. Dey, 2 Ch. P. 218.
(c) Whitakerv. Thurston, \V. X. 1876, 282.
(/) Renshawv. Renshaw, W. X. 1880, 7.
(</) Minton v. Metcalf, 46 L. J. Ch. 1). 488; and sea «». XIII. r. 9,
para. 1<».
(A) 0. XIX. r. 8, and as to counterclaim see HolloiBay v. York, 25 \V. R.
627.
(/) Birmingham Estates fo. v. Smith, IS Oh. 1). 506.
j) NcoTa v. Clarke, 1 Ex. D. 2s6 ; Vole v. Firth, i Ex. D. 301 ; Maples
v. Masini, 5 14. li. i). 144.
c 3
34 THE LAW OP PRACTICE.
28. A defendant may set up as counterclaim any right
or claim sounding in damages or not (k), subject to refusal
of permission to prosecute such counterclaim if, on the
plaintiff's application (I) at any time before reply (m), the
Court or Judge in their or his discretion (n) consider
that it cannot be conveniently disposed of in the pending
action, or ought not to be allowed, as being e.g. not suffi-
ciently connected with the original subject-matter, or as
calculated unduly to embarrass and delay the plaintiff (o).
And the Court of Appeal will only in very strong cases
interfere with such discretion of the Court or Judge (p).
Unless by leave, a counterclaim must be confined to
facts existing at the date of issue of the writ (q) ; other-
wise, on the plaintiff's summons, it maybe struck out (■/•).
A counterclaim can only be brought where an action
could be brought (s), and cannot be continued after the
principal action is discontinued (t). And where both
claim and counterclaim are dismissed with costs, as a
rule, the plaintiff must pay the general costs, and the
defendant pay the amount by which the counterclaim has
increased the plaintiff's costs (//). A counterclaim may,
under some circumstances, set off against an assignee
damages due from the assignor (r). But this does not
include a liability incurred by the assignee of a policy
subsequent to its assignment, in cases falling under the
Policies of Marine Insurance Act 18G8 (w). A husband
and wife joined as defendants in respect of her separate
estate may raise a counterclaim concerning chattels of
0. XIX'. r. 3.
(I <';ni a Judge mero motu, without application of the plaintiff, reject a
laim, e.g. as rendering the case "untriable"? The point does not
appear \<< have arisen, and something may he said for either view.
(mj o. XXII. r. 9.
n) Thompson v. Woodfine, 38 L. T. 753; Najlor v. farrer, 26 W. R.
feu:..
Padwict v. Scott, 2 Ch. 1). 736.
r Hug •-. Tweed, LO Ch. D. 359.
(71 Original Hartlepool ColleriesY. Gihb, 5 Ch. D. 713.
Ellis v. Mune'.n, W. X. 1876, 253.
Birmingham Estates Co. v. Smith, 13 Ch. I). 506.
• Va\ < < ttr •■■. Krvpp, \S . X. 1880, 11.
a â– . Bilton, U Ch. D. 416 ; ami see Musun v. Brentini, W. N.
1880, 107, 144.
[v] )'â– ,,> ,,j v. Kitchen, â– : Ex. D. 127.
\w) Pvll'lH V. ,\ Vy,/ „ „ , , j (.'. 1'. D. 35.
COUKTERCIAIM. — ADMISSI ON. 35
hers and others of his (x). A debt owing from the
estate of one deceased, but due only after his death, can-
not be set off against one due to the deceased in his life-
time (y). A counterclaim which raises no new issue of
fact but merely relies on facts in the claim itself will not
let in fresh evidence [z). Where a counterclaim is estab-
lished judgment will be given on the balance whether in
favour of the plaintiff or defendant (a).
29. Any facts on which the defendant relies as sup-
porting a right of set-off or counterclaim must be specifi-
cally stated as such in the statement of defence (&), but
it is not essential that there be a separate heading to
such counterclaim (c), nor is it necessary therein to " set
out" again facts already referred to in the statement of
defence (d). But if the' statement of defence and counter-
claim form one continuous document, it is not sufficient
that the facts relied on appear in the statement of defence,
if it is not made clear which particular facts therein are
relied on for the counterclaim (e). Where a counterclaim
brought in an Inferior Court concerns matters beyond its
local jurisdiction, such Court may entertain the counter-
claim only up to the amount claimed by the plaintiff (/).
30. In any pleading in an action, other than a general
joinder of issue by reply or subsequent pleading if any (g),
every allegation of fact is taken as admitted by the
opposite party (not being an infant, lunatic, &c), unless it
be expressly or impliedly (h), specifically not generally (i),
nor evasively (j), denied. Thus, either party must
(x) Hodson v. Mochi, 8 Ch. D. 569.
ly) XewcU v. Provincial Bank of England, 1 C. P. D. 496.
