By r. 5, "where the writ is indorsed with a claim for detention of goods and pecuniary damages, or either of them, and the Deft fails, or all the Defts if more than one fail, to appear, the Plt may enter interlocutory judgment, and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons. But the Court or a Judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way which the Court or Judge may direct."

By r. 6, "where the writ is indorsed as in the last preceding rule mentioned, 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 sign interlocutory judgment against the Deft or Defts so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the Deft or Defts suffering judgment by default, at the same time as the trial of the action or issue therein against the other Deft or Defts, unless the Court or a Judge shall otherwise direct. Provided that the Court or a Judge may order that instead of a writ of inquiry or trial, the value and amount of damages, or either of them, shall be ascertained in any way which the Court or Judge may direct."

By r. 7, "where the writ is indorsed with a claim for detention of goods and pecuniary damages, or either of them, and is further indorsed for a iiquidated demand, whether specially or otherwise, and any Deft fails to appear to the writ, the Pit may enter final judgment for the debt or liquidated demand, interest and costs against the Deft or Defts failing to appear, and interlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in such of the preceding rules of this Order as may be applicable."

By r. 8, in case no appearance shall be entered in an action for the recovery of land, within the time limited by the writ for appearance, or if an appearance be entered but the defence be limited to part only, the Plt shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply."

The

Rule 8 does not provide expressly for the case of one out of several Defts making default, but the practice has been established in the Queen's Bench Division to allow judgment to be signed as against the Deft or Defts who have made default, although there are other Defts who are not in default. effect of the judgment is to prevent the Deft against whom judgment has been signed from entering appearance before final judgment is obtained. The final judgment being that the Plt recovers possession of the land, includes all the Defts.

By r. 9, "where the Plt has indorsed a claim for mesne profits, arrears of rent, double value, or damages for breach of contract, or wrong or injury to the premises claimed, upon a writ for the recovery of land, he may enter judgment as in the last preceding rule mentioned for the land, and may proceed as in the other preceding rules of this Order mentioned as to such other claim so indorsed."

By r. 10, "where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the Court or a Judge to set aside or yary such judgment upon such terms as may be just."

DEFAULT OF PLEADING.

Judgment in default of pleading can only be entered in actions for— 1. Debt or liquidated demand: O. xxvII. 2, 3.

2. Detention of goods and pecuniary damages, or either of them: O. XXVII. 4, 5.

3. For debt or liquidated demand, and also for detention of goods and pecuniary damages, or pecuniary damages only: 0. XXVII. 6.

4. For the recovery of land: O. XXVII. 7.

5. And also where the writ for the recovery of land is indorsed for mesne profits, arrears of rent, or damages for breach of contract: O. XXVII. 8. A probate action proceeds notwithstanding the default: r. 10.

In all other actions, if the Deft makes default in delivering a defence, the

Plt may set down the action on motion for judgment: r. 11; and where Plt has not put in a defence to a counterclaim, the Deft cannot sign judgment for default of pleading, but must move for judgment: Jones v. Macaulay, (1891) 1 Q. B. (C. A.) 221; Higgins v. Scott, 21 Q. B. Div. 10.

Notwithstanding r. 13, a statement of defence delivered out of time is not to be treated as a nullity: Gill v. Woodfin, 25 Ch. Div. 707; Montagu v. Land Corporation of England, 56 L. T. N.S. 730; nor was a reply under the rules of 1875: Graves v. Terry, 9 Q. B. D. 170; and as to mode of dealing with such a defence on motion for judgment, see Gibbings v. Strong, 26 Ch. Div. 66; Montagu v. Land Corporation of England, sup.

Where an action is proceeding in default of appearance under O. XIII. 12, as if the Deft had appeared, pleadings and documents (including an amended writ: Re Hartley; Nuttall v. Whittaker, (1891) 2 Ch. 121) are to be delivered by being filed: O. XIX. 10; and the Plt can then proceed in default of pleading under O. XXVII. 2—8.

Where the Deft is personally served with statement of claim it need not also be filed: Renshaw v. R., 28 W. R. 409; Phillips v. Kearney, 58 L. J. Ch. 344. Notwithstanding O. xx. r. 4, which provides that the Plt may alter, modify, or extend his claim without any amendment of the indorsement of the writ, the Plt cannot, when the Deft has not entered appearance, obtain judgment for more than he has claimed by the writ: Gee v. Bell, 35 Ch. D. 160; Kingdon v. Kirk, 37 Ch. D. 141; Law v. Philby, 56 L. T. N.S. 522; 35 W. R. 450.

Where the Plt does not put in a reply to a counterclaim, judgment on the counterclaim must be obtained on motion for judgment.

MODE OF ENTERING JUDGMENT (1.) ON DEFAULT GENERALLY.

