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which costs are alleged to have been duly taxed in said court and to have been found and adjudged by that court to amount to $24.05.

Among the common counts is the usual one for interest upon money due from defendant to plaintiff and forborne at interest by the plaintiff to the defendant at his request.

The writ of summons was specially endorsed with claims for the moneys claimed by the first two counts and also with claims for $101.20 interest to date of this writ," and "interest on $167.92 at 6 per cent until judgment.

The judgment sought to be set aside was a final judgment for the sum of $449.88 for debt, signed by plaintiff for default of plea without a reference to the master or assessment of damages in any way.

It is objected that the judgment should have been interlocutory only and that damages should have been assessed by the master or otherwise.

Under section 63 of the Common Law Procedure Act, 1852, "in actions where the plaintiff seeks to recover a debt or liquidated demand in money, judgment by default shall be final.”

A foreign judgment for a certain sum of money constitutes a simple contract debt for that amount from the judgment debtor to the judgment creditor, upon which an action of debt lies.

Walker v. Witter, 1 Dougl 1; Henley v. Soper, 8 B. & C. 16 ; Doran v. O'Reilly, 3 Price 250; Atkinson v. Lord Braybrooke, 4 Camp. 380. This is the case although the judgment is for costs to be taxed provided they are afterwards taxed and ascertained. Henley v. Soper, supra; Sadler v. Robins, 1 Camp. 253; Hall v. Armour, 5 U. C. Q. B. O. S. 3. Here the costs claimed under the second count are stated to have been taxed and adjudged by the Quebec court at $24.05

It is clear that the causes of action referred to in the first and second counts come within section 93 above cited.

Under the old practice, before the Common Law Procedure Acts, it was held in some cases that a reference to the master would not be ordered to ascertain the amount for which final judgment should be signed upon default of plea (Messin v. Lord Massarene, 4 T. R. 493,) but that a writ of inquiry should issue.

That was, however, an action upon a French judgment for a sum payable in foreign currency.

In Day's C. L. P. Acts, p. 122, it is stated that "in an action on a foreign judgment, or on a foreign bill of exchange, the damages are now held to be substantially a matter of calculation.'" This statement has reference to section 94 of the C. L. P. Act, 1852, which provides for having the damages ascertained by the master where the amount is "substantially a matter of calculation."

Even under the old practice it was held by the House of Lords in Doran v. O'Reilly, 5 Dow, 133, where the amount of a judgment, recovered in the Island of Jamaica and decl.

1 upon, was

stated in the declaration to be equal to a certain sɩ.. of sterling money of Great Britain, that by allowing judgment to go by default, the defendant himself admitted the allegation of the value of the colonial currency in the currency of Great Britain and practically assessed the damages as claimed, and that a writ of inquiry was not needed. By the Statute of Canada, 34 Vic., c. 4, a uniform currency was established for the whole of the Dominion, and judicial notice must be taken in our court of the fact that the currency of the Province of Quebec is the same as that of Manitoba, and no evidence or calculation is necessary to fix in our currency the amounts so adjudged to the plaintiff in the Province of Quebec. To fix the amounts to be recovered under the first and second counts, apart from any claim for interest, not even a reference to the master is required. Objection was made to the special indorsements upon the writ of summons, but this is of no importance under these two counts, for the judgment is to be considered as signed upon the statement of the the causes of action contained in the declaration.

The special endorsement is of importance only as bearing upon the question of interest. I know of no authority which determines whether, upon default of plea to counts which, like the common counts, do not show within themselves what is the amount of the debt claimed under them, reference can be made to particulars of claim served to fix the amount so as to justify the signing of final judgment thereon without an assessment of damages before the master or otherwise and I cannot say that such has been a common practice; though it would be a convenient

one to the adoption of which, by rule of court, if necessary, I can see no tangible objection. The Ontario practice will assist very little as the corresponding section in the C. L. P. Act, differs from section 93 of the English Act. I think that at any rate no final judgment can be signed on such counts without particulars being furnished.