(2) Green v. Serin, 13 Ch. D. 589.
(a) 0. XXII. r. 10 ; and see Staples v. Young, 2 Ex. D. 324 : R>!f> v.
Maclaren, â– '> Ch, D. 106 ; and see further as to cases in County Courts, Blaki
v. AjvpUyard, 3 Ex. D. 195 ; Potter v. Chambers, 4 C. P. D. 69 ; Chatjidd
v. Sedgwick, 4 C. P. D. 383, 459.
(b) 0. XIX. r. 10.
(c) Lees v. Patterson, 7 Ch. D. S66.
(d) Birmingham Estates <'<>. v. Smith, 13 Ch. D. 506.
(e) Crowe v. Barnicot, •> Oh. D. 753.
(/) Davis v. Flagstaff Stiver Mining Co. of Utah, 3 C. P. D. 228.
(g) O. XIX. r. 21.
(h) Do. r. 17.
(i) Do. r. 20 ; anil see Harris v. Gamble, 7 Ch. D. 877 ; Beribtm v. Low,
13 Ch. D. 553 ; Green v. Serin, 13 Ch. D. 569.
(J) O. XIX. r. 22,
30 THE LAW OF PRACTICE.
specifically deny (if he denies) that any other party claims
in a representative or other capacity, as executor, or
trustee, or trustee in bankruptcy. So too, if he denies
the constitution of a partnership firm (Jc), or terms of
arrangement between parties (I). A denial of a particular
fact ;iml of circumstances generally is insufficient (m), and
a general denial accompanied by specific assertion of a
particular fact puts that fact alone in issue (n). A bare
denial of a contract is a denial of the making thereof, not
of its legality or legal sufficiency (o). And if the defendant
relies on the Statute of Frauds, he must plead such facts
as render the Statute applicable (p),
31. But it is sufficient to state the effect of a material
document, setting out precise words only where them-
selves materia] (7), as e.g. words alleged to be libellous or
glanderous (r) ; and to allege as a fact (1) malicious or
other particular condition of mind of a person, without
setting out the circumstances leading to the inference; (2)
notice to any person, without setting out its forms or
terms, unless material ; (3) a contract or relation or more
than one in the alternative where implied and not arising
from express agreement, without referring otherwise than
generally to letters, conversations or circumstances where-
in mi such contract or relation or alternative is implied ;
provided that any agreement be actually pleaded as a
substantive ground of action (s), and any equitable title as
a defence relied on (£). A presumption of law not
specifically denied by one party need not be alleged as a
matter of fact by the other (/*). And the Court may
make an Order as to costs occasioned by prolixity in any
pleading (v) or by unjustifiable denial or non-admission in
a statement of defence ((c).
(4) (). XIX. r. 11.
I Thorp v. Holdsworth, 3 Ch. D. 637.
TUdetLey <r. Harper, 7 Ch. D. 403 ; 10 Ch. D. 393.
(n) Byrd v.Ifunn, 7 Ch. D. 284; Collette v. Goode, 7 Ch. D. 842.
(0) 0. XIX. r. 23.
[p) Pullen v. Snehu, 48 L. J. C. P. 394; Clark v. Callow, W. N. 1870, 262.
0: XIX. r. 24.
(r) Hdrrit v. Warre, 4 C. P. D. 125.
($) Noad v. Marrow, 10 L. T. 100.
Svtdiffe v. James, 40 L. T. 875.
0. XIX. it. 24, t'o, 26, 27, 28.
(V) Do. r. 2. (w) 0. XXII. r. 4.
PLEADING. — STATEMENT OF CLAIM. 37
32. A. A statement of claim, where necessary, is to be
delivered within six weeks after appearance, unless the
time be enlarged by the Court or a Judge (x), or by consent
in writing (//).
B. But it is unnecessary where (1) it is dispensed with
by (i) the defendant, or (ii) the Court or a Judge, as may
generally be done in " short causes" (z) ; or
(2) the defendant has made default in appearance in
cases under (). XIII. it. 3 — 8 (a); or
(3) the defendant has appeared to a writ specially
indorsed, but has not obtained leave to defend (b) ; or
(4) the defendant has appeared to such a writ and
obtained leave but, no further Order being given, a notice
that his claim is as on indorsement is in that ease
sufficient (c),
C. It is optional (1) where the defendant has not
appeared, at any time after issue of writ ; (2) where he
has and has dispensed with it, at any time not more than
six weeks afterwards (d) ; but where not required, if the
delivery appear to the Court or Judge unnecessary or
improper, costs may be disallowed (e), or other Order
made (/).
