O. XXVII, rr. 4-7. 230 Judgment by default on claim for damages or detention of goods. may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants. O. 27, r. 3, (E). 4. If the plaintiff's claim be for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and the defendant or all the defendants, if more [Cf. R. 589, (O)). than one, make default, as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant or defendants, 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. 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. O. 27, r. 4, (E). 231 Default of one or more 232 Debt or damages and detention of goods or damages. 233 Default in action for land. 5. When in any such action, as in Rule 4 mentioned, there are several defendants, if one or more of them make default, as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant or defendants so making default, and proceed with his action against the others. And in such case the value and amount of damages against the defendant making default shall be assessed at the same time with the trial of the action or issues therein against the other defendants, unless the Court or a Judge shall otherwise direct. O. 27, r. 5, (E). 6. If the plaintiff's claim be for a debt or liquidated demand, and also for pecuniary damages only, or for detention of goods with or without a claim for pecuniary damages, and any defendant make default, as mentioned in Rule 2, the plaintiff may enter final judgment for the debt or liquidated demand, and also enter 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 Rules 4 and 5. O. 27, r. 6, (E). 7. In an action for the recovery of land, if the defendant [Cf. R. 590, (0)). makes default as mentioned in Rule 2, the plaintiff may enter a judgment that the person whose title is asserted in the writ of summons shall recover possession of the land, with his costs. O. 27. r. 7 (E). O. XXVII, rr. 8-11. 234 Claim for etc. 8. Where the plaintiff has indorsed a claim for mesne profits, arrears of rent, or double value in respect of the premises claimed, or any part of them, or damages for breach of mesne profits, contract or wrong or injury to the premises claimed upon a [Cf. R. 591, (O)]. writ for the recovery of land, if the defendant makes default as mentioned in Rule 2, or, if there be more than one defendant some or one of the defendants make such default, the plaintiff may enter judgment against the defaulting defendant or defendants and proceed as mentioned in Rules 4 and 5. O. 27, r. 8, (E). 235 part of claim 9. If the plaintiff's claim be for a debt or liquidated de- Defence to mand or for pecuniary damages only, or for detention of goods only. with or without a claim for pecuniary damages, or for any of such matters, or for the recovery of land, and the defendant delivers a defence, which purports to offer an answer to part only of the plaintiff's alleged cause of action, the plaintiff may by leave of the Court or a Judge enter judgment, final or interlocutory, as the case may be, for the part unanswered; provided that the unanswered part consists of a separate cause of action, or is severable from the rest, as in the case of part of a debt or liquidated demand; provided also that, where there is a counterclaim, execution on any such judgment as above mentioned in respect of the plaintiff's claim shall not issue without leave of the Court or a Judge. O. 27, r. 9, (E). 236 [Cf. R. 593 (1), 10. In all other actions than those in the preceding rules Other actions. or in Rule 15, of this Order mentioned, if the defendant makes (O). default in delivering a defence, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court or a Judge shall consider the plaintiff to be entitled to. O. 27, r. 11, (E), um. 237 of several 11. Where in any such action as mentioned in the last Default by one preceding rule, there are several defendants, then, if one of defendants. such defendants make such default as aforesaid, the plaintiff may either (if the cause of action is severable) set down the action at once on motion for judgment against the defendant so making default, or may set it down against him at the time when it is entered for trial or set down on motion for judgment against the other defendants. O. 27, r. 12, (E). O. XXVII, rr. 12-15. 238 Close of plead- 12. If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading, within the period allowed for that purpose, the pleadings shall be deemed to be [Cf. R. 262, (O)]. closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue. O. 27, r. 13, (E). 239 Default of third party. 13. In any case in which issues arise in an action other (Cf. R. 263, (O)]. than between plaintiff and defendant, if any party to any such issue makes default in delivering any pleading, the opposite party may apply to the Court or a Judge for such judgment, if any, as upon the pleadings he may appear to be entitled to. And the Court or Judge may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties. O. 27, r. 14, (E). 240 Setting aside judgment by default. 14. Any judgment by default, whether under this Order (Cf. R. 639, (0)]. Or under any other of these Rules, may be set aside by the Court or a Judge, upon such terms as to costs or otherwise as such Court or Judge may think fit, and where an action has been set down on motion for judgment under Rule 10 of this Order, such setting down may be dealt with by a Court or a Judge in the same way as if a judgment by default had been signed when the case was set down. O. 27, r. 15, (E.) 241 Foreclosure actions. 