2. The Like-In Default of Answer to Interrogatories, or Discovery, or Inspection of Documents-0. xxxi. 21.

UPON motion &c. by counsel for the Deft, who alleged that the Deft duly delivered interrogatories in writing for the examination of the Plt, and that by an order, dated &c., the Plt was directed to answer the said interrogatories [or that by an order, dated &c., it was ordered : Recite direction for Plt to give discovery or inspection of documents], and that the Plt having been duly served with the said order, has failed to comply therewith, as by the affidavit of &c., filed &c., appears; Whereupon, and upon reading the said order and affidavit, This Court doth order that this action do stand dismissed &c. [Form 1].

Under this rule a party failing to comply with an order to answer interrogatories, or for discovery or inspection, is also liable to attachment, et v. sup. Chap. VIII., “EVIDENCE.”

3. The Like-In Default of giving Notice of Trial—0. xxxvi. 12.

UPON the application of the Deft &c., And upon hearing the solrs for the applicant and for the Plt, It is ordered that the Plt S., do on or before &c., give notice to the Deft of the trial of this action; And in default thereof, it is ordered that this action do stand dismissed out of this Court for want of prosecution, without further order, with costs, to be taxed &c.

For like order, with direction that the costs are to include the Deft's costs of an application for injunction and receiver, see Crick v. Hewlett, Pearson, J., 24 July, 1884, A. 1147; 27 Ch. D. 354.

4. Plt out of Jurisdiction-Dismissal for Want of Prosecution in

Default of Security for Costs.

WHEREAS by an order, dated &c., it was ordered that the Plt should, on or before &c., procure some sufficient person on her behalf to give security, according to the course of the Court, by bond to the Deft, in the penal sum of £100, conditioned to answer costs, in case any costs should be awarded to be paid by the Plt M., or in lieu thereof the Plt M. was to be at liberty to lodge in Court, to the credit of &c., "Security for Costs," the sum of £100; Now upon the application of the Deft H., and upon hearing the solrs for the applicant and for the Plt, and upon reading &c., It is ordered that the Plt M. do give security for costs, or lodge the said sum of £100 in Court, as directed by the said order, within one month from the date of this order, or in default thereof it is ordered that this action do, without further order, stand dismissed out of this Court for want of prosecution, with costs to be taxed; And it is ordered that in that case the Plt M. do pay to the Deft H. the amount of her costs when taxed; And it is ordered that in the meantime all further proceedings in this action be stayed.Patritzke v. Harris, V.-C. H. at Chambers, 27 April, 1878, B. 1132.

5. Dismissal in Default of Payment by Plt of Costs under former

Order.

UPON motion &c., by counsel for the Defts, who alleged that the Plts had not paid to the Defts the sum of £, the amount of the costs taxed under the order dated &c.; And upon reading an affidavit of &c., of service of notice of this motion, an order dated &c. (directing taxation and payment of costs by the Plts), the certificate of taxation filed &c., an affidavit of &c., This Court doth order that the Plts A. &c., do on or before the day of -, pay to the Defts B. &c., the said sum of £—, being the amount of the said taxed costs; And it is ordered that in default of such payment this action do, without further order, stand dismissed out of this Court, with costs, including the costs of this application, such costs to be taxed &c.; And it is ordered that the Plts A. &c., do pay to the Defts B. &c., the amount of their said costs when taxed.-White v. Bromige, V.-C. H., 31 Jan. 1878, B. 290; 26 W. R. 312.

Unless the words "without further order" are inserted, a further order to dismiss upon default being made will be necessary.

NOTES.

DISMISSAL FOR WANT OF PROSECUTION.

A Deft may obtain an order to dismiss the Plt's action for want of prosecution

(a) If the Plt being bound to deliver a statement of claim does not deliver the same within the time allowed for that purpose (six weeks from Deft's entry of appearance, see O. XX. 1 (a)): 0. xxvII. 1.

