ment is to be signed must, in such other cases, be ascertained under the following section.

94. In actions in which it shall appear to the court or a judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry, but the court or a judge may direct that the amount for which final judgment is to be signed shall be ascertained by one of the masters of the said court; and the attendance of witnesses and the production of documents before such master may be compelled by subpoena, in the same manner as before a jury upon a writ of inquiry; and it shall be lawful for such master to adjourn the inquiry from time to time, as occasion may require; and the master shall endorse upon the rule or order for referring the amount of damages to him the amount found by him, and shall deliver the rule or order with such indorsement to the plaintiff; and such and the like proceedings may thereupon be had as to taxation of costs, signing judgment, and otherwise, as upon the finding of a jury upon a writ of inquiry.

It was formerly the practice to refer to the Master the computation of the amount for which final judgment was to be signed in actions en bills of exchange, promissory notes and cheques ; in actions on awards, in actions of covenant for rent, or for mortgage money, or for the arrears of an annuity. The cases are collected in Holdipp v. Otway, (2 Wms. Saund. 107, n. 2).

In these actions, and in actions of a like nature, the writ may now, when the defendant is within the jurisdiction, be specially endorsed, under s. 25 (ante, p. 31); upon which no inquiry is needed.

If the defendant resides out of the jurisdiction, there must always be an inquiry (ss. 18, 19, ante, pp. 16, 27).

Under the old practice, a reference to the Master was not ordered where the action was for an uncertain sum, and not a mere matter of figures; as on a foreign judgment (Messin v. Lord Mussareene, 4 T. R. 493); on a bill of exchange for foreign money (Maunsell v. Massareene 4 T. R. 87); or on a bottomrybond (Palin v. Nicholson, Tidd, 589); on a covenant to indemnify, where it was open to the jury to inquire into questions of collateral satisfaction of the plaintiff's claims (Denison v. Mair, 14 East, 622); in an action on a judgment, interest being claimed as damages, when the jury (before the 1 & 2 Vict. c. 110, s. 17) were left to consider whether any and what damages should be given (Nelson v. Sheridan, 8 T. R. 395); and in an action for railway calls, where the reference to the Master was refused, and the case left to the jury by Williams, J., on the ground that the matter was too involved and intricate (Cheltenham Railway Company v. Fry, 7 Dowl. 616).

In an action on a foreign judgment, or on a foreign bill of

may be di

Inquiry of damages rected to take the master.

place before

In what cases a reference will be made.

Judgment for money

demands

exchange, the damages are now held to be "substantially a matter of calculation." And if the defendant is within the jurisdiction, the writ may in such cases be specially endorsed under s. 25 (ante, p. 31). In an action on a covenant, the propriety of an inquiry may depend on the nature of the covenant. The damages in an action for railway calls would seem to be substantially a matter of calculation; and the reason assigned in the report of the case above referred to, for leaving the inquiry to a jury instead of to the Master, is not very satisfactory.

The court or a judge may direct that the amount for which final judgment is to be signed should be ascertained by one of the Masters. This proceeding is in lieu (in the cases above referred to) of the writ of inquiry, which was issued after interlocutory judgment had been signed, to ascertain the amount of damages to be awarded to the plaintiff. This judgment must still be signed in cases not within ss. 25, 93 (ante, pp. 31, 86). A writ of inquiry was granted where the plaintiff died after interlocutory judgment (Berger v. Green, 1 M. & S. 229).

Though there are several defendants, and several interlocutory judgments, there must be but one reference (Field v. Pooley, 3 M. & G. 756). A reference to the Master may be applied for on the same day that judgment is signed (Russen v. Hayward, 5 B. & A. 752).

Though the "rule to compute" is expressly abolished by s. 92 (ante, p. 86), proceedings somewhat similar to those used in obtaining that rule are necessary to get an order under this section. The order is obtained upon summons, supported by an affidavit of the cause of action, and that interlocutory judgment has been signed.

The order, and notice of the appointment made under it by the Master, must be served and proceeded upon in the usual course. See R. G., H. T. 1853, r. 171, post.

95. In all actions where the plaintiff recovers a sum of money, the amount to which he is entitled may be without dis awarded to him by the judgment generally, without distinction being therein made as to whether such sum is recovered by way of a debt or damages.

tinction between debt

and damages.

Saving as to certain pro

visions of

c. 11.

any

96. Nothing in this act contained shall in any way affect the provisions of a certain act of parliament 8 & 9 Will. 3, passed in the session of parliament holden in the eighth and ninth years of the reign of his majesty King William the Third, intituled "An Act for the better preventing frivolous and vexatious Suits," as to the assignment or suggestion of breaches, or as to judgment for a penalty as a security for damages in respect of further breaches.

Roberts v. Mariett (2 Wms. Saund. 187, et seq).