15. In an action for the foreclosure of a mortgage, or for the foreclosure and sale of mortgaged premises, or for redemption, where no statement of defence is delivered, the plaintiff may, after the time for delivering a statement of defence has expired, give notice of motion for a day therein named for judgment to be made upon affidavit, which notice shall be served ten days before the day so named. The Court or a Judge, upon motion made pursuant to such notice on proof thereof, and on proof by affidavit of the allegations in the statement of claim, or in the indorsement on the writ where the defendant has stated in his appearance that he does not require the delivery of a statement of claim, and on such documentary and other evidence as may be deemed requisite by the Court or Judge, may make such judgment as might have been made had the cause been at issue and duly established in evidence, unless upon special circumstances disclosed by affidavit it should be thought fit to allow the defendant further time for defence. ORDER XXVIII. CONFESSION OF JUDGMENT. O. XXVII, rr. 1-4 242 judgment on necessary to be 1. Leave to enter judgment upon any cognovit actionem Leave to enter or warrant of attorney, more than one and less than ten years cognovit, when old, shall be obtained by order of a Judge, made ex parte, and obtained. if ten years old or more, by motion upon notice. See R. 599, (O.); R. 2, S. C., E. T. 1848. 243 and cognovits with Registrar 2. No confession of judgment, or cognovit actionem, shall Confession be valid or effectual to support any judgment or writ of to be filed execution, unless within thirty days after the same has been of Deeds. given, a sworn copy thereof is filed of record in the office of the Registrar of Deeds in the county in which the person giving such confession of judgment or cognovit actionem resides; and a book shall be kept in every such office, to be called the Cognovit Book, in which shall be entered the names of the plaintiff and defendant in every such confession or cognovit, the amount of the true debt or arrangement secured thereby, the time when judgment may be entered and execution issued thereon, and the day when such copy is filed in the said office; and such book shall be open to inspection by any person during office hours, on the payment of a fee of 20 cents. R. 600, (O), am., 244 executed in solicitor. 3. No warrant of attorney to confess judgment in any cognovit to be action, or cognovit actionem, given by any person, shall be presence of of any force, unless there is present some solicitor on behalf of such person expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant or cognovit, before the same is executed, which solicitor shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be solicitor for the person executing the same, and state that he subscribes as such solicitor, and in the affidavit of execution, the attendance of such solicitor, and the fact of his being a subscribing witness, shall be plainly stated, which affidavit and the warrant of attorney, or cognovit, shall be filed at the time of entering judgment thereon. R. 601, (O). See R. 6, S. C., H. T. 1837. 245 with cognovit 4. The person who prepares any cognovit or warrant of Defeasance attorney to confess judgment, which is to be subject to any to be on same defeasance, shall cause such defeasance to be written on the paper. O. XXVIII, rr. 5-8. 246 Warrant of attorney to be filled on judgment same paper or parchment on which the cognovit or warrant is written, or cause a memorandum in writing to be made on such cognovit or warrant containing the substance or effect of such defeasance. R. 5, S. C., H. T. 1837; R. 602; (O). 5. No judgment shall be signed upon any warrant authorizing any attorney to confess judgment without such warrant being signed. being delivered to and filed with the proper officer. R. 4, S. C., E. T. 1837. 247 Confession where warrant of attorney executed by agent. 248 Warrant of attorney, etc., to be dated. 249 Duty of solicitor signing confession to annex to 6. In no case where the warrant of attorney to confess judgment appears to have been executed, not personally, but by a solicitor or agent in the name of the principal, shall any confession be signed thereon by a solicitor, unless the deed or other power conveying the authority to execute the warrant, together with an affidavit of the due execution thereof by the principal, be produced to, and read and examined by, the solicitor who is applied to sign the confession, before signing the same; nor shall judgment be entered upon any such confession, unless such deed or other power, and affidavit of execution, be produced to the proper officer and filed with the warrant of attorney and confession. R. 2, S. C., T. T. 1857. ช. Every warrant of attorney to confess judgment, and every deed or other power by which authority is granted to execute the warrant, shall bear date of the day upon which the same are respectively executed, and, if it should happen that such warrant of attorney, deed, or other power, is to be given by two or more persons who cannot conveniently execute the same on the same day, then the warrant, deed, or power shall bear date of the day on which it shall be first executed; and the day on which any subsequent execution shall take place shall be specified in the attestation of the subscribing witness or witnesses to such execution. R. 4, S. C., T. T. 1857. 8. Every solicitor signing a confession of judgment upon a warrant of attorney, shall annex to his signature the date signature date of signing, etc. of signing, and mark the warrant with his name, or initial letters of his name, and also any deed or power under which the warrant is executed, where the execution is not personal. R. 5, S. C., T. T. 1857. |