The plaintiff confesses the defence stated in the paragraph of the defendant's defence [or of the defendant's further defence]. Delivered the day of 19-, by X. Y., of Plaintiff's solicitor. 8. Judgment for Plaintiff for Costs where he confesses the Defence (e). The defendant in his defence herein having alleged a ground of defence which arose after the commencement of this action, and the plaintiff having on the 19, delivered a confession of that defence: day of It is this day adjudged that the plaintiff recover against the defendant costs to be taxed. The above costs have been taxed and allowed at £taxing officer's certificate dated the day of as 2 appears by a 19-. 9. Subsequent Proceedings. The forms of the proceedings in this case are the same as in ordinary cases. his statement of defence, or in any further statement of defence as in the last Rule mentioned, alleges any ground of defence which has arisen after the commencement of the action, the plaintiff may deliver a confession of such defence, which confession may be in the form No. 5 in Appendix B., with such variations as circumstances may require, and may thereupon sign judgment for his costs up to the time of the pleading of such defence; unless the Court or a Judge shall, either before or after the delivery of such confession, otherwise order." The above form No. 7 is the one referred to in the Rule. The form of judgment No. 8 is given in R. S. C., App. F., No. 15, Where the defendant pays money into Court, and sets up matter arising after action brought, but going only to the damages, this is not a "defence" within this Rule (Callendar v. Hawkins, 2 C. P. D. 592). (e) See note (d), supra. CHAPTER IX. PLEADING OR RAISING POINTS OF LAW (a). 1. Form of Pleading raising Point of Law. The The title and all other formal parts of the pleading will be as usual. point of law should be raised in a separate paragraph, thus, The defendant [or plaintiff] will object that, stating shortly the point of law. If several points are to be raised, each should be concisely stated in a separate paragraph. 2. Forms of Defence including an Objection in Point of Law (b). No. 1. Defence. To Action on a Guarantee for the Price of Goods.]-The defendant says that- 1. The goods were not supplied to E. F. on the guarantee. 2. The defendant will object that the guarantee discloses a past consideration on the face of it. (Signed) No. 2. To Action for verbal Slander actionable only by Reason of special Damage.] --The defendant says that- 1. The defendant did not speak or publish the words. 2. The words did not refer to the plaintiff. (a) Demurrers abolished.]—By R. S. C., Ord. XXV., r. 1, “No demurrer shall be allowed." 66 Points of Law may be raised in Pleadings.]—By r. 2, " Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial." Declaratory Judgment or Order may be sought.]—By r. 5, "No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not." (b) These forms are given in R. S. C., App. E., Lect. III. See ante, p. 104, n. (7). 3. The defendant will object that the special damage stated is not sufficient in point of law to sustain the action. (Signed) No. 3. To Action on a Marine Policy stated to contain Clauses that the Policy was to be Proof of Interest and without Benefit of Salvage.]--The defendant says that- 1. The defendant did not make the policy. 2. The loss was not by the perils insured against. 3. The defendant will object that the policy was avoided by 19 Geo. 2, c. 37, s. 1. (Signed) 3. Application for an Order that a Point of Law be set down for Hearing and disposed of before the Trial (c). Formal parts as usual] for an order that the point [or points] of law raised by the defendant [or plaintiff] in the paragraph of his defence [or reply, or as the case may be] be set down for hearing and disposed of forthwith, and before the trial of the issues of fact in this action. [An order may be framed from the terms of the application.] 4. Entry for Argument (d). [Title, &c., of action as usual.] Set down for argument [e.g., the points of law raised by the defenof his defence herein] [pursuant to the order herein dant in paragraph (c) Order that Point of Law be disposed of before the Trial.]—Rule 2 (supra, p.142) provides that by order on the application of either party, or by consent, a point of law raised in the pleadings may be set down for hearing and disposed of before the trial. By r. 3. "If, in the opinion of the Court or a Judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just." (d) This form is framed from that given in R. S. C., App. G., No. 24. 5. Notice of Entry for Argument. [Title, &c., of action as usual.] Take notice that I have this day entered for argument [&c., as in preceding form]. To Dated (Signed) X. Y., [Address, &c., as in No. 4.] 6. Application for Order to strike out Pleading which discloses no Cause of Action or Answer (e). Formal parts as usual] for an order that the plaintiff's statement of claim [or that paragraph of the plaintiff's statement of claim, or defendant's defence, or as the case may be] be struck out under the Rules of the Supreme Court, Order XXV., Rule 4, on the ground that it discloses no reasonable cause of action [or answer], and is frivolous and vexatious [and that the plaintiff's action be stayed or dismissed, and that the defendant be at liberty to sign judgment herein for his costs of defence and of this application to be taxed, or as the case may be]. [The order may be easily framed from the application.] it was ordered that [this action be dismissed, and the defendant be at liberty to sign judgment for his costs to be taxed, or as the case may be, following the words of the order made]: It is this day adjudged that the recover against the or as the case may be, following the terms of the order]. (e) Striking out Pleading disclosing no Cause of Action or Answer.]—By Ord. XXV., r. 4, "The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious the Court or a Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just." (See Hubbuck v. Wilkinson, [1899] 1 Q. B. 86; Wyatt v. Palmer, [1899] 2 Q. B. 106; Att.-Gen. of Duchy of Lanc. v. L. & N. W. R. Co., [1892] 3 Ch. 274.) III. Where Party to Issue other than Plaintiff or Defendant As to applying for judgment on admissions in the pleadings, see post, Part VI., Chap. I., ad fin. SECTION I.-WHERE PLAINTIFF MAKES DEFAULT. 1. Summons to dismiss Action for Want of Prosecution in Default of Delivery of Statement of Claim (a). [Formal parts as usual] for an order that this action be dismissed with costs to be taxed and paid to the defendant by the plaintiff for want of prosecution, the plaintiff not having delivered a statement of claim within the time limited by the order of, dated [and that the defendant be at liberty to sign judgment for his said costs]. (a) Default in delivering Statement of Claim.]-By Ord. XXVII., r. 1, "If the plaintiff, being bound to deliver a statement of claim, does not deliver the same within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action with costs, for want of prosecution; and on the hearing of such application the Court or Judge may, if no statement of claim shall have been delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or Judge shall think just." When an application is made under this Rule, a short time will generally be given to the plaintiff to deliver his statement of claim. If an order is made that unless the statement be delivered within a stated time the action shall be dismissed, and no statement be delivered before the expiration of that time, the action is at an end, and no time for delivering the claim can be afterwards given (Whistler v. Hancock, 3 Q. B. D. 83; Wallis v. Hepburn, 3 Q. B. D. 84 (n.); King v. Davenport, 4 Q. B. D. 402; Welply v. Buhl, 3 Q. B. D. 80; affirmed, id. 253); but the time for appealing from the order itself may be enlarged even after the expiration of the time limited by it (Carter v. Stubbs, 6 Q. B. D. 116; 29 W. R. 132-C. A., in which the above cases are distinguished, but not overruled. See per Brett, L.J., 6 Q. B. D. at pp. 120, 121 ; Burke v. Rooney, 4 C. P. D. 226; Metcalfe v. British Tea Association, 46 L. T. 31). Where the plaintiff had become bankrupt after making default, the Court ordered the notice of motion to dismiss to be served on his trustees (Wright v. Swindon, &c. Rail. Co., 4 Ch. D. 164). C.F. 10 |