Claim, detinue and damages enter final judgment as in the preceding section 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. C.O., c. 21, r. 91. 92. Where the plaintiff's claim is for detention of goods and pecuniary damages or either of them and the defendant fails Nonappearance or all the defendants if more than one fail to appear on application of the plaintiff the judge may assess the value or amount of damages or either of them or order that they shall be ascertained in any way he may direct and judgment shall be entered thereupon with costs of suit. C.O., c. 21, r. 92. Striking out appearing defendants Interlocutory judgment against nonappearing defendants Claim, detinue and liquidated demand Claim Recovery of land 93. Where in an action for detention of goods and pecuniary damages or either of them there is more than one defendant and one or more of such defendants have appeared while one or other of the defendants have not the judge on application of the plaintiff may order the striking out of any one or more of the defendants who has or have appeared on payment of costs or otherwise as may be considered just and allow the plaintiff to proceed with his action against the defendant or defendants who has or have not appeared. C.O. c. 21, r. 93. 94. Where the plaintiff's claim is for detention of goods and pecuniary damages or either of them and there are several defendants of whom one or more appear to the writ and another or others of them fail to appear the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear and on application of the plaintiff the value of the good and the damages or either of them as the case. may be shall be assessed as against the defendant or defendants failing to appear at the same time as the trial of the action or issue therein against the other defendant or defendants unless the judge shall otherwise direct. C.O., c. 21, r. 94. 95. When the plaintiff's claim is for detention of goods and pecuniary damages or either of them and also for a liquidated demand and any defendant fails to appear to the writ the plaintiff may enter final judgment for the debt or liquidated demand, interest and costs against the defendant or defendants failing to appear and proceed as mentioned in such of the rules of this order as may be applicable. C.O., c. 21, r. 95. 96. In case no appearance shall be entered in an action for the recovery of land within the time limited for appearance or if an appearance be entered but the defence be limited to part only the plaintiff 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 with or without costs as the judge may order. C.O., c. 21, r. 96. Claim, mesne or damages 97. When the plaintiff's statement of claim is for mesne pro- profits, rent fits, arrears of rent or damages for breach of contract and also and recovery for the recovery of land he may enter judgment as in the of land last preceding rule mentioned for the land and may proceed as in the other preceding rules mentioned as to such other claim. C.O., c. 21, r. 97. Claim: fore administration 98. Where the action is in respect of a mortgage, lien or closure, sale. charge and the plaintiff claims foreclosure or sale or redemp- redemption or tion or where the action is for the administration of an estate or partition the plaintiff if the defendant does not appear shall be entitled to such a judgment upon such evidence as the judge may order. C.O., c. 21, r. 98. other actions 99. In any other action upon default of appearance by one Judgment in or more defendants the plaintiff may apply ex parte to a judge for an order for judgment and the judge shall order such judgment to be entered as the plaintiff appears entitled to with or without evidence of the truth of the statement of claim (which may be given viva voce or by affidavit) in the discretion of the judge: [Provided that no final judgment of nullity of marriage shall be entered (whether or not there is default of appearance or defence) until the Court or judge is satisfied by evidence of the truth and sufficiency of the facts on which the claim for such judgment is founded.] C.O., c. 21, r. 99: 1901, c. 10, s. 3. judgment by 100. Any judgment entered upon default of appearance or Setting aside in delivering any pleading or in compliance with any order default may be set aside or varied by the Court or judge upon such terms as may be just. C.O., c. 21, r. 100. defendants served 101. Where in an action there are several defendants of Where several whom one or more have been served and another or others of some not them have not the Court or judge may order the striking out of the defendant or defendants not served and allow the plaintiff to proceed with his action against the defendant or defendants served on payment of costs or otherwise as may be considered just. C.O., c. 21, r. 101. or varying judgments 102. Any order made by the judge under any of the rules of Setting aside this order and any judgment entered pursuant to such order orders or may be set aside or varied by the judge or the Court upon such terms as may be just. C.O., c. 21, r. 102. ORDER X. Application by plaintiff to strike out appearance where claim liquidated Judgment unless defence shown Unliquidated demand included Summons Affidavits Defendant may show cause Cross examination Defendant admitting or STRIKING OUT APPEARANCE 103. Where the action is brought to recover a debt or a liquidated demand and the defendant or one of more of the defendants if there are several defendants has or have appeared the plaintiff or one of the plaintiffs if more than one may on affidavit of himself or of any other person who can swear positively to the facts verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the action apply to the judge for leave to enter final judgment for the amount of the claim or the amount so verified as due the plaintiff together with interest (if any) and costs; and the judge may thereupon unless the defendant by affidavit or otherwise shall satisfy him that he has a good defence to the action on the merits or disclose such facts as may be deemed sufficient to entitle him to defend make an order empowering the plaintiff to enter judgment accordingly. (2) If on the hearing of the application under this rule it shall appear that a cause or causes of action other than for a debt or a liquidated demand have been joined therewith the judge may if he shall think fit forthwith amend the statement of claim by striking out such other cause or causes of action or may deal with such claims for debts or liquidated demands as if no other claim had been joined in the action and allow the action to proceed as respects the cause or causes of action other than for such debt or liquidated demand. C.O., c. 21, r. 103. 