In the Chancery Division, judgments upon default, as well as all other judgments, are entered at the registrar's office. The documents required to be produced being produced and examined, and found regular and sufficient, judgment is entered.

Judgments by default are entered under date of, and take effect from, the day on which the requisite documents are left with the proper officer: see O. XLI. 4.

Two printed forms of judgment properly filled up are to be produced to the registrar.

Where the writ is specially indorsed, interest, calculated up to the day of entering judgment, should, if claimed, be added to the amount indorsed on the writ; and as no amount has been fixed for costs, the judgment will be "with costs to be taxed," and the taxing master will tax the costs with or without notice, as the case may require.

The documents being produced and found correct, both copies of the judgment will be marked as examined. In judgments for default of appearance the affidavit of service, and in judgments for default of pleading the statement of claim, must be filed by the solr, and a note of filing will be made on the judgment on which the fee stamp (108.) is impressed.

The registrar will then pass the judgment as he would any other judgment or order by putting his initials to it, and affixing his seal to the duplicate, and it will be entered immediately at the entering seat, the duplicate being left with the clerks of entries. When entered it will be marked with the folio of the entry, indexed and transmitted to the Central Office.

(2.) IN DEFAULT OF APPEARANCE.

On applying in the Chancery Division to enter judgment in default of appearance there must be produced

1. The original writ.

2. The affidavit of service. This must show when, where, and how such service was effected (see O. LXVII. 9), and must also comply with the provisions of O. IX. 15: see sup. Chap. II. Before the judgment is passed the affidavit must be filed, and a note of the filing marked on the judgment.

The affidavit of service cannot be dispensed with: Ford v. Mieske, 16 Q. B.

D. 57.

Service of the writ must be personal, unless substituted or other service has

been ordered (O. IX. 2), except in cases mentioned in rr. 3, 6-8. In the case of substituted service the order for such service must be produced. In case of such service being by post the writ and order are (unless the order shall otherwise direct) to be deemed to be served on the day following the day on which a prepaid letter containing such copies shall have been posted: P. M. R. 17.

In the case of partners or a firm, or a corporation, service must be in accordance with rr. 6-8. When the Defts are sued as a firm, judgment will be against the firm, and execution will issue in accordance with O. XLVIIIA. 8. On applying to enter judgment for recovery of possession of part of land under О. XIII. 8, the certificate of the Central Office of limited defence must be produced, or the notice signed by the Deft or his solr, which is referred to in Ö. XII. 28.

(3.) IN DEFAULT OF PLEADING.

On applying to enter final judgment in default of pleading under O. XXVII. 2, 3, 7, 8, or interlocutory judgment under rr. 4, 5, 8, the certificate of the Central Office of appearance must be produced, and also the statement of claim, unless it appears by such certificate that the Deft did not require a statement of claim to be delivered.

If the statement of claim does not show the date of delivery, which must be ten clear days before judgment is entered (O. XXI. 6), the date must be indorsed.

Before the judgment is passed the statement of claim must be filed at the Central Office, and the filing will be noted in the margin of the judgment. In the Queen's Bench Division judgment in default of defence against a married woman cannot be signed unless the statement of claim contains an allegation that the Deft had separate property at the date of the contract in respect of which the action is brought: P. M. R. 17.

PROCEEDINGS IN DISTRICT REGISTRIES.

Where a cause or matter is proceeding in a District Registry, all proceedings, except where by the rules it is otherwise provided, or the Court or a Judge shall otherwise order, are to be taken in the District Registry, down to and including the entry of final judgment, and every final judgment and every order for an account by reason of the default of the Deft or by consent is to be entered in the District Registry in the proper book, in the same manner as a like judgment or order in an action proceeding in London would be entered in the Central Office: O. xxxv. 1. Where the writ of summons is issued out of a District Registry, and the Plt is entitled to enter interlocutory judgment under any of the rules of O. XIII., or where the cause or matter is proceeding in a District Registry, and he is entitled to enter interlocutory judgment under any of the rules of O. XXVII., in either such case interlocutory judgment, and when damages shall have been assessed final judgment, is to be entered in the District Registry, unless the Court or a Judge shall otherwise order: r. 2.

Where final judgment is entered in a District Registry, costs are to be taxed there unless otherwise ordered: O. xxxv. r. 4.

Where a writ is issued out of a District Registry, if the Deft resides or carries on business there he must, and if not he may, appear in the district: O. XII. 1-5, and see O. IV. 1—3, as to issue and indorsement of writ.

When any Deft (unless a merely formal Deft, or one who has "no substantial cause to interfere in the conduct of the action ") appears in London, the action proceeds in London: O. XII. 7.

If appearance by a sole Deft or by all the Defts is entered in the district the action proceeds there: r. 6.

