CHAPTER III.

APPEARANCE AND DIRECTIONS.

SECTION I.-APPEARANCE.

1. Appearance set aside on ground that Address is Illusory or Fictitious-0. xii, 12.

UPON motion &c., by counsel for the Plt, and upon reading &c., Let the appearance entered by the Deft be set aside, on the ground that the address for service contained in the memorandum of appearance is illusory or fictitious; And Let notice of this order be given to the Deft by sending a copy of this order in a registered letter to such address.Edell v. Cave, V.-C. Bacon, 12 Dec. 1884, A. 1716; S. C., 54 L. J. Ch. 308.

For a like order made at Chambers, see Goulter v. Pearce, Chitty, J., 4 May, 1872, A. 1017.

2. Leave to a person in Possession, not being a Deft, to appear and defend an Action for Recovery of Land-O. XII, 25.

UPON the application of the N. Building Co., and upon hearing the solrs for the applicants, and upon reading an affidavit of &c., filed &c., whereby it appears that the applicants are in possession of the land and premises sought to be recovered in this action by themselves or their tenants, It is ordered that the applicants, the said N. Building Co., be at liberty to appear and defend this action.-Hartley v. Blackmore, V.-C. M. at Chambers, 7 March, 1876, A. 358.

For form of summons, see D. C. F. 171.

3. Third Party served with Notice of Claim for Indemnity-Directions under 0. XVI, 52.

THE application of the Deft H. for directions consequent upon S., the person served with a third party notice, filed &c., pursuant to the order dated &c., having appeared to such notice, which upon hearing &c., was adjourned to be heard in Court, coming on this day to be heard accordingly, and upon hearing counsel for the applicant, and for the Plts, and for the said S., and upon reading the said notice and order, and the said S. not admitting any liability to indemnify the Deft in respect of the Plts' claim, This Court doth order that the said S. be at liberty to appear at the trial of this action, and take such part as the Judge shall direct, and be bound by the result of the trial; And it is ordered that the question of the liability of the said S. to indemnify the Deft

be tried at the trial of this action, but subsequent thereto. Costs of application reserved.-Coles v. Civil Service Supply Assoc., 26 Ch. D. 529; Barlow v. L. & N. W. Ry. Co., 38 Ch. D. 144.

See Chap. II., Form 11, for previous order for leave to issue the notice.
For form of application, see D. C. F. 86.

4. Leave for a Deft to appear after Judgment-0. XII, 22. UPON the application of the Deft, and upon hearing &c., and the applicant by his solicitor submitting to be bound by the judgment in this action and the proceedings under such judgment, as if he had duly appeared in this action, It is by consent ordered that the applicant be at liberty, notwithstanding the said judgment, to enter an appearance to the writ of summons issued on &c. in this action.-See Amwyl v. Davies, M. R. at Chambers, 2 July, 1878, A. 1294; Re Brown's Estate, Brown v. Drew, M. R. at Chambers, 16 April, 1877, A. 798.

For form of petition of course, see D. C. F. 168.

5. Leave to defend on paying a Sum into Court-0. XIV, 6. UPON the application of the Plt &c. for liberty to sign final judg ment for the amount indorsed upon the writ of summons issued in this action on the day of, together with interest and costs, to be taxed &c., It is ordered that the Deft be at liberty on or before &c. to lodge the sum of £210 in Court as directed by the schedule hereto, or within the like period to give security for such sum of £210 to the satisfaction of the Plt; And it is ordered that upon such lodgment being made or such security being given the Deft be at liberty to defend this action: But in default of the Deft making such lodgment or giving such security on or before &c., It is ordered that the Plt P. be at liberty to sign judgment for £- and his costs of this action to be taxed. [Add lodgment schedule to credit of action.]-See Winnall v. Browne, M. R., at Chambers, 12 April, 1877, B. 967.

6. Deft allowed to defend, after Judgment by Default, on payment of Costs.

UPON motion &c. by counsel for the Deft, and upon hearing counsel for the Plt: Let the judgment dated &c. be discharged. And Let the Deft pay to the Plt his costs of this action subsequent to the delivery of the statement of claim, and up to and including his costs of this motion, such costs to be taxed &c. Deft to deliver defence within fourteen days from the date of order.-Williams v. Brisco, Hall, V.-C., 19 May, 1881, B. 1003.

NOTES.

APPEARANCE GENERALLY.