(b) If the Plt fails to comply with an order to answer interrogatories or for discovery or inspection of documents: 0. XXXI. 21.

(c) If the Plt fails to give notice of trial within six weeks after the close of the pleadings, or within such extended time as may be allowed: 0. XXXVI. 12. And so if in London or Middlesex notice is given, but the trial is not entered within six days, as required by O. XXXVI. 16, so that the notice is "no longer in force": Crick v. Hewlett, 27 Ch. D. 354.

It seems that in the Chancery Division the application to dismiss for want of prosecution should be made at Chambers rather than by motion in Court: per Jessel, M. R., in Freason v. Lowe, 26 W. R. 138; but if there is reason to expect a contest the motion is properly made in Court: Evelyn v. E., 13 Ch. D. 138. If notice of motion is given, and Plt does not at once submit to speed the cause, and tender the costs of the notice, the Deft, if the usual order is made, will have his costs of the motion in Court: Ibid.; and see Pascoe v. Richards, 29 W. R. 330; Thomas v. Palin, 21 Ch. D. 360.

If the Plt, who has made default in pleading, has become bankrupt, the trustee in bankruptcy must be served with notice of the application to dismiss: Wright v. Swindon Rail. Co., 4 Ch. D. 164.

And see Price v. Rickards, 9 Eq. 35, where the trustee of a creditor's deed of assignment executed by Plt pending suit was ordered within three weeks to take proper proceedings for the purpose of prosecuting the suit, and in default that the bill be dismissed without further order.

Where the Plt appears and gives an explanation of his delay, he is generally put under an undertaking to take further proceedings within some short limited period (a week or fourteen days), and ordered to pay the costs of the application: see Higginbottom v. Aynsley, 3 Ch. D. 288; Sutton v. Huggins, W. N. (75) 235; and the order ought to provide that in default of his taking the particular step within the period limited, the action shall stand dismissed without further order.

If at the end of such extended time the required step has not been taken, the action is at end, and cannot be restored by subsequent order: see Whistler v. Hancock, 3 Q. B. D. 83; Script Phonography Co. v. Gregg, 59 L. J. Ch. 406; nor will the consent of the parties to enlarge the time avail: King v. Davenport, 4 Q. B. D. 402.

Filing interrogatories for the examination of the Plt did not affect the Deft's right to dismiss for want of prosecution: Jackson v. Ivimey, 1 Eq. 693; nor an order on Plt to give security for costs, with stay of proceedings, obtained by the Deft: Le Grange v. McAndrew, 4 Q. B. D. 210.

A Deft who has become bankrupt may move to dismiss: Levi v. Heritage, 26 Beav. 560; secus, a Deft in contempt, until his contempt is cleared: Vowles v. Young, 9 Ves. 173; or unless the Plt has so acted as to waive the contempt: Herrett v. Reynolds, 2 Giff. 409.

And non-compliance with an order to make a further affidavit of documents, obtained, but not served on him, does not prevent a Deft from moving to dismiss: Howe v. Grey, 16 L. T. N.S. 345.

Where an action has been dismissed for want of prosecution, the same not having been set down, the Plt may bring a new action, but must pay the costs of the old one first: Re Orrell Colliery Co., 12 Ch. D. 681; 28 W. R. 145; and see Magnus v. National Bank of Scotland, 36 W. R. 602.

The costs of an action dismissed for want of prosecution are in the discretion of the Court or Judge under O. LXV. 1; and by sect. 49 of the Judicature Act, 1873, the exercise of that discretion is not the subject-matter of appeal, except by leave of the Court or Judge making the order: Snelling v. Pulling, 29 Ch. Div. 85.

On a motion to dismiss for want of prosecution under O. XXXVI. 12, or that the Plt should give security for costs, the Court has discretion to order the Plt to give security: Willmott v. Freehold House Property Co., 33 W. R. 554.