A Deft to a district writ appearing in London must give notice the same day to the Plt: r. 9.

As to default in such a case, see O. XIII. 11, sup. p. 150.

"When a cause or matter in the Chancery Division is proceeding in a District Registry, all certificates of the chief clerk and taxing officer, and all other documents (required to be filed) used in London before the Judge in Chambers, or before any taxing officer or referee, and not already filed

in the District Registry, are to be fed in the same office as they would have been filed in if the proslings had originally commenced in London, and if the Court or Judge shail so direct, office copies thereof shall be transmitted to the District Registry": 0. xxxv. 21; and actions for trial elsewhere than in London or Middlesex are to be entered for trial with the Associates, and not in the District Registries: 0. XXXVI. 22b; and see Jud. Act, 1873,

8. 64.

As to the entry of interlocutory and final judgments in the District Registry, see 0. XXXV. 2; and as to entry in Central Office, see r. 3.

When a cause or matter is proceeding in a District Registry, writs of execution for enforcing any judgment thereon, and all summonses under the Debtors Act, shall issue from the District Registry unless otherwise ordered, and where final judgment is entered in the District Registry costs are to be taxed there unless otherwise ordered: r. 4.

Where an action proceeds in a district the Registrar may exercise all such authority and jurisdiction as may be exercised by a Judge at Chambers, except such as a master or chief clerk is precluded from exercising: r. 6.

Where a cause or matter is proceeding in the District Registries of Liverpool or Manchester, the Registrar may act as a chief clerk of the Judge of the Chancery Division to whom the cause or rule is assigned, and as Registrar and taxing master according to directions to be given by the Judge, provided that no order for payment of money out of Court for an amount exceeding 507, shall be made except by the Judge in person, and provided that no District Registrar who is a practising solr shall tax costs: r. 6a.

Applications are to be made in the same manner as at Chambers: r.7; and to be in like manner subject to reference or appeal to and control by the Judge to whom the action is assigned: rr. 8-12.

The discretion of a Judge to order a sale, in actions where the accounts are being taken in a District Registry, to take place in his Chambers will not be interfered with by the Court of Appeal: Macdonald v. Foster, 6 Ch. Div. 193.

Jud. Act, 1873, s. 49, as to appeals from orders by consent, or as to costs only, does not apply to orders by a District Registrar: Foster v. Edwards, 48 L. J. C. P. 767.

Accounts and inquiries ought not to be taken by District Registrars unless the judgment so directs: Re Bowen, Bennett v. Bowen, 20 Ch. D. 538; Re Smith, Hutchinson v. Ward, 6 Ch. D. 692.

Certificates or reports by District Registrars should follow the form and practice of a chief clerk's certificate: Re Bowen, sup.

Payment of money into Court in an action commenced in District Registry should be under the Chancery Funds Act and Rules, not into a bank to "the credit of the District Registrar": Finlay v. Davis, 12 Ch. D. 735.

As to setting down on motion for judgment actions in which default has been made in a District Registry, v. inf. p. 158.

By Jud. Act, 1873, s. 66, the Court or a Judge may direct any books or documents to be produced, or accounts or inquiries taken or made in the office of or by any District Registrar, and may act on his report.

Actions may be removed from the District Registry:

1. In any case by an order of the Court or a Judge, or of the District Registrar: Jud. Act, 1873, s. 65; 0. xxxv. 16.

2. By notice from the Deft or his solr, served on the other parties, and delivered to the District Registrar: see r. 14; (a) when the writ is specially indorsed under О. III. 6, and the Deft has obtained leave to defend, or has appeared, and the Plt has not for four days given notice of an application for an order against him under O. XIV.; (b) when the writ is not specially indorsed, at any time after the Deft has appeared, and before delivering a defence, or the expiration of the time for doing so: 0. xxxv. 13. But a merely formal, &c. Deft, has no right to give such notice: r. 14.

Actions may by order be removed from London to a district registry:

rr. 16, 17.

When an action is removed, the file and a copy of the entries in the books are transmitted: r. 20; Jud. Act, 1873, s. 65.

And as to removal from District Registry, v. post, Chap. XXXIV., “TRANSFER AND CONSOLIDATION."

O. xxxv. 5, provides that where an action proceeds in a District Registry

all proceedings relating to (a) leave to enter judgment under O. XVI. 50 and 51, (b) leave to issue or renew writs of execution, (c) examination of judgment debtors for garnishee purposes, (d) garnishee orders, () charging orders nisi, shall, unless the Court or a Judge otherwise order, be taken in the District Registry.

By 44 & 45 V. c. 68, s. 22, a district registrar shall not, either by himself or his partner, be directly or indirectly engaged as solicitor or agent for a party to any proceeding whatsoever in the district registry of which he is registrar.