GROUNDS OF JUDGMENT.

Formerly the Court, in some instances, directed the reason of its decree to be specially entered therein: Maynard v. Moseley, 3 Swa. 653; Onions v. Tyrer, 1 P. W. 343; Gibson v. Kinven, 1 Vern. by Raith. 67, n.; Dux Hamilton v. Dom. Mohun, L. C., May 1710, A. 340; How v. Garrard, L. C., 5 May 1710, A. 301.

But this practice is not usual: Exp. E. Пlchester, 7 Ves. 373.

Nevertheless, the utility of it has been noticed: Bax v. Whitehead, 16 Ves. 24; Gordon v. G., 3 Swa. 478.

And it is sometimes adopted: Gordon v. G., sup.; Jenour v. J., 10 Ves. 573; A. G. v. Clapham, 4 D. M. & G. 607; Austin v. A., 11 Jur. N.S. 536.

DECLARATION OF RIGHT.

The Court frequently prefaces its judgments by declarations of matters of fact, or of the rights of the parties, and then proceeds to decree the consequent relief. Thus, in judgments to execute the trusts of wills relating to real estate, the Court often declares the will to be well proved, and that the same ought to be established, and the trusts thereof performed; and so, where the Court gives effect to an agreement, or an equitable mortgage, or construes a will or other instrument, or sets an instrument aside, and in other cases.

And where a party establishes his right to property, the direction to transfer it to him is often prefaced by a declaration of his title: Jenour v. J., 10 Ves. 568.

Formerly it was not the practice to make a declaration in orders on petition or motion; but in Re St. Nazaire Co., 12 Ch. Div. 88, it was approved of, and it is now the usual practice.

The practice as to declaring rights and determining questions not only as between the Plt and Deft, but as between co-Defts, and also between Plt or Deft, and other persons whom it is desirable to bind once for all by the judgment in the action, has been materially altered under the new procedure: see Jud. Act, 1873, s. 24 (7); O. XVI. 48-55; XXI. 11, 12, 13; Treleven v. Bray, 1 Ch. D. 176; Harry v. Davey, 2 Ch. D. 721.

The word indemnity in O. XVI. 48 means a right arising from contract, express or implied, or under some statute, or depending upon some equitable doctrine, and must not therefore be confounded with a claim for damages: Birmingham, &c. Land Co. v. L. & N. W. Rail. Co., 34 Ch. Div. 261; 35 W. R. 173.

Formerly the Court would not decide rights between co-Defts: Thomas v. Lloyd, 25 Beav. 620; except where necessary in order to determine the right of the Plt, or unless the evidence was clear and the case ripe for decision: Jolly v. Arbuthnot, 4 D. & J. 245; Gresley v. Mousley, 4 D. & J. 99; Cottingham v. E. Shrewsbury, 3 Ha. 637; but this is now altered by Jud. Act, 1873, s. 24 (7) and see O. XVI. 48-55; XXI. 11—13.

For form of order where issues are raised between co-Defts, see Bagot v. Easton, V.-C. B., 11 Ch. D. 392.

Formerly it was not the practice of the Court in ordinary suits to make a declaration of right, except as introductory to relief which it proceeded to administer; but by the 13 & 14 V. c. 35, s. 14, the Court was empowered, on a special case being stated for its opinion, to make such a declaration of it without administering any consequent relief. This Act is repealed by 46 & 47 V. c. 49 (Sched.), but is in substance re-enacted by O. XXXIV. 8.

By O. xxv. 5, "no action or proceeding shall be open to objection on the ground that a mere declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not": and see O. XXXIV. 8.

The power conferred by O. xxv. 5, is discretionary: Re Berens, W. N. (88) 95; and the Court has always been reluctant to make declarations of future rights: Langdale v. Briggs, 4 W. R. 703; or as to rights of parties in a contingency which has not happened: Dowling v. D., 1 Ch. 612; or upon a fictitious interest created for the purpose of obtaining a decision: Bright v. Tyndall, 4 Ch. D. 189; nor would the Court construe a mere legal devise at the request of some of the parties, where some of them were infants: Webb v.

Byng, 8 D. M. & G. 633; but where an executory gift over was void as in restraint of alienation, the Plt was entitled to a declaration as to the invalidity of the gift over: Re Dugdale, D. v. D., 38 Ch. D. 176, 183; and see Walmsley v. Foxhall, 1 D. J. & S. 451, where persons affected by a declaration of future rights in remainder were held entitled to appeal when the remainder fell in five years afterwards; secus, after forty-five years: Curtis v. Sheffield, 30 W. R. 581; 20 Ch. D. 398; 21 Ch. Div. 1; or after twelve years: Fussell v. Dowding, 27 Ch. D. 237.

