Duckworth v M'Clelland, No. 2 (1)

• Jurisdiction: Ireland
• Judgment Date: 03 December 1878
• Date: 03 December 1878
• Court: Common Pleas Division (Ireland)

C. P. Div.

Before LAWSON, J.

DUCKWORTH

and

M'CLELLAND, No. 2 (1).

Street v. GoverELR 2 Q. B. D. 498.

O'Farrell v. StephensonDLTR 12 Ir. L. T. R. 81.

Pleading — Reply to counter-claim — Inconsistency with statement of claim — Set-off — Counter-claim to counter-claim — G. O. XVIII., R. 12.

VOL. II.) Q. B., C. P., & EX. DIVISIONS. 527 DUCKWORTH v. 11PCLELLAND, No. 2 (1). Pleading-Reply to counter-clam-Inconsistency with statement of claimÂSet-off-Counter-claim to counter-claim-G. 0. XVIII., R.12. In, an action for rent, in respect of a tenancy described in the statement of claim as still subsisting, the Defendant made a counter-claim for money had and received, to which the Plaintiff replied that by reason of the Defendant overholding part of the premises after the expiration of his tenancy therein, the Plaintiff, whose interest as a middleman had also determined, was compelled to pay to the head-landlord. damages and costs, which he sought to set off against the counter-claim. Held, that the reply was a departure from, and inconsistent with, the stateÂment of claim, and should be set aside as irregular; and that the reply introÂduced a new ground of claim which the Plaintiff could only be allowed, under G. 0. XVIII., R. 12, to raise by amendment of the statement of claim. MoTIoN on behalf of the Defendant to set aside the fifth paragraph of the Plaintiff's reply as irregular, on the ground that it was a counter-claim to Defendant's counter-claim, and sought to recover for a new cause of action not mentioned in the writ of summons or statement of claim, and as being inconsistent with the statement of claim, and a departure therefrom. The stateÂment of claim alleged that the Defendant was tenant to the Plaintiff, under a tenancy from year to year, which was still continuing, at the yearly rent of £106 10s., payable half-yearly, and claimed £213 arrears of rent for four half-yearly gales. The statement of defence denied the continuance of the tenancy, and pleaded a surrender of the whole lands; and, for a further defence, limited to £141 parcel of the moneys claimed (being two years' rent for forty-seven acres of part of the lands called Ardsallagh, calculated at the rate of 30s. an acre), the Defendant alleged that he was evicted by title paramount, under a civil-bill decree, from the said forty-seven acres ; and that the sum of £141 was the fair proportion of rent which ought to be deducted by the Plaintiff from his claim, as an...