73. Applications under rules 70 and 72 may be made ex Applications parte. No. 6 of 1897, s. 1 (19).

ex parte

order

74. An order so obtained shall unless the Court or judge Service of shall otherwise direct be served upon the continuing party or parties or their advocates and also upon each such new party unless the person making the application be himself the only new party and the order shall from the time of such service subject nevertheless to the next two rules be binding on the person served therewith and every person served therewith who is not already a party to the cause or matter shall be bound to enter an appearance thereto within the same time. and in the same manner as if he had been served with a writ of summons. [E. 182.] No. 6 of 1897, s. 1 (19); No. 12 of 1898, s. 32.

75. Where any person who is under no disability or under Application no disability other than coverture or being under any disability order to discharge other than coverture but having a guardian ad litem in the cause or matter shall be served with such order such person may apply to the Court or judge to discharge or vary such order at any time within twelve days from the service thereof. [E. 183.] No. 6 of 1897, s. 1 (19); No. 12 of 1898, s. 33.

to discharge

76. Where any person being under any disability other than Application coverture and not having a guardian ad litem in the cause or order matter is served with any such order such person may apply to the Court or a judge to discharge or vary such order at any time within twelve days from the appointment of a guardian ad litem for such party and until such period of twelve days shall have expired such order shall have no force or effect as against such last mentioned person. [E. 184.] No. 6 of 1897, s. 1 (19).

plaintiff or

77. When the plaintiff or defendant in a cause or matter dies Death of sole and the cause of action survives but the person entitled to pro- defendant ceed fails to proceed on application of the defendant (or the person against whom the cause or matter may be continued) the judge may order the plaintiff (or the person entitled to proceed) Omission to proceed within a given period and in default of such proceed- with cause ing judgment may be entered for the defendant or as the case may be for the person against whom the cause or matter might have been continued. [E. 185.] No. 6 of 1893, s. 69.

to proceed

etc.

78. Where any cause or matter becomes abated or in the case Advocate for of any such change of interest as is by this order provided for plaintiff to the advocate for the plaintiff or person having the conduct of abatement, the cause or matter as the case may be shall certify the fact to the proper officer who shall cause an entry thereof to be made in the procedure book opposite to the name of such cause or matter. [E. 186.] No. 6 of 1897, s. 1 (20); No. 12 of 1898, ss. 30, 34.

Uniting causes of action

Disposal separately

ORDER VII.

JOINDER OF CAUSES OF ACTION.

79. A plaintiff may unite in the same action several causes of action; but if it appears to the judge that any such causes of action cannot be conveniently tried or disposed of together he may order separate trials of any such causes of action to be had or may make such other order as may be necessary or expedient for the separate disposal thereof or may order any such causes of action to be excluded and consequential amendments to be made. [E. 188 and 196] No. 6 of 1893, s. 70.

ORDER VIII.

Entry of appearance

by defendant

Filing and service of defence

Indorsement

APPEARANCE.

80. Within the time limited for appearance by the writ of summons or afterwards before the plaintiff has taken any further step in the cause if the defendant or if there be more than one defendant in the action a defendant desires to contest the plaintiff's claim and defend the action he shall by himself or his advocate enter an appearance in the office of the clerk whence the writ of summons issued and within six days thereafter or such further time as may by order of the judge be allowed for the purpose file in the clerk's office a statement of defence and serve a copy thereof on the plaintiff or his advoNo. 6 of 1893, s. 71; No. 5 of 1894, s. 2.

cate.

81. Upon or with every appearance when entered a memoon appearance randlum in writing shall be indorsed or attached giving the defendant's address. or the address of his advocate if he defends by advocate and if the defendant or his advocate resides over three miles from the clerk's office naming an address within three miles of the clerk's office where documents in the suit re

Address for service

Service where

no appearance

for service or

quiring service upon him may be left such place to be known and designated as his "address for service." [E. 80.] No. 6 of 1893, s. 72.

82. Where no appearance has been entered for a party or no address all orders, notices, papers, documents in or relating to the action false address may unless otherwise ordered by a judge be served by posting up the same or a copy thereof in the clerk's office; and where the address mentioned in the next preceding rule be not given all such orders, notices, papers and documents may be served in like manner; but if an address is supplied and such address be illusory or fictitious the judge may on application of the plaintiff direct the manner in which such orders, notices, papers and documents may be served. No. 5 of 1894, s. 3.

Recovery

of land

83. Any person not named as a defendant in a writ of summons in an action for the recovery of the possession of land,

may by leave of the judge appear and defend on filing an Appearance affidavit showing that he is in possession of the land either by defendant" himself or by his tenant. [E. 95.] No. 6 of 1893, s. 75.

by person not

to appear

as such

84 Any person appearing to defend an action for the recov- Landlord ery of the possession of land as landlord in respect of property whereof he is in possession only by his tenant shall state in his appearance that he appears as landlord. [E. 96.] No. 6 of 1893, s. 76.