One Deft cannot move to dismiss for want of prosecution for non-delivery of reply where Plt has, with his knowledge, consented to an extension of time as to other Defts, so that the pleadings are not closed: Ambroise v. Evelyn, 11 Ch. D. 759.

SECTION IV.-DISMISSAL AT THE HEARING.

1. Dismissal of Action.

THIS action coming on &c. [Recitals as in Form 1, p. 124], This Court doth order that this action do stand dismissed out of this Court [if so, without costs as against the Defts B. and C., and] with costs as against the [other] Defts, such costs to be taxed by the Taxing Master (in case the parties differ); And it is ordered that the Plt A. do pay unto the Defts [name all the Defts who are to have costs] the amount of their said costs when taxed.

For various usual directions as to costs, see Chap. XVII. For costs out of a fund in Court, see Chap. XVI.

2. Judgment for Deft.

THIS action coming on &c., This Court doth order and adjudge that the Plt do recover nothing against the Deft; and that the Deft do recover against the Plt the sum of £- for his ascertained costs of defence [or his costs of defence to be taxed &c.].

3. Dismissal of Action when Plt does not appear-0. XXXVI. 32.

THIS action coming on for trial [the day of and] this day before this Court, in the presence of counsel for the Deft, no one appearing for the Plt, although the Deft has been served by the Plt with notice of trial; And upon hearing counsel for the Deft, This Court doth order that this action do stand dismissed out of this Court with costs, &c. [Form 1].

4. Judgment dismissing Action in Default of Plt's Appearance set aside, and Action restored on Payment of Costs of the Day0. xxvII. 15; XXXVI. 33.

UPON motion &c., and upon hearing counsel for the Deft, It is ordered that the judgment in this action, dated &c., whereby it was ordered that the Plt's action should stand dismissed out of this Court with costs, be set aside; And it is ordered that the Plt C. do pay unto the Deft J. his costs occasioned by this action being placed in the paper of causes for hearing on the day of, and of this application, such costs to be taxed &c.; And upon payment of the said costs it is ordered that this cause be restored to the list of actions for trial before this Court.-Cockle v. Joyce, Fry, J., 16 Nov. 1877, A. 2010; 7 Ch. D. 56.

NOTES.

By O. xxxvI. 31, "if when a trial is called on, the Plt appears and the Deft does not appear, then the Plt may prove his claim so far as the burden of proof lies upon him."

In order to complete such proof the Plt will be required to prove service of notice of trial on the Deft: Cockshott v. London Cab Co., 26 W. R. 31; but see Chorlton v. Dickie, 13 Ch. D. 160; 28 W. R. 228.

If the Plt (having given notice of trial) does not appear when the action is called on for trial, the Deft is entitled, under O. XXXVI. 32, to judgment dismissing the action with costs: see Farrell v. Wale, 36 L. T. N.S. 95; and will not be required to prove that he has been served with notice of trial: James v. Crow, 7 Ch. D. 410 (not following on this point Cockle v. Joyce, Ib. 56); and see Exp. Lows, Ib. 160; Re Palmer, Skipper v. S., 32 W. R. 83.

If the Deft has a counter-claim he must, in order to obtain judgment on it, prove the claim so far as the burden of proof lies on him: see O. XXXVI. 32. Where one of several Defts has, in default of notice of trial by the Plt, given notice of trial under O. XXXVI. 12, his co-Defts cannot, it seems, have the action dismissed as against them, at least if they have not been served with the notice of trial: see Tatton v. Lond. & Lanc., &c. Co., 8 Eq. 450.

As to notice of trial, and entering the action for trial, see Chap. XII. On payment of the costs of the day and of the application, an action which has been dismissed for non-appearance of the Plt, or in which judgment has been obtained by the Plt in the absence of the Deft, through mistake on the part of his solr, may be restored to the paper: Birch v. Williams, 24 W. R. 700; Burgoine v. Taylor, 9 Ch. D. 1; and see Southampton Steamboat Co. v. Rawlins, 11 Jur. N.S. 230.