O. XII, 8, prescribes the mode of entering an appearance.

The memorandum of entering an appearance, which is to be in accordance with R. S. C., App. A., Part II., Form 2, is to contain the Deft's address for service: O. XII, 10; and if such address is illusory or fictitious the appearance may be set aside: r. 12. For cases in which this jurisdiction has been

exercised, see A. v. B., W. N. (83) 174; Edell v. Cave, 33 W. R. 208; 54 L. J. Ch. 308; 51 L. T. 621; Dan. 302.

By O. XII, 25, a person not named as a Deft in a writ of summons for the recovery of land may by leave appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.

If a Deft wishes to take advantage of an irregularity in the issue of the writ, he should not appear, but should move on notice to Plt to set aside the writ; but appearance under protest or with notice of objection to Plt does not preclude the Deft from objecting to the jurisdiction: O. XII, 30; Dan. 301; Firth v. De las Rivas, (1893) 1 Q. B. 768.

The Court refused to set aside writ on the ground that Deft, who had entered a conditional appearance, was not the person really intended to be sued: Zuccato v. Young, W. N. (90) 55; 38 W. R. 474.

By O. XLVIIIA, 5, where persons are sued as partners in the name of their firm, they are to appear individually in their own names; but all subsequent proceedings are nevertheless to continue in the name of the firm.

By O. XLVIIIA, 6, where a writ is served under r. 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a member of the firm sued; and by r. 7, a person sued as a partner may enter an appearance, under protest, denying that he is a partner, but such appearance shall not preclude the Plt from otherwise serving the firm and obtaining judgment against the firm in default of appearance, if no partner has entered an appearance in the ordinary form. As to the effect of appearance by "R., sued as R. & Co.," and subsequent proceedings against R. only, see Munster v. Cox, 10 App. Cas. 680; S. C., 11 Q. B. D. 435, C. A.

A solr employed by the managing partner of a business firm to defend an action brought against the firm in the firm name has authority to enter an appearance in the names of each of the parties individually: Tomlinson v. Broadsmith, (1896) 1 Q. B. 386, C. A.

Where a person has been informed that he has been made Deft, he may before actual service 66 appear gratis" and see Dan. 299. But a person not a party named as Deft to a counter-claim cannot so appear, but must wait until he is served with defence, under O. XXI, 12: Fraser v. Cooper, Hall & Co., 23 Ch. D. 685.

As to the validity and effect of appearance under protest, see Firth v. De las Rivas, (1893) 1 Q. B. 768, where a foreigner, appearing under protest, was held not to have lost his right to object to the jurisdiction.

APPEARANCE BY THIRD PARTY.

By O. XVI, 49, a third party who desires to dispute the PIt's claim against the Deft is to enter an appearance within eight days, and in default of his doing so shall be deemed to admit the validity of the judgment obtained against the Deft, whether by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, as claimed by the notice. After eight days he may apply for leave to appear, and leave may be given upon terms.

By r. 52, if a third party appears pursuant to the third party notice, the Deft giving the notice may apply to the Court or a Judge for directions, and the Court or Judge may, if satisfied that there is a question proper to be tried as to the liability of the third party, order such question, as between the third party and the Deft giving the notice, to be tried in such manner, at or after the trial of the action, as the Court or Judge may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the Deft giving the notice against the third party. And by r. 53, the Court or a Judge, upon the hearing of the application mentioned in r. 52, may, if it shall appear desirable to do so, give the third party liberty to defend the action, upon such terms as may be just.

APPEARANCE AFTER JUDGMENT.

A Deft against whom judgment in default and on substituted service had

been obtained, was allowed to defend on payment of all costs subsequent to
the statement of claim: Williams v. Brisco, 29 W. R. 713. Form 6, sup.
As to appearance after judgment, see Dan. 299, 300; D. C. F. 168, 169.

LEAVE TO DEFEND.

Where there is a question of account (ex. gr., action by mortgagee in possession for mortgage debt), Deft ought, except under very special circumstances, to have leave to defend without any payment into Court: Wallingford v. The Mutual Society, 5 App. Cas. 685. In such case judgment should be signed as security only for what should be found due on the account, without power to issue execution except by leave of Court. Deft being required as a condition to consent to the immediate taking of such account.

SECTION II.-SUMMONS FOR DIRECTIONS.

day of

1. Order on Summons for Directions under O. xxx, 1. UPON the application of the Plt by summons for directions dated &c., and upon hearing &c., and upon reading &c., It is ordered that there be [no] pleadings in this action. And it is ordered that the do, on or before the day of, 1900, deliver to the an account in writing of the particulars of. And it is ordered that, unless such particulars be delivered on or before the said —, 1900, all further proceedings be stayed until the delivery thereof. And it is ordered that the Deft do have days after delivery of the said particulars to deliver his defence. And it is ordered that the Plt and Deft do respectively, on or before the day of 1900, answer on affidavit stating what documents are or have been in their possession or power relating to the matters in question in this action. And it is ordered that the Plt be at liberty to deliver to the Deft, and that the Deft be at liberty to deliver to the Plt, interrogatories in writing as approved by the Judge, and that the said interrogatories be answered as prescribed by O. XXXI, 8 and 28 of the Rules of the Supreme Court.