The Court will not declare a merely legal right: Birkenhead Docks v, Laird, 4 D. M. & G. 732.

SECTION II.-JUDGMENTS.

1. Judgment after Trial on Circuit upon Associate's Certificate under O. XXXVI. 41, 42.

THIS action, having on the &c., been tried by (name the Judge) and a common jury of the county of and the jury having found a verdict for the Defts, and the said Judge having ordered that judgment be entered for all the Defts with costs, as by the associate's certificate appears; Therefore it is adjudged that the Plts recover nothing against the Defts, and that the Defts recover against the Plts their costs of defence, to be taxed &c.-Owen v. Henshaw, V.-C. H., 30 May, 1877, B. 944.

As to the form of order for the trial of an action, or any question in an action pending in the Chancery Division before a jury, see Wood and Ivery Limited v. Hamblet, 6 Ch. D. 113.

For form of order on motion for judgment after trial, see also Hunt v. City of London, &c. Co., V.-C. H., 26 Nov. 1878, A. 2369.

2. Leave to enter Judgment for the Amount to be certified on an Inquiry as to Damages-0. XIII. 6; XXVII. 4.

UPON the application &c., and the Pit by his solrs not desiring to have the value of the furniture in the writ of summons (statement of claim) mentioned assessed, It is ordered that instead of a writ of inquiry to assess the damages claimed by the said writ of summons (statement of claim), the following inquiries be made, that is to say: 1. An inquiry what damages the Plt has sustained by detention of the furniture and other articles in the indorsement of the writ mentioned; 2. An inquiry what damages the Plt is entitled to recover in the nature of mesne profits for the occupation by the Deft of the dwellinghouse and furniture in the indorsement of the writ mentioned; And the Plt is to be at liberty to sign judgment for what shall be certified in pursuance of this order to be due to him in respect of such damages, and for the costs of this application and consequent thereon, such costs to be taxed by the Taxing Master.-Bundy v. Board, M. R. at Chambers, 20 June, 1876, A. 1123.

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3. Judgment on Report of Official or Special Referee adopted by the

Court-0. XXXVI. 54.

MR. to whom it was referred by the order dated &c. to inquire as [official] special referee what if anything ought to be paid to the Plt by way of damages for the injury mentioned in his report dated &c., having by his report dated &c., which has, pursuant to sect. 13 of the Arbitration Act, 1889, been adopted by the Judge, assessed such damage at £, It is this day adjudged that the Plt do recover against the Deft such sum of £-.

In this case the costs of the reference had by agreement been borne by the parties equally.

The order is drawn up as of course on the report being adopted.

4. Judgment for Costs under O. XXIV. 3.

THE Plt having this day confessed the defence of the Deft stated in paragraph of the Deft's statement of defence, and in so much of paragraph of such statement of defence as states that &c., It is adjudged that the Plt do recover against the Deft his costs of this action up to &c., the date of the delivery of the Deft's statement of defence, such costs to be taxed &c.

5. Leave to sign Final Judgment notwithstanding Appearance

0. XIV. 1.

UPON &c. and upon reading, &c., It is ordered that the Plts be at liberty to sign final judgment in this action for the amount indorsed on the writ with interest, if any, and costs to be taxed, and that the costs of this application be £-.

6. Final Judgment after the above.

THE Deft having appeared to the writ of summons herein, and the Plt having by order dated &c., obtained leave to sign final judgment under O. XIV. 1, for £-, It is this day adjudged that the Plt recover against the Deft £- and costs to be taxed.

7. Judgment by Default-0. XIII. 3; xxvii. 2.

THE Defts [or the Deft D.] not having appeared to the writ of summons [or not having delivered any statement of defence], It is this day adjudged that the Plt recover against the Defts [or the Deft D.] £— and costs to be taxed.

8. Judgment in default of Appearance in Action for Recovery of Land-0. XIII. 8.

No appearance having been entered to the writ of summons, It is this day adjudged that the Plt recover possession of the land in the indorsement of the writ described as &c.

[N.B.-This judgment carries no costs.]

9. Judgment in default of Defence in Action for Recovery of Land― 0. XXVII. 7.

No statement of defence having been delivered in this action, It is this day adjudged that the Plt recover possession of the land in the indorsement of the writ described as &c., with his costs to be taxed.

10. Judgment in default of Appearance in Claim for Detention of Goods, or Damages-0. XIII. 5.

No appearance having been entered to the writ of summons in this action, It is this day adjudged that the Plt do recover damages to be assessed.