The application to set aside a judgment obtained in default of appearance at the trial, must be made within six days after the trial: 0. XXXVI. 33; and see Walter v. James, 34 W. R. 29; but an extension of time has been granted when the default was that of the solr and not of the party who applied within six days after hearing that the trial had taken place: Michell v. Wilson, 25 W. R. 380.

An appeal to set aside such a judgment will not be encouraged: Vint v. Hudspith, 29 Ch. Div. 322.

An application to set aside a judgment by default was refused, the defence of the Deft making the application having been struck out for wilfully refusing production of documents: Haigh v. H., 31 Ch. D. 478.

A judgment dismissing an action with costs carries the costs of a motion by the Plt which stood over until the trial, and was not then brought on: Gosnell v. Bishop, 38 Ch. D. 385.

Where a solr brings an action without authority, the order will be that he pay the costs of the Plt as between solr and client, and those of the Deft as between party and party, following the common law practice as preferable to the old Chancery practice: Newbiggin-by-the-Sea Gas Co. v. Armstrong, 13 Ch. Div. 310; Nurse v. Durnford, 13 Ch. D. 764; and quare, whether solr and client costs might not, in special cases, be given to Deft as well as Plt: Andrews v. Barnes, 39 Ch. Div. 133.

As to dismissal of third party, when the whole matter cannot be disposed of at one trial, see Schneider v. Batt, 8 Q. B. Div. 701.

Where the decision on a point of law under O. xxv. 2, substantially disposed of the whole action, the action was dismissed: Percival v. Dunn, 29 Ch. D. 128; O'Brien v. Tyssen, 28 Ch. D. 372.

RES JUDICATA.

As to the requisites to constitute res judicata, see The Duchess of Kingston's case, 2 Sm. L. C., 8th ed. 832; Caird v. Moss, 33 Ch. Div. 133, at p. 28 (per Kay, J.).

An unsuccessful litigant cannot be allowed to commence the litigation anew upon the mere allegation of an additional fact; he must be able to show that such fact entirely changes the aspect of the case, and that information of it was not, and could not by reasonable diligence be obtained by him before: Phosphate Sewage Co. v. Malleson, 4 App. Cas. 801.

An unsatisfied judgment against one joint contractor is a bar to an action against the other joint contractor on the original judgment: Cambefort & Co. v. Chapman, 19 Q. B. D. 229; Kendall v. Hamilton, 4 App. Cas. 504, including a feme covert bound only as to her separate property: Hoare v. Niblett, 39 W. R. 491.

Where damage to goods and injury to person are caused by one and the same wrongful act, distinct causes of action arise, and judgment in respect of the damage to the goods is no bar to a subsequent action in respect of the personal injury: Brunsden v. Humphrey, 14 Q. B. Div. 141.

In pleading res judicata, it is not necessary to set forth in detail the pleadings in the previous action; but the Court will look at them in order to judge whether the same questions were at issue: Houston v. Marquis of Sligo, 29 Ch. Div. 448.

Whether a previous judgment obtained before trial, but after writ issued, can operate as res judicata, quare: Houston v. Marquis of Sligo, sup.

After money had been paid under a judgment founded on the construction of an agreement, an action to rectify the agreement, on the ground that such construction was contrary to the intention of all parties, could not be maintained: Caird v. Moss, 33 Ch. Div. 22.

There can be no res judicata in respect of an issue the finding of which was not necessary to the decision in the previous case, but which was merely decided incidentally: Concha v. C., 11 App. Cas. 541; and as to the meaning of "incidentally," see Priestman v. Thomas, 9 P. Div. 210.

As to the effect of a previous county court judgment, sco Clarke v. Yorke, 52 L. J. Ch. 32; Webster v. Armstrong, 54 L. J. Q. B. 236.

A petitioner in divorce proceedings is not precluded from repeating charges of adultery contained in a previous petition which has been dismissed: Hall v. H., 48 L. J. P. D. 57.