It is desirable, though not absolutely necessary, that
a statement of claim should be signed by Counsel (7/).
33. A statement of defence or demurrer (h) (1) is to he
delivered, where a statement of claim has been delivered,
within eight days of such delivery or of the time limited
for appearance, whichever falls last, unless the time be
enlarged by the Court or a Judge (/), or by consent in
writing ( j ) ;
(x) Under 0. LVII. r. 6, para. 128 ; and see Higginbotham v. Ayndty, :\
Ch. D. 288.
it/) O. LVII. r. 6a.
(z) O. XXI. r. 1 (a), and see Green v. Cohbi/, 1 Ch. D. 693. Rut Bee
contra, Breton v. Mockett, 33 L. T. 684 ; Boyes v. Cook, 33 L. T. 77i ;
l„ n HuckweU, David v. Dalton, W. N. 1879,66.
(a) See para. 10.
(6) 0. XIV. r. la.
(c) O. XXI. r. 4. (d) 0. XXI. r. 1 (6).
(e) Add. R. of C, 0. VI. (Costs) IS.
(f) 0. XXI. r. 1 (<•).
(g) Duckitt v. Jones, 33 L. T. 777.
(A) Hodges v. Hodges, 2 Ch. D. 112.
(i) 0. XXII. r. 1.
(j) O. LVII. r. 6a; and see Ambroisi v. Ei-lyn, 11 Ch. D. 759, which
3S THE LAW OF PRACTICE.
(2) may be delivered, though the defendant has dis-
pensed with a statement of claim and none has been
delivered, within eight days after appearance (k), unless
the time is enlarged as above ;
(3) may be delivered, on leave to defend to a writ
specially indorsed, within the time (if any) limited in the
Order for defence, or (if none) within eight days after the
Order (I).
A reply to a counterclaim may be delivered by a party
within the same time as a defence {m), but such party
cannot counterclaim against the defendant (n).
34. Grounds of defence which arise after action brought
but before delivery of statement of defence may be pleaded
therein (o) [but not in a counterclaim, except by leave (p)],
and if they arise after delivery of statement of defence
only within eight days by leave in further defence (q).
Similarly, grounds of defence to counterclaim which
arise before reply thereto may be pleaded in reply with-
out leave, or if they arise after reply or time limited
therefor in further reply by leave within eight days.
The plaintiff may confess any such ground of defence as
above made by the defendant, and may, unless otherwise
ordered, sign judgment for costs up to its pleading (r).
Such ground of defence may include bankruptcy of the
defendant and the fact that the property claimed was in
his order and disposition at the time of the bankruptcy (s),
or semble bankruptcy of the plaintiff (*), but not per-
formance of covenants after action brought («).
35. Where in an action brought to recover a debt or
damages, the defendant, after service of the writ and
before or at the time of delivering his defence, or later by
being before the issuing of this rule, the defendant had committed a
'■Hi ■:• I irregularity."
(/,i o. XXII. r. 2.
Do. r. 'â– ',.
(m I)". r. 8.
(„, Street v. Gover, 2 Q. B. D. 498.
XX. r. 1.
Original Hartlepool Colleries v. O'ibb, 5 Ch. D. 713.
q) 0. XX. r. 2.
(r) !>». r. 3.
(«) Champion v. Formby, 7 Ch. T>. 373.
[t) Foster v. Qamgee, 1 Q. B. J). 666.
mder v. Hawkins, 2 <J. 1'. 1>. 0'J2.
STATEMENT OF DEFENCE. — REPLY. 39
leave, has paid money into Court; this shall be pleaded in
the defence (r), even though the greater part of the
causes of action are therein denied («'), and the claim in
respect whereof such payment is made shall be specified
therein, but it is not necessary to specify how much is
paid in respect of which items (./). Such payment must
be made in the manner directed by the Chancery Funds
Act, 1872, and Rules 1874, and not lodged in a district
bank (?/). If made before defence, notice of payment
shall be served upon the plaintiff (z). The money shall
be paid out to the plaintiff, or to his solicitor on the
plaintiff's written authority (a) ; and the plaintiff may
accept the same, if before defence, within four days after
receipt of notice, otherwise before reply, in satisfaction of
the cause of action, and shall then give notice to the
defendant, and may, if the sum is accepted as entire
satisfaction, tax costs, and, if not paid within forty-eight
hours, sign judgment for them (b). Even where the four
days have been waived, the taxation of costs may still
take place (c). But where the plaintiff has failed to give
notice within four days, but has afterwards accepted ('/),
or where he has not accepted and the defendant has after-
wards substantially succeeded as to the residue (e), the
costs will be in the discretion of the Court.