104. The application by the plaintiff under the last preceding rule shall be by summons. A copy of the summons and copies of affidavits and exhibits referred to therein (unless service of copies of such exhibits be dispensed with by the judge) shall be served at least four clear days before the summons is returnable. C.O., c. 21, r. 104. 105. The defendant may show cause against such application by affidavit of himself or some one who can swear positively to the facts or by offering to bring into Court the amount claimed in the action. If by affidavit such affidavit shall state whether the defence alleged goes to the whole or to part only and if so what part of the plaintiff's claim; and the judge may if he thinks fit order the defendant or whoever makes the affidavit on his behalf or in the case of a corporation any officer thereof to attend and be examined on oath and to produce any letters, books or documents or copies of or extracts therefrom. C.O., c. 21, r. 105. 106. If it appears that the defence set up by the defendant failing to meet applies only to a part of the plaintiff's claim or that any part to part of the claim is admitted the plaintiff may have judgment forth- application as with for such part of his claim as the defence does not apply to or is admitted subject to such terms (if any) as to suspending execution or otherwise as the judge may order and the defendant may be allowed to defend as to the residue of the plaintiff's claim. C.O., c. 21, r. 106. One defendant may be permit ted to defend and judgment 107. If it appears to the judge that any defendant has a gou defence or ought to be permitted to defend the action and that any other defendant has not such defence and ought not to be against other permitted to defend the former may be permitted to defend and the plaintiff shall be entitled to have final judgment against the latter and have execution thereon without prejudice to his right to proceed with his action against the former. C.O., c. 21, r. 107. Conditional 108. Leave to defend may be given unconditionally or sub- leave to defend ject to such terms as to giving security or time and mode of trial or otherwise as the judge may think fit. C.O., c. 21, r. 108. ORDER XI. PLEADING GENERALLY. state facts only, 109. Every pleading shall contain and contain only a state- Pleading to ment in a summary form of the material facts on which the not evidence party relies for his claim or defence as the case may be but not the evidence by which they are to be proved and shall when necessary be divided into paragraphs numbered con- Paragraphing secutively. Dates, sums, and numbers shall be expressed in Figures to figures and not in words. C.O., c. 21, r. 109. be used Set-off and counterclaim 110. A defendant in an action may set off or set up by way of counterclaim against the claims of the plaintiff any right or claim whether such set-off or counterclaim sound in damages or not and such set-off or counterclaim shall have the same effect as a cross action so as to enable the judge to pronounce a final judgment in the same action both on the original and cross claim; but the judge may on application of the Striking out plaintiff before trial if in his opinion such set-off or counterclaim cannot be conveniently disposed of in the pending action or ought not to be allowed refuse permission to the defendant. with after claim to avail himself thereof; and if in any case in which the defend- Proceeding ant sets up a counterclaim the action of the plaintiff is stayed, disposed of discontinued or dismissed the counterclaim may nevertheless be proceeded with. C.O., c. 21, r. 110. Reply to counterclaim Further particulars Not guilty by statute Allegations not denied admitted Conditions precedent All grounds Departure Denials must be specific 111. Where a counterclaim is pleaded a reply thereto shall be subject to the rules applicable to statements of defence. C.O., c. 21, r. 111. 112. A further and better statement of the nature of the claim or defence (or written proceeding requiring particulars) may in all cases be ordered upon such terms as may be just; but the order therefor shall not per se operate as a stay of proceedings or give any extension of time. C.O., c. 21, r. 112. 113. Nothing in this Ordinance shall affect the right of any defendant to plead not guilty by statute; but if the defendant so plead he shall not plead any other defence to the same cause of action without the leave of the judge and every plea of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had. C.O., c. 21, r. 113. 114. Every allegation of fact in any pleading not being a petition or summons if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the opposing party shall be taken to be admitted except as against an infant, lunatic or person of unsound mind not so found judicially. C.O., c. 21, r. 114. 115. Any condition precedent the performance or occurrence of which is intended to be contested shall be distinctly specified in his pleading by the plaintiff or defendant as the case may be; and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleadings. C.O., c. 21, r. 115. 116. The defendant or plaintiff as the case may be must raise by his pleadings all matters which show the action or counterclaim not to be maintainable or that the transaction is either void or voidable in point of law and all such grounds of defence or reply as the case may be as if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the preceding pleadings. C.O., c. 21, r. 116. 117. No pleading not being a petition or summons shall except by way of amendment raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same. C.O., c. 21, r. 117. 118. It shall not be sufficient for a defendant in his statement of defence to deny generally the grounds alleged by the plaintiff's statement of claim or for the plaintiff in his reply to deny generally the grounds alleged in a defence by way of |