So it was held that money could not be paid into court in an action on a bond within the 8 & 9 Will. 3, c. 11, which see ante, p. 71, n. (Bishop of London v. McNiel, 9 Exch. 490). As to common money bonds, see C. L. P. A. 1860, s. 25, post.

NOTICE OF TRIAL, INQUIRY AND COUNTERMAND. And with respect to notice of trial and inquiry, and countermand thereof, be it enacted as follows:

97. Ten days' notice of trial or inquiry shall be given, and shall be sufficient in all cases, whether at bar or nisi prius, in town or country, unless otherwise ordered by the court or a judge.

Notice of trial must be given in every case; except (1), where a cause has been made a remanet from one sitting to another, in London and Middlesex (Ham v. Greg, 6 B. & C. 125; Claudet v. Prince, L. R. 2, Q. B. 406) [it is necessary where a cause has been made a remanet at the assizes (Gains v. Bilson, 4 Bing. 414), and see Cawley v. Knowles (16 C. B., N. S. 107)]; (2), where a cause has been put off by an order of Nisi Prius (Shepherd v. Butler, 1 D. & R. 15); (3), where it has been delayed by an injunction, rule of Court or judge's order after notice of trial (Stockton and Darlington Railway Company v. Fox, 6 Exch. 127; Claudet v. Prince, ubi supra, overruling Jacks v. Meyer, 8 T. R. 245, and Ellis v. Trusler, 2 W. Black. 798, and distinguishing Cawley v. Knowles, ubi supra).

Notice of trial or inquiry, and of continuance of trial or inquiry, shall be given in town (R. G., H. T. 1853, r. 34, post).

See as to notice to produce record upon issue nul tiel record, R. G., H. T. 1853, r. 38, post.

See as to delivering notice of executing a writ of inquiry with a demurrer or joinder in demurrer, R. G., H. T. 1853, r. 40 (post). Such proceeding would seem to be applicable also in cases where notice of trial of issues in fact is given as well; but, although a defendant is under terms to take short notice of trial, he is still entitled to full notice of inquiry.

Where no notice of trial has been given, a defendant is not entitled to his costs of preparing for trial (Cooper v. Boles, 5 H. & N. 188; L. J. 29, Ex. 141; Curtis v. Platt, L. J. 33, C. P. 255); nor in such a case is a plaintiff so entitled (Freeman v. Springham, 14 C. B., N. S. 197; L. J. 32, C. P. 249).

The notice is now to be in all cases a ten days' notice, but taking "short notice of trial" may be made a condition of obtaining time to plead or leave to amend. Sometimes the words "if necessary" are introduced into the order; as to their application, see Flowers v. Welch (9 Ex. 272; L. J. 23, Ex. 7). Short notice, in all cases, and whether of trial or of inquiry, is four days (R. G., H. T. 1853, r. 35, post).

Time for and inquiry.

notice of trial

The notice must be in writing (R. G., H. T. 1853, r. 161, post). Form of No particular form of words is necessary to constitute a good notice. notice, provided it clearly informs the party in sufficient time when and where the cause is to be tried (Cory v. Hotson, 1 L., M. & P. 23). The notice is usually given on the back of the issue; and, if so, need not be entitled in the court or cause; but if on separate paper, it must be so entitled. A notice of trial originally dated the 2nd of April, 1856, was given for the first sittings "in next Easter Term." It was afterwards altered by dating it as of the 18th of April, and making it a notice for the second sittings "in next Easter Term." This was held a good notice for Easter

To whom to be given.

Notice of continuance in town causes.

Irregular notice.

Notice of countermand.

Term, 1856 (Fenn v. Green, 6 E. & B. 656; L. J. 25, Q. B. 353; overruling Benthall v. West, 1 D. & L. 599).

If the notice is endorsed on the issue, and a separate notice given for a different day, the notice will be irregular (Kerry v. Reynolds, 4 Dowl. 234). The notice should be withdrawn, and fresh notice given (Fell v. Tyne, 5 Dowl. 246).

A notice of continuance, bad as such, may be a good notice of trial, if given in sufficient time (Cory v. Hotson, ubi supra).

It must be served on the attorney in the cause, or on the defendant, if he has appeared in person; in which latter case, it must, formerly, have been served personally upon him, or appear to have come to his knowledge (Fry v. Mann, 1 Dowl. 419; but see R. G., H. T. 1853, r. 166, post). It would appear that the notice may not be left at the address given in the appearance, for pleadings and other proceedings requiring personal service are excepted from those which may be so left (see s. 30, ante, p. 35, and R. G., H. T. 165-167, post).

A trial will not be irregular if the attorney who has received notice dies after such notice, provided the plaintiff does not know the fact (Ashley v. Brown, 1 L., M. & P. 451).