36. Within three weeks after the defence, or last of the
defences, unless the time be extended (ee), the plaintiff
may deliver a reply, either by (1) simply joining issue
and thereby traversing all material facts (/) in a defence
unaccompanied by counterclaim (;/) or in a defence and
(v) 0. XXX. r. I.
(id) Hawksley v. Bradshaw, 5 Q. B. D. 302.
(x) Paraire v. Loibl, 4!t L. J. Ch. I). 481.
(y) In n Smith, Hutchinson v. Ward, o" Ch. D. 692 ; Finlay v. Davit.
12 Ch. I). 7:55.
(z) 0. XXX. r. 2.
(a) Do. r. 3.
(b) Do. r. 4.
(c) Hoole v. Earnshaw, W. X. 1878, 227.
(d) Langridge v. Campbell, 2 Ex. D. 2«1 ; Greaves v. Fleming. 4 C^. B. D.
226.
(e) Buckton v. Higgs, 4 Ex. D. 174.
(ee) 0. XXIV. r. 1.
(/) O. XIX. r. 21.
(,c/) Williamson v. London cC- North Western Railway Co., 12 Ch. D. 7S7.
40 THE LAW OF PRACTICE.
counterclaim which pleads no new facts in its support
(h) [but if the counterclaim does plead new facts, the
plaintiff must deal specifically with them (?')] ; or (2)
combining traverse, confession, and avoidance, of different
parts (,/'). A reply may introduce new matter within
reasonable limits by way of set-off or controverting state-
ments made in the defence, but it must not refer to in-
dependent documents, set up new claims, plead evidence
or arguments, or state conclusions of law (k).
37. The defendant may join issue on the reply, but
no subsequent pleadings are allowed except by leave
given on terms, every such pleading to be delivered within
four days after the last previous one (/). When the
plaintiff has delivered no reply within three weeks and no
notice of trial within six weeks and obtains no extension
of time, the defendant may either give notice of trial or
may apply to have the action dismissed for want of prose-
cution, but cannot after the three weeks and before the
close of the six apply for such relief as he maybe entitled
to on admissions of fact in the pleadings (m).
38. Any party may demur to a pleading of the opposite
party or to such part of a pleading as sets up a distinct
ground of action, defence, set-off, counterclaim, reply \e.
{)t), but not to one paragraph taken alone where, if taken
along with another, it makes up a sufficient ground of
pleading (o). A. writ specially indorsed and notice in
lieu of statement of claim together form such a pleading
as i- capable of demurrer {}>). A demurrer must state
that the facts alleged do not show any ground of action,
defence &c, to which the Court can give effect against
the party demurring (q), and must state specifically
wh( ther it demurs to the whole or to what (if any) part
(h) Hillman v. Mayheio, 24 W. R. 485.
, 0. XIX. r. 20.
Hail v. Eve, 1 Ch. D. 341.
(/•) WWwmson v. London <i- North Western Railway Co., 12 Ch. D.
787.
/ ; 0. XXIV. r. 3.
Idtton ••. Litton, 3 Ch. I). 793.
n XXVIII. r. 1.
Nathan v. Batchelor, W. X. 1876, 172,
/, Robertson v. //mrard, 3 C. P. 1>. 280.
q) 0. XXVIII. r. 1.
SUBSEQUENT PLEADINGS. — DEMURRER. 4L
of the pleading, and also state some ground of law. But
additional grounds may be raised ore terms (r).
The defence of the Statute of Frauds cannot be raised
On demurrer (s), but semble the defence of the Statute of
Limitations may be, whether as an original ground (t) or
an additional one ore tenus (u). A defendant may com-
bine a demurrer to part and defence to part in one plead-
ing (r) ; and, where he has not originally demurred, may
do so in an amended statement of defence to mi
amended statement of claim (w). And a party may by
leave (x), but by leave only (//), plead as well as demur to
the same matter. Where the opposite party does not
appear at the hearing, the Court may admit a demurrer
without argument (z).
39. A demurrer may be set aside with costs as stating
a frivolous ground or none (a). Where it is allowed on
argument, the opposite party shall generally pay costs (b)
but not necessarily, as where the plaintiff charges fraud
against a demurring defendant (c). Where it is over-
ruled, the demurring party shall generally pay costs (d))
but any objection to the over-ruling Order may, without
being introduced in the next subsequent pleading, be
introduced in argument (e). Such over-ruling Order is