85. Where a person not named as defendant in any writ of Party obtaining summons for the recovery of the possession of land has obtain- leave to ed leave of the judge to appear and defend he shall comply defend with the provisions of this order in respect of defendants ap- subsequent pearing and defending and in all subsequent proceedings be proceedings named as a party defendant. [E. 97.] No. 6 of 1893, s. 77.

86. Any person appearing to a writ of summons for the reco- Defence may very of the possession of land shall be at liberty to limit his be limited defence to a part only of the property mentioned in the writ property describing that part with reasonable certainty in his appearance and an appearance where the defence is not limited as above mentioned shall be deemed an appearance to defend for the whole. [E. 98.] No 6 of 1893, s. 78.

writ or

87. A defendant before appearing shall be at liberty to Application apply to a judge to set aside the service of the writ upon him, to set aside to discharge or set aside the order authorising such service or service to set aside the writ on the ground of irregularity or otherwise. No. 6 of 1897, s. 1 (21).

ORDER IX.

DEFAULT OF APPEARANCE.

or

unsound mind

88. Where no appearance has been entered to a writ of Default of summons for a defendant who is an infant or a person of appearance by uns und mind not so found by inquisition the plaintiff shall person of before further proceeding with the action against the defendant apply to the Court or a juge for an order that some proper person be assigned guardian of such defendant by whom he may appear and defend the action; but no such order shall be made unless it appears on the hearing of such application that the writ of summons was duly served and that notice of such application was after the expiration of the time allowed for appearance and at least six clear days before the day in such notice named for hearing the application served upon or left at the dwelling house of the person with whom or under whose care such defendant was at the time of serving such writ of summons and also (in the case of such defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwelling

Writ and affidavit of service to

be filed

Claim liquidated

Liquidated demand

Several

defendants

Claim,

detinue and damages

Nonappear

ance

Striking out appearing defendants

Interlocutory judgment against defendants

house of the father or guardian if any of such infant unless the Court or judge at the time of hearing such application shall dispense with such last mentioned service. [E. 101.] No. 12 of 1898, s. 6.

89. When any defendant fails to appear to a writ of summons and the plaintiff is desirous of proceeding upon default of appearance he shall before taking such proceeding upon default file the writ (or an order dispensing with such filing) with an affidavit of service or of compliance with any order for substitutional service as the case may be. [E. 102.] No. 6 of 1893, s. 80; No. 5 of 1894, s. 4.

90. Where the plaintiff's claim is for a debt or liquidated demand only and the defendant fails or all the defendants if more than one fail to appear thereto the plaintiff may after the time limited for appearance has elapsed enter final judgment for any sum not exceeding the sum claimed in the action together with legal interest and costs of suit. [E. 103.] No. 6 of 1893, s. 81.

91. Where the plaintiff's claim is for a liquidated demand and there are several defendants of whom one or more appear and another or others of them fails to appear the plaintiff may 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. [E. 104.] No. 12 of 1898, s. 7.

92. Where the plaintiff's claim is for detention of goods and pecuniary damages or either of them and the defendant fails 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. [E. 105.] No. 6 of 1893, s. 82.

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. No. 12 of 1898, s. 5.

94. Where the plaintiff's claim is for detention of goods and pecuniary damages or either of them and there are several nonappearing 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 goods and the damages or either of them as the case may be shall be assessed as against the defendant or defendant 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. [E. 106] No. 12 of 1898, s. 8.

detinue and

95. When the plaintiff's claim is for detention of goods and Claim, pecuniary damages or either of them and also for a liquidated liquidated demand and any defendant fails to appear to the writ the demand 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. [E. 107.] No. 6 of 1893, s. 90.

Recovery

96. In case no appearance shall be entered in an action for Claim the recovery of land within the time limited for appearance or of land 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. [E. 108.] No. 6 of 1895, s. 91.

or damages

97. When the plaintiff's st tement of claim is for mesne pro- Claim, mesne fits, arrears of rent or damages for breach of contract and also profits, rent for the recovery of land he may enter judgment as in the and recovery last preceding rule mentioned for the land and may proceed as in the other preceding rules mentioned as to such other claim. [E. 109.] No. 6 of 1893, s. 92.

of land

foreclosure,

98. Where the action is in respect of a mortgage, lien or Claim: charge and the plaintiff clains foreclosure or sale or redemp- sale. tion or where the action is for the administration of an estate redemption or administration 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. No. 6 of 1893, s. 94.

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. No. 6 of 1897, s. 1 (22).

judgment

100. Any judgment entered upon default of appearance or in Setting aside delivering any pleading or in compliance with any order may by default be set aside or varied by the Court or judge upon such ternis as may be just. No. 6 of 1893, s. 95.

101. Where in an action there are several defendants of Where several defendants, whom one or more have been served and another or others of