and a fresh action is thereupon brought against his executors. (Swindell v. Bulkeley, 18 Q. B. D. 250; 56 L. J. Q. B. 613; see "Limitation, Statutes of," post, p. 771.)

The marriage of a female plaintiff or defendant after action brought does not in general render it necessary to join the husband as a party to the action (see the Married Women's Property Act, 1882, ss. 1, 13, 18; "Husband and Wife," post, p. 219; Executors," post, p. 203); but in cases where it is necessary or proper to add the husband as a party, application may be made to add him under O. XVII. rr. 2, 4, above cited.

On the bankruptcy of a defendant, the action against him will in general be stayed under the Bankruptcy Act, 1883, s. 10 (2), cited "Bankruptcy," post, p. 663, on application made in the action. (See Ex parte Reynolds, 15 Q. B. D. 169; 54 L. J. Q. B. 354.)

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As to cases in which the plaintiff becomes bankrupt after action, and as to the continuance of such actions by trustees in bankruptcy, see Bankruptcy," post, pp. 121-125; and Warder v. Saunders, 10 Q. B. D. 114; United Telephone Co. v. Bassano, 31 Ch. D. 630; 55 L. J. Ch. 625; Barker v. Johnson, 60 L. T. 64; Selig v. Lion, (1891) 1 Q. B. 513; 60 L. J. Q. B. 403.

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As to what causes of action pass to a trustee in bankruptcy, see Bankruptcy," post, pp. 121-125.

As to joining parties where there has been an assignment or transmission of the plaintiff's interest after action, see Seear v. Lawson, 15 Ch. D. 426; 16 Ib. 121; 49 L. J. Q. B. 69; 50 lb. 139; Wallis v. Smith, 46 L. T. 473; Stanhope v. Stanhope, 11 P. D. 103; 55 L. J. P. 36; Guy v. Churchill, 40 Ch. D. 481; 58 L. J. Ch. 345; House Property Co. v. Horse Nail Co., 29 Ch. D. 190; 54 L. J. Ch. 715.

As to joining parties where there has been an assignment of the defendant's interest after action, see Campbell v. Holyland, 7 Ch. D. 166; 47 L. J. Ch. 145.

As to adding plaintiffs or defendants under O. XVI. r. 11, cited ante, p. 26, where there has been an assignment or devolution of a sole plaintiff's or a sole defendant's interest before action, see Emden v. Carte, 17 Ch. D. 768; 51 L. J. Ch. 41 (cited post, p. 123); Kino v. Rudkin, 6 Ch. D. 160; 46 L. J. Ch. 807.

In cases where an assignee is substituted for the original plaintiff, the subsequent pleadings should be headed both with the original title of the action and also with the new title, showing the name of the substituted plaintiff, and should also show in the body of the pleading how the plaintiff derives his title as assignee. (Seear v. Lawson, supra.)

The order made under these rules should contain such directions as may be requisite as to amending the pleadings, or suggesting by way of amendment in any pleading already delivered the change of parties, or extending the time for pleading, or any other matter necessitated by such change of parties. Where the order does not contain any such directions, and the change of parties has not been explained by any suggestion made in the pleadings already delivered by way of amendment, it is a convenient and proper course for the party amending to suggest, in the pleading next to be delivered by him, the death or bankruptcy, &c. creating the change, and the order, if any, made relating thereto.

Although under O. XVII. rr. 6, 7, above cited, provision is made to enable an application at chambers to discharge or vary such orders, it is presumed that where the facts relied upon as causing the transmission of interest are stated in the pleadings, whether by way of suggestion or otherwise, they may be pleaded to.

Bankruptcy," post, p. 124; "Executors,”

For forms of suggestions, see 66 post, p. 208.

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As to the title of the action in the case of such changes of interest as above mentioned, see Date, Title, &c.," ante, p. 6; and as to assignment after action, see ante, p. 32.

Equitable claims and defences, &c.]-Law and equity are now administered concurrently in all civil actions by the Courts established under the Judicature Acts. (See the Judicature Act, 1873, ss. 24, 25.) Accordingly the rules and doctrines by which equity has modified and supplemented the system of the common law are now recognized in every Division of the High Court of Justice, and effect is given to them in all cases in which they are properly applicable.

With respect to equitable claims, &c., it is provided by s. 24 (1), that "If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a Court of Equity, the High Court and the Court of Appeal respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose properly instituted before the passing of this Act." s. 24 (7), cited post, “ Relief other than Damages,” p. 64.)

(See also

But, by s. 34 of the Judicature Act, 1873, actions for any of the various kinds of equitable relief therein specified, which are such as previously to the Judicature Acts fell within the exclusive jurisdiction of the Court of Chancery, are assigned to the Chancery Division, and, therefore, actions brought for the purpose of obtaining such relief should be commenced in that Division, and, if commenced in any other Division of the High Court, will usually be transferred to the Chancery Division under the provisions of s. 11 of the Judicature Act, 1875, and Ổ. XLIX. The mode of pleading in such cases is that the material facts relied upon for the claim must be stated in a summary form (see O. XIX. r. 4; "Pleading in General," ante, p. 7), but it may sometimes be necessary to state them rather more in detail than is proper in an action for an ordinary common law demand (see Heap v. Marris, 2 Q. B. D. 630; 46 L. J. Q. B. 761, which was decided under the former rules).

