JUDGMENT in Default of Appearance-continued.

Where the plaintiff has indorsed a claim for waste, mesne profits, arrears of rent or damages for breach of contract upon the writ, he may enter judgment and proceed as in the case of land (Ord. 13, r. 8).

6. Where Defendant fails to appear to writ issued out of a District Registry. Where the defendant fails to appear, and he had the option of appearing in the District Registry or in London, judgment is not to be signed in the District Registry until notice of appearance in London could have been received by post (Ord. 13, r. 5a).

WHERE the Defendant is under Disability.

The plaintiff, upon default of appearance, may apply to the Court or Judge for an order that some person be assigned guardian to such defendant where such defendant is—

(a) An infant, or

(b) A person of unsound mind not so found by inquisition (Ord. 13, r. 1).

But no such order is to be made unless it appears on the hearing of such application—

1. That the writ of summons was duly served,

and

2. That notice of such application was

after the time allowed for appearance, and at least six clear days before the day in such notice named for hearing the application,

served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such writ.

A.C.L.

WHERE the Defendant is under Disability-continued.

3. And also, in the case of such infant not residing with or being under the care of his father or guardian—

(a) Served upon or left at the dwellinghouse of the father or guardian, if any, of such infant;

(b) Unless the Court or Judge, at the time of hearing such application, shall dispense with such last-mentioned service (Ord. 13, r. 1).

JUDGMENT under Bills of Exchange Act, 1855.

Under the former practice, in case the defendant did not succeed in obtaining leave to appear, the plaintiff was entitled to at once sign judgment; but now the summary procedure under this Act is abolished, and Ord. 2, r. 6, provides as follows:

"Ord. 2, r. 6, is hereby annulled, and no writ shall hereafter be issued under the Summary Procedure on Bills of Exchange Act, 1855 (18 & 19 Vict. c. 67)." (R. S. C., April, 1880, r. 3.)

The plaintiff's remedy will therefore be to specially indorse his writ and obtain judgment under Ord. 14, which we proceed to set out.

JUDGMENT under Ord. 14.

Should the defendant appear, and the writ be specially indorsed under Ord. 3, r. 6, the plaintiff may

(a) On affidavit verifying the cause of action, and swearing that in his belief there is no defence

call on defendant to show cause why the plaintiff should not be at liberty to sign final judgment for the amount indorsed on the writ, with interest, if any, and costs (Ord. 14, r. 1).

JUDGMENT under Ord. 14-continued.

The application to sign judgment under the preceding rule is to be made by summons returnable not less than two clear days after service (Ord. 14, r. 2).

[The affidavit (with the writ annexed to it) stating

that in the belief of the deponent there is no defence to the action, is filed, and thereupon a summons is granted.]

DISCLOSURE of Facts entitling Defendant to defend.

The defendant will be entitled to defend, if he, by affidavit or otherwise

(a) Satisfies the Court or Judge that he has a good defence to the action on the merits, or (b) Discloses such facts as the Court or Judge may think sufficient to entitle him to be permitted to defend (Ord. 14, r. 1).

Should he fail to satisfy the Court or Judge as above, they may make an order empowering the plaintiff to sign judgment (Ord. 14, r. 1).

SHOWING Cause against Application.

The defendant may show cause against such application

1. By offering to pay into Court the sum indorsed on the writ.

2. By affidavit (Ord. 14, r. 3).

Such affidavit is to state whether the defence alleged by him goes to the whole, or part only, and if so to what part of the plaintiff's claim, and the Judge may, if he think fit

(a) Order defendant to attend and be examined upon oath, or

SHOWING Cause against Application-continued.

(b) To produce any books or documents, or copies of, or extracts therefrom (Ord. 14, r. 3). [It has been decided that, upon an application to sign judgment under Ord. 14, the Court or Judge may, in their discretion, permit the plaintiff to file an affidavit in reply to that of the defendant (Davies v. Spence, 1 C. P. D. 719). Subsequently it was decided (in Central Waggon Co. v. North Wales Waggon Co., 39 L. T. (N. S.) 628) that such an affidavit ought not to be allowed, as it would be tantamount to trying the action on affidavit; but again (in Girvin v. Grepe, 13 Ch. D. 177) the affidavit was allowed by Jessel, M. R.]

If it appear

(a) That defence applies only to part of plaintiff's claim, or

(b) That any part of the claim is admitted to be

due,

the plaintiff may have judgment for such parts of his claim as the defence does not apply to, or as is admitted to be due, and defendant may be allowed to defend as to the residue (Ord. 14, r. 4).

But such judgment may be subject to terms, if any:1. As to suspending execution, or,

2. Payment of the amount levied, or part, into Court by sheriff,

3. The taxation of costs,

or otherwise, as the Judge may think fit (Ord. 14, r. 4). [It was decided in Dennis v. Seymour (4 Ex. Div. 80), that the defendant cannot be required to pay to the plaintiff the amount admitted to be due, as the condition of being allowed to defend as to the residue.]

If it appears to the Judge that any defendant has a

SHOWING Cause against Application—continued.

good defence to, or ought to be permitted to defend, and
that any other defendant has not such defence and ought
not to be permitted to defend, the former may
be per-
mitted to defend, and the plaintiff shall be entitled to
sign final judgment against the latter, and may issue
execution without prejudice to his right to proceed
against the former (Ord. 14, r. 5).

Leave to defend. Leave to defend may be given-
1. Unconditionally; or,

2. Subject to such terms as to giving security or otherwise as the Court or a Judge may

think fit.

[If “no order" is made, this is equivalent to leave to defend, although express leave ought to be given (Margate Pier Co. v. Perry, L. T., Feb. 5, 1876, p. 248).]

SETTING aside Judgment by Default.

It should be remembered that under Ord. 29, r. 14, "any judgment by default, whether under this Order or under any other of these rules, may be set aside by the Court or a Judge, upon such terms as to costs or otherwise as such Court or a Judge may think fit." And lapse of time will be no bar to an application to set it aside, where no irreparable wrong will be caused to a plaintiff (Atwood v. Chichester, 3 Q. B. D. 722).

STATEMENT of Claim.

Presuming that the defendant has appeared, and there has been no judgment under Order 14 against him, the plaintiff's next step is to deliver his claim.

Unless the defendant, at the time of appearing,

states that he does not require a statement of