The common indebitatus count for interest in the form here used is held to be a proper one under which to claim interest upon a contract to pay it upon money forborne at interest. Nordenstrom v. Pitt, 13 M. & W. 723; Doran v. O'Reilly, 5 Dow, 133. It has been held in Rodway v. Lucas, 10 Ex. 667, that where a writ of summons is specially indorsed with a claim for interest, it is to be considered as admitted, by default of appearance, that it is payable under a contract express or implied so as to justify the signing of final judgment therefor. In the absence of other particulars of claim than those indorsed on the writ of summons, those so indorsed serve as particulars under the common money counts, and in fact no different particulars can regularly be delivered without the order of a judge. Fromant v. Ashley, E. & B. 723. Here it is not shown that any others were ordered or delivered, and this matter was argued wholly upon the basis of the particulars endorsed upon the writ. It may be taken then as admitted by the default in pleading that by agreement there was a debt due and owing to the plaintiff by the defendant at the commencement of this suit of $101.20, for forbearance by the plaintiff to the defendant at his request at interest of money owing from defendant to plaintiff. This sum together with the two sums of $319.68 and $24.05 payable under the first two counts makes the sum of $444.93, leaving yet $4.95 required to make up the amount for which judgment was signed. Either there is no count under which this is claimed, or particulars are not furnished for it, or it is included under the charge in indorsement upon writ of summons for "interest on $167.92 at 6 per cent until judgment," or it is added as damages for nonpayment of some of the moneys claimed under first two counts, or it is made up of a combination of two or more such methods of claim. If wholly or partly made up by the first two methods mentioned, it is clear that the amount or some portion of it is improperly included. Under the Common Law Procedure Act, 1852, a special indorsement on a writ of summons may include

a claim for interest from issue of writ until judgment, and final judgment may be signed therefor upon default of appearance (See sections 25 & 27). In estimating an amount for which a verdict is to be rendered in an action of debt, interest may be allowed to time of rendering the verdict, and, perhaps, even to the probable time of entering judgment. Robinson v. Bland, 2 Burr. 1077; Kidd v. Walker, 2 B. & Ad. 705. It is evident, however, that such an allowance is made on account of the damages arising from non-payment of the debt due. Any sum recovered as part of a debt sued for must have been payable at the time the suit was commenced, as every cause of action must have arisen before the action is brought ; but when a cause of action has arisen before action brought, there may be allowed upon it damages, which appear from circumstances occurring after the action is brought. Such damages cannot be said, however, to form any part of the debt or of a liquidated demand sued for and I do not think that they can be included in signing a final judgment for default of plea. In the case of a final judgment for default of appearance they can only be included as being expressly authorized by statute. This is more particularly the case in an action upon a judgment than in many other instances. In some cases it has been held that nothing can be allowed for interest upon a foreign judgment in an action of debt thereon. Atkinson v. Lord Braybrooke, 4 Camp. 380; Doran v. O'Reilly, Price 250. And, at most, it has been held a matter for a jury to decide whether any interest should be allowed and its allowance not in any sense a matter of right. Bann v. Dalzell 3 C. & P. 376; Arnott v. Redfern, 3 Bing. 353. Under any supposition, then, this $4.95 should not have been included in signing final judgment. The plaintiff cannot be allowed to have the amount of the judgment reduced, as a defence upon the merits is sworn to. There are also other technical objections to the judgment which it is unnecessary to consider.

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The impropriety of signing final judgment by default, where the claim is partly unliquidated, is shown in Westlake v. Abbott, 4 U. C. L. J. 46.

The defendant also contends that the judgment should be set aside, as it was signed contrary to an understanding which is said to exist between the firm to which the plaintiff's attorney belongs and that to which the defendant's attorney belongs, that

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no judgment is to be signed on default of any pleading without a letter being first written to the party in default stating that judgment would be signed if the pleading were not filed. Such an "understanding" is denied by plaintiff's attorney, who shows also that some letters were written to defendant's attorney demanding the pleas. The "understanding," even as stated on defendant's behalf, is too indefinite to be acted upon by the court, and all that is set up in connection with it, and with regard to conversations about the filing of the pleas, can be considered only as accounting for the default in pleading in connection with an application to set aside the judgment on the ground of there being a defence upon the merits.

The judgment will be set aside and two days further time from the making of the order allowed for pleading. The costs of the application will be costs in the cause to the defendant in any event, except that no costs can be allowed for any material filed upon the point last referred to or used to show a defence upon the merits.

MANOQUE v. MASON.

(IN CHAMBERS.)

Summons to Sign Judgment.-Set off.

Anything which could have been pleaded by a defendant under the old statutes of set-off, can now be brought forward in answer to an application for leave to sign judgment under the statute and will prevent an order being made allowing judgment to be signed.

After appear

This was an action on two promissory notes. ance entered, the plaintiff obtained a summons under the Queen's Bench Act, 1885, section 34, for liberty to sign final judgment. In answer, the defendant filed an affidavit, in which he said, "I

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