For examples of forms of statements of claim in actions assigned to the Chancery Division, see R. S. C., 1883, App. C., Sect. II.

With respect to equitable defences, &c., it is provided by s. 24 (2), that "If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said Courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that Court for the same or the like purpose before the passing of this Act."

For examples of forms of defences in actions which are assigned as

B.L.

D

above mentioned to the Chancery Division, see R. S. C., 1883, App. D., Sect. II.

Previously to the Judicature Acts there was a limited right of pleading defences and replies on equitable grounds under the Common Law Procedure Act, 1854, ss. 83 and 84 (which have now been repealed by the Stat. Law Rev. Act, 1883, 46 & 47 Vict. c. 49), but that right was restricted to cases in which the circumstances were such that a Court of Equity would have decreed an absolute, unconditional and perpetual injunction in favour of the party pleading, and the party so pleading was obliged expressly to state in his pleading that his plea or reply was on equitable grounds." (See Bullen & Leake, 3rd ed., p. 566.) These restrictions have been removed by the wider enactments of the Judicature Acts, which have given, subject to the provisions relating to the assignment and transfer of particular actions to the Chancery Division (see Jud. Act, 1873, ss. 34, 36; Jud. Act, 1875, s. 11; and O. XLIX.), the fullest power of setting up and enforcing equitable rights and claims, and of pleading equitable defences and replies, &c., in an action in the Queen's Bench Division of the High Court of Justice.

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By the Judicature Act, 1873, s. 25, sub-ss. 2-7, the doctrines of law are assimilated to those of equity with respect to certain matters therein particularly mentioned; and it is further provided by sub-s. 11, that Generally, in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail."

By s. 24 (5), it is declared that, subject to the proviso therein contained, "No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained if this Act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto."

As to equitable defences in actions for the recovery of land, see O. XXI. r. 21; " Recovery of Land," post, p. 951.

It should be added that, except where the law has been expressly altered (as, for instance, in the particular cases enumerated in the Jud. Act, 1873, s. 25), the doctrines of equity are not in general applicable to cases in which the Courts of Equity, previously to the Judicature Acts, would not have had jurisdiction, or would not have granted relief. (See the Jud. Act, 1873, s. 24 (2), above cited; Britain v. Rossiter, 11 Q. B. D. 123; 48 L. J. Ex. 362; as to which case, see "Frauds, Statute of," post, p. 711; Ind, Coope & Co. v. Emmerson, 12 App. Cas. 300; and see Gibbs v. Guild, 8Q. B. D. 296; Ib. 59; Armstrong v. Milburn, 54 L. T. 723; "Limitation, Statutes of," post, pp. 770, 771; and see Injunction," post, p. 446.)

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As to counterclaims founded on equitable estates or rights, or other matters of equity, see the Jud. Act, 1873, ss. 24 (3) (7); and see "Counterclaims," post, pp. 571, 572; and as to the power of transferring actions in which such counterclaims are pleaded to the Chancery Division, see Storey v. Waddle, 4 Q. B. D. 289.

Example of a Statement of Claim, Defence, and Reply.

(R. S. C., 1883, App. E., Sect. II.)

The plaintiff's claim is for work done and materials provided by the plaintiff for the defendant at his request. . Particulars:

1882. January 1 to 31 May.-To rebuild-
ing house at Wigan, as per contract dated
the 24th December, 1881

To extras as per account delivered

Paid on account

Balance due

. 3,000 0 0

£643 0 0

The plaintiff also seeks to recover interest on the above balance from the 31st May, 1882, till payment or judgment. Place of trial, Lancashire, Northern Division.

(Signed)

Delivered the 1st of January, 1883.

[Heading as in General Form.]

Defence and Counter-claim.

The defendant says that

Defence.

1. Except as to £200, parcel of the money claimed, the architect did not grant his certificate pursuant to the contract. 2. As to £200, parce of the money claimed, the defendant brings [or has brought] into Court £200, and says that sum is enough to satisfy the plaintiff's claim herein pleaded to.

Counter-claim.

The defendant says that

1. The contract contained a clause whereby it was provided that the plaintiff should complete the works by the 31st of March, 1882, or in default pay to the defendant £1 a day for every subsequent day during which the works should remain unfinished, and they so remained unfinished for sixty-one days to the 31st of May.

The defendant counter-claims £61.

(Signed)

Delivered the 22nd of January, 1883.

[Heading as in General Form.]

The plaintiff says that

Reply.

1. As to the first paragraph of the defence, he joins issue. 2. As to the second paragraph thereof, the plaintiff accepts the £- in satisfaction.

The plaintiff as to the counter-claim says that—

3. The liquidated damages were waived by ordering extras and material alterations in the works.

4. The defendant waived the liquidated damages by preventing the plaintiff from having access to the premises till a week after the agreed time.

(Signed)

Delivered the 5th of February, 1883.

General Form of Particulars not stated in the Pleadings (a).

The following are the particulars [of the plaintiff's claim in this action, or, of the counterclaim, or, under paragraph —— of the plaintiff's claim, or, of the injuries alleged in paragraph