11. Judgment in default of Pleading in a like Action-0. XXVII. 6.

No statement of defence having been delivered in this action [by the Deft D.], It is this day adjudged that the Plt do recover [against the Deft D.] damages to be assessed.

12. Judgment in default of Appearance or Defence after Assessment of Damages-0. XIII. 7; xxvII. 9.

THE Defts not having appeared to the writ of summons in this action, [or not having delivered a statement of defence], and a writ of inquiry dated &c. having been issued directed to the sheriff of &c., to assess the damages which the Plt was entitled to recover, and the said sheriff having by his return dated &c. returned [or such damages having by direction of the Judge been ascertained at Chambers, and it appearing by the chief clerk's certificate] or, [if any other method has been adopted, state it,] that the said damages have been assessed [or ascertained] at £, It is this day adjudged that the Plt recover against the Defts £- and costs, to be taxed.

13. Judgment after Order for Plt to be at liberty to sign Judgment unless Money paid into Court under O. XIV. 3.

THE Deft not having paid into Court the sum of £- as by the order dated &c. directed, It is pursuant to the said order this day adjudged that the Plt recover against the Deft £- and costs to be taxed.

14. Judgment in default of Appearance where Writ is indorsed with a Liquidated Demand—O. x111. 3, 4.

THE Deft not having appeared to the writ of summons, and the Plt having filed an affidavit of service, It is this day adjudged that the Plt recover against the Deft £-, together with interest thereon at the rate of £5 p. c. per ann., or (other rate specified, if any), and costs to be taxed.

15. Judgment set aside.

UPON motion, &c., by counsel for the Deft, and upon hearing counsel for the Plt in the first-mentioned action, Let the order dated &c., whereby it was ordered that the Plt sign final judgment for the amount indorsed on the writ of summons, with interest &c., be discharged, and let the judgment entered up in pursuance thereof on the day &c., be set aside. Stay further proceedings in firstmentioned action. Liberty to Plt in first-mentioned action to come in and prove for his debt and costs in the second-mentioned action, but exclusive of his costs of this motion which he is not to have or prove for in the second-mentioned action.-Cottrell v. Briggs, Chitty, J., 9th Dec. 1887, A. 1844; W. N. (1887) 240.

NOTES.

DEFAULT OF APPEARANCE.

Judgment in default of appearance may be entered:

1. Where the writ is specially indorsed under O. III. 16: 0. XIII. 3, 4. 2. Where it is not specially indorsed: 0. XIII. 5—8.

3. For the recovery of land: O. XIII. 8.

By O. XIII. 3, "where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and the Deft fails, or all the Defts, if more than one, fail, to appear thereto, the Plt may enter final judgment for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any), or (if no rate be specified) at the rate of five p. c. per ann., to the date of the judgment, and costs."

Under this rule judgment may be signed for the liquidated demand notwithstanding that the writ is also indorsed with a claim for an account and foreclosure: Bissett v. Jones, 32 Ch. D. 635.

Where the Plt has taken no step for a year, a month's notice must be given under O. LXIV. 13, before judgment can be signed: Webster v. Myer, 14 Q. B. Div. 231.

Where a writ of summons is indorsed under O. III. 8 (in a case, that is, of ordinary accounts, as, for instance, a partnership, exorship, or ordinary trust account), and the Deft fails to appear, the Plt may, after filing an affidavit of service, or of notice in lieu of service, as the case may be (O. XIII. 2), obtain an immediate order for the account claimed, with usual directions: O. xv. 1. But only common accounts and inquiries can be directed under this rule, and not accounts and inquiries the right to which depends on the Plt establishing a case for them at the hearing: Re Gyhon, Allen v. Taylor, 29 Ch. Div. 834. The order is to be made on an application at Chambers supported by an affidavit of the grounds of the application: O. xv. 2.

Where the writ was against a firm, and one member of the firm entered appearance as such, but the others did not appear, judgment in default of appearance could not go against the firm: Adam v. Townend, 14 Q. B. D. 103; and see Jackson v. Litchfield, 8 Q. B. D. 474.

Where the writ was served first on the firm and afterwards on an alleged partner, and judgment by default was signed against the firm within eight days after service on such partner, he was entitled to have the judgment set aside: Alden v. Beckley, 25 Q. B. D. 543.

By O. XIII. 4, "where the writ of summons is indorsed for a liquidated demand, whether specially or otherwise, and there are several Defts, of whom one or more appear to the writ, and another or others of them fail to appear, the Plt may enter final judgment, as in the preceding rule, against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with the action against such as have appeared."