If the plaintiff is not ready to proceed, he may, in town causes, instead of countermanding, continue his notice of trial (see R. G., H. T. 1853, r. 36, post). Notice of continuance must be given four days, or, after short notice, two days before the day of trial or inquiry, the same notice as in the case of a countermand (Forbes v. Crow, 1 M. & W. 465). A notice of continuance may be given on a writ of inquiry (Wilson v. Nesbitt, 1 Dowl. N. S. 675), and possibly also on a reference to the Master, under s. 94 (ante, p. 87). It cannot be given after a countermand ( Smith v. Hoff, Barnes, 301). As to the defendant's proceedings, if plaintiff fails to try, see s. 101 (post, p. 92).

If the notice of trial is irregular or insufficient, the verdict, if the plaintiff goes to trial, and the defendant does not appear, may be set aside by the defendant (Williams v. Williams, 2 Dowl. 350; Benthall v. West, ubi supra). But an irregularity in, or want of notice, may be waived; as by appearing at the trial (Doe d. Antrobus v. Jepson, 3 B. & Ad. 402); or by the defendant taking proceedings to get the cause struck out of the list (Young v. Fisher, 2 Dowl. N. S. 637); or by the defendant obtaining a rule for a special jury (Berresford v. Geddes, L. R., 2 C. P. 285). Where no proceedings have been taken for one year, a month's notice is necessary (see R. G., H. T. 1853, r. 176, post, and s. 58, ante, p. 59).

See R. G., H. T. 1853, rr. 34-41, 174, 175, post.

98. A countermand of notice of trial shall be given four days before the time mentioned in the notice of trial, unless short notice of trial has been given, and then two days before the time mentioned in the notice of trial, unless otherwise ordered by the court or a judge, or by consent.

The notice of countermand must be in writing.

"Countermand of notice of trial or inquiry may be given either in town or country, unless otherwise ordered by the court or a judge" (R. G., H. T. 1853, r. 34, post); i. e. it may be given either to the attorney in town, or agent in the country (although the agent's name appears on the record), and by either (Chestyn v. Pearce, 4 Dowl. 693). But a notice to a defendant in the country, who appears by attorney in town, is insufficient (Margetson v. Rush, 8 Dowl 388).

A remanet cannot in general be the subject of a countermand (Tempany v. Rigby, 10 Exch. 476); but where a town cause was made a remanet from the first to the third sittings on the application of the defendant, it was held that the plaintiff was in the same position as if the notice of trial had been for the third sittings, and, consequently, a notice of countermand given more than four days before the third sittings was good (Sully v. Noble, 1 H. & C. 809; L. J. 32, Ex. 145).

As to the defendant's proceedings if the plaintiff fails to try the cause, see s. 101 (post. p. 92).

Although it may be too late to give a proper notice of countermand, a notice may usefully be given with a view of preventing the defendant from incurring thereafter unnecessary costs.

See s. 97 and note (ante, p. 89); and R. G., H. T. 1853, rr. 34-41, post.

99. A rule for costs of the day for not proceeding Costs of the to trial pursuant to notice, or not countermanding in day. sufficient time, may be drawn up on affidavit, without motion.

It is a side bar rule, R. G., H. T. 1853, r. 39, post. As to affidavit, see Powell v. James (12 M. & W. 100).

"Costs of the day" are the same as those which are paid on a withdrawal of the record (Walker v. Lane, 3 Dowl. 504); and if the cause has been made a remanet from one sittings to another, the "costs" are the "costs of the day" of the second sittings when the default took place (Brett v. Stone, 1 D. & L. 140). Payment of the costs may be enforced by execution upon the Master's allocatur, under 1 & 2 Vict. c. 110, s. 18 (Hodgson v. Paterson, 2 Dowl. N. S. 129).

The rule is, of course; so that if the plaintiff had any good excuse for not having gone to trial, he must move the court to discharge the rule. A proposal to refer, made after the commission day, will be no excuse (Eaton v. Shuckburgh, 2 Dowl. 624). In one case (Mullins v. 5 Taunt. 88), he was considered justified in withdrawing the record, on the ground that the jury was prejudiced. In another case, an accident to a material witness was held a sufficient excuse for not trying (Ogle v Moffatt, Barnes, 133); and the necessary absence of a material witness has been held a good excuse for not going to trial (Eastern Union Railway Company v. Symonds, 4 Exch. 502). In another case, the plaintiff withdrew the record on account of the absence of a witness, on being told that the cause might be re-entered for trial before twelve o'clock. The defendant then entered a ne recipiatur, and on the witness appearing, the plaintiff offered to try, but the defendant refused to consent. The court refused the defendant the costs of the day (Pope v. Fleming, 5 Exch, 249); sed quare whether a rule under this section will be discharged; and quare whether the bankruptcy or insolvency of the plaintiff

Payment of the costs.

Excuse for

not going to trial.