But where particulars would be in vain they will not be ordered. If the plaintiff, for example, asks for an account to be taken between him and the defendant, it is obvious to the defendant that all his dealings with the plaintiff will have to be enquired into. But if the plaintiff claims an account and L too which he alleges will be due when the account is taken, it is clear that the de fendant is entitled to know how that figure is arrived at. If, when asking for an account, he also asks particulars of money had and received, they will be refused, as the facts will emerge on taking the account.
With regard to the defence, it is seldom enough merely to traverse (i.e., deny or refuse to admit) the matters in the state ment of claim. For example, if the plaintiff sets up a contract which was in fact made, it would be idle for the defendant merely to deny the existence of a contract. He should confess (i.e., admit) the contract and avoid the effect of that confession by set ting up the Statute of Fraud or Limitations or by setting up (a) that the contract has been duly performed or rescinded; or (b) that it was illegal; or (c) that some condition precedent to his liability has not been performed. In an action of debt a mere denial of the debt is expressly declared by the rules to be inadmissible; and i.1 an action for liquidated sums the defence must deny the order or contract, the delivery, or the amount claimed. Again, in an action for money had and received, the defence must deny the receipt of the money, or the existence of those facts which are alleged to make such receipt by the defendant a receipt to the use of the plaintiff. If the defendant desires to deny the right of a plaintiff to sue in a representative capacity, he must do so specifically (0. 21, r. 5). While the defendant should make every denial which is really necessary, he should avoid denying matters which are really immaterial. If he does so, the court has power to make him pay any extra costs occasioned thereby (0. 21, r. 9).
With regard to counterclaims, a defendant may counterclaim not only against the plaintiff but against other parties to the action, and against a person who is not a party (0. 21, r.
But whereas a counterclaim against a plaintiff and a person already a party is merely delivered, a counterclaim involving a "third party" must be served on him like a writ. Such third party must appear as if he were a defendant to an action, and, having done so, may deliver a defence without any leave from the court (0. 21, r. 14). It is competent for any person who is made defendant to a counterclaim to apply to the court for an order to exclude the counterclaim, on the ground that it cannot be conveniently or properly tried with the original action (0. 21,
r. 15). If there is a counterclaim on the record, and the original action is stayed, discontinued or dismissed, the counterclaim can nevertheless be proceeded with (0. 21, r. i6). As to defences generally, one or two survivals from ancient times are to be found in the rules. Thus it is still competent for a defendant, in certain cases, to plead "not guilty by statute"—as when for example an action is brought for illegal distress. But it is unsafe to use this plea, as no other plea can be added save by leave. (See 0. 19, r. 12 ; 0. 19, r. 2o.) Again, a plea "in abatement" (e.g., that a third person should have been added as plaintiff) is not allowed. Finally in an action for the recovery of land against a defendant who is in possession by himself or his tenant the de fendant (unless he has some equitable defence) need only plead that he is in possession. This puts everything in issue and enables him to raise any defence—even the Statute of Limitations (0. 21, r. 21). The reason assigned for this (by Lord Justice Brett) is that the plaintiff in an action for recovery of land must recover on the strength of his own title and not through any defect in the defendant's title. "Possession is nine points of the law." Payment into Court.—There is no part of the procedure in civil actions more important to the litigant than that which enables a defendant to pay money into court. By a judicious payment into court a defendant may bring proceedings to an end, and so avoid the costs of what may be an expensive action. Further, if he pays in enough or more than enough to satisfy the plaintiff's claim, the plaintiff will have to bear all costs incurred subsequent to the date of payment in.