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2. Order on Notice for subsequent Directions after Original Summons for Directions-0. xxx, 1.

UPON the application of the Plt [or any party to the action] by notice for subsequent directions, dated &c., and upon hearing &c., and upon reading the order for directions, dated &c., It is ordered &c.

For further forms of these orders, see Annual Practice, 1901, Appendix K., Nos. 4A and 4B (for ordinary actions), and Nos. 4E and 4F (for third party summons and order for directions).

For forms of summons for directions, and to dismiss for want thereof, see D. C. F. 194, 195.

NOTES.

By O. xxx, 1.-"(a.) Subject as hereinafter mentioned, in every action a summons for directions shall be taken out by the Plt returnable in not less than four days." (The rule does not apply to proceedings by originating summons: v. inf.)

"(b.) Such summons shall be taken out after appearance and before the plaintiff takes any fresh step in the action other than application for an injunction, or for a receiver, or for summary judgment under O. XIV, or to enter judgment in default of defence under O. XXVII, 2.

"(c.) The summons shall be in the form No. 3A, Appendix K., with such variations as circumstances may require, and shall be addressed to and served upon all such parties to the action as may be affected thereby." (The practice is to require the summons to be served not less than four days before the return of the writ.)

"(d.) This rule shall not apply to Admiralty actions within the meaning of section thirty-four of the Jud. Act, 1873, or to actions coming under the provisions of O. XVIIIA, or to proceedings commenced by originating summons. "(e.) Where, under O. XVIIIA, the Deft applies for a statement of claim, the Judge may deal with such application as if the Plt had been entitled to take out and had taken out a summons for directions."

R. 2. Upon the hearing of the summons the Court or a Judge shall, so far as practicable, make such order as may be just with respect to all the interlocutory proceedings to be taken in the action before the trial, and as to the costs thereof, and more particularly with respect to the following matters-Pleading, particulars, admissions, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, place and mode of trial. Such order shall be in the Form No. 4A, Appendix K., with such variations as circumstances may require." Whether there is jurisdiction to make the usual order for accounts and inquiries, foreclosure or sale on summons for directions, quære: Horton v. Bosson, 80 L. T. 435.

The filing of a statement of claim under O. XIII, 12, as against a Deft not appearing cannot be dispensed with: Re Norman, W. N. (00) 159; and as to effect of dispensing with it in case of appearance, see Milbank v. Francis, W. N. (01) 91.

R. 3. "No affidavit shall be made or used on the hearing of the said summons except by special order of the Court or a Judge."

R. 4. "On the hearing of the summons any party to whom the summons is addressed shall, so far as practicable, apply for any order or directions as to any interlocutory matter or thing in the action which he may desire."

R. 5. "Any application subsequently to the original summons for any directions as to any interlocutory matter or thing by any party shall be made under the summons by two clear days' notice to the other party stating the grounds of the application." The expression "application in Chambers' accordingly includes a notice under this rule. The notice is issued at Chambers without fee. An ordinary summons in lieu of such notice is irregular: Dan. 312.

R. 6. "Any application by any party which might have been made at the hearing of the original summons shall, if granted on any subsequent application, be granted at the costs of the party applying unless the Court or a Judge shall be of opinion that the application could not properly have been made at the hearing of the original summons.'

R. 7. "On the hearing of the summons, the Court or a Judge may order that evidence of any particular fact, to be specified in the order, shall be given by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries or otherwise as the Court or Judge may direct.'

R. 8. " In any action to which r. 1 of this Order applies, if the Plt does not within fourteen days from the entry of the Deft's appearance take out a summons for directions under this Order, or for summary judgment under O. XIV, the Deft shall be at liberty to apply for an order to dismiss the action, and upon such application the Judge may either dismiss the action on such terms as may be just, or may deal with such application in all respects as if it were a summons for directions under this Order."

On summons for directions in a debenture holder's action, where the Master orders that the action be set down for hearing without pleadings and as a short cause, it is convenient that the order made should contain a direction that evidence be taken by affidavit: In re Gutta Percha Corp., Ld., W. N. (99) 251. The affidavit made on the motion for receiver is often sufficient.

And as to summons for directions, see further Dan. 311 et seq.