He may nevertheless rely contained in the plaintiff's statement of claim. upon any ground of defence which he can prove except as herein before mentioned." (See Danford v. McAnulty, 8 App. Cas. 456.) Under this Rule, where the defendant relies upon an equitable title, he must state fully the material facts and assurances on which he relies (Sutcliffe v. James, 40 L. T. 875; 27 W. R. 750). The 28. Judgment for Plaintiff in Default of Defence (1). No defence having been delivered herein [if only one of several defendants has made default, add: by the defendant C. D.]: It is this day adjudged that the plaintiff [or naming the person whose title is asserted in the writ, if not the plaintiff] do recover possession of the land in the statement of claim herein mentioned, namely, [describing the property] [as against the said defendant], and costs to be taxed [or £ (fixed) costs]. 29. Judgment for Plaintiff after Trial by Jury. [Title, &c., of action as usual.] 19-. The day of This action having on the been tried before the Honourable Mr. Justice with a [special] jury of the county of; and the jury having found that [state the findings as in the officer's certificate, e.g., that] the plaintiff is entitled to the possession of the land in the writ of summons [or statement of claim] herein mentioned and described; and the said Mr. Justice having ordered that [state the Judge's direction as in the officer's certificate, e.g., that] judgment be entered for the plaintiff (t) By R. S. C., Ord. XXVII., r. 7, "In an action for the recovery of land, if the defendant 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." The default referred to is default in delivering a defence within the time limited for that purpose. By r. 8 (as amended by R. S. C., Dec. 1885), "Where the plaintiff has endorsed 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 contract, or wrong or injury to the premises claimed, upon a 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" (ante, p. 148, n. (ƒ)). If the defence purports to offer an answer to part only of the claim, the plaintiff may apply for leave to sign judgment for that part of the claim which is unanswered. See R. S. C., Ord. XXVII., r. 9 (ante, p. 150, n.). for the recovery of the possession of the said land in the mentioned and described, and for his costs of action to be taxed : herein Therefore it is adjudged that the plaintiff recover possession of the said land in the writ of summons [or statement of claim] herein mentioned and described as [insert the description], and his costs to be taxed [make the judgment agree with the Judge's direction. The costs of the action follow the event of the trial by jury, unless the Judge, for good cause, otherwise orders]. 30. The like, for Plaintiff as to Part of the Land claimed, and for Defendant as to Residue. [Follow the preceding form to the asterisk*, and then say] and the jury having found that [state the findings as in the certificate, e.g., that] the plaintiff is entitled to the possession of the piece of land called and known as --, parcel of the land in the [statement of claim] herein mentioned and described [or of one undivided moiety, the whole into two equal moieties to be divided, of and in the land in the (statement of claim) herein mentioned and described], but that the plaintiff is not entitled to the residue [or the other undivided moiety] of the said land, or any part thereof; and the said Mr. Justice having directed that [state the direction as in the certificate, e.g., that] judgment be entered for the plaintiff for the recovery of the possession of the said piece of land called and known as -, parcel as aforesaid [or the said one undivided moiety of the said land], and for his costs of action other than costs of the issue relating to the residue [or the said other undivided moiety] of the said land, and that judgment be entered for the defendant as to the said residue [or the said other undivided moiety] of the said land, and for his costs of defence of the issue relating thereto : Therefore it is adjudged that the plaintiff recover possession of the piece of land called and known as -, parcel of the land [or possession of one undivided moiety, the whole into two equal moieties to be divided, of and in the land] in the [statement of claim] herein mentioned and described as [insert the description], and his costs of action (to be taxed) other than costs of the issue relating to the residue [or other undivided moiety] of the said land; and that the plaintiff recover nothing against the defendant as to the said residue [or other undivided. moiety] of the said land; and that the defendant recover against the plaintiff his costs of defence (to be taxed) of the issue relating to the said residue [or other undivided moiety] of the said land. 31. Judgment for Defendant after Trial by Jury. The ordinary form, ante, p. 379, may be adapted. 32. Præcipe for Writ of Possession (u). [Title, &c., of action as usual.] Seal a writ of possession directed to the sheriff of to deliver possession to the plaintiff of the premises in the [judgment] herein mentioned [or as may be]. Judgment dated the Dated day of 19-. (Signed) X. Y., (Address) Of Solicitor for the plaintiff. 33. Writ of Possession (r). [Title, &c., of action as usual.] Edward the Seventh, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith, to the sheriff of -, greeting: Whereas lately in our High Court of Justice, by a judgment of the King's Bench Division of the same Court, A. B. recovered [or E. F. was ordered to deliver to A. B.] possession of all that [describe the property recovered, as in the judgment or order], with the appurtenances in your bailiwick: Therefore we command you that you omit not by reason of any liberty of your county, but that you enter the same, and without delay you cause the said A. B. to have possession of the said land and premises, with the appurtenances.* And in what manner you have executed this our writ make appear to us in our High Court of Justice immediately after the execution thereof. And have there then this writ. Witness * of Lord Chancellor], Lord High Chancellor of Great Britain, the [name day (u) By R. S. C., Ord. XLII., r. 5, "A judgment for the recovery or for the delivery of the possession of land may be enforced by writ of possession." By Ord. XLVII., r. 1, “ A judgment or order that a party do recover possession of any land may be enforced by writ of possession in manner before the commencement of the principal Act used in actions of ejectment in the superior Courts of Common Law." Judgment is usually entered in the form referred to in this Rule, i.e., that the plaintiff do recover possession. And when it is thus entered the plaintiff may, without filing any affidavit, proceed to execution at once. See generally 2 Pr. 14th ed. 1226. By r. 2, "Where by any judgment or order any person therein named is directed to deliver up possession of any lands to some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed." The affidavit is only necessary in cases within this Rule, i.e., where the judgment directs the defendant "to deliver up possession." The judgment on an award is usually in this form. As to the præcipe, see ante, p. 389, n. (c). The above form is given in R. S. C., App. G., No. 7. () This form of writ is prescribed by R. S. C., App. H., No. 8. See note (u), supra. solicitor for the above-named plaintiff A. B., who resides at and resides at The [in your bailiwick]. Cause delivered to the said A. B. of the within-mentioned (describing the property), parcel of the within defendant is a possession to be premises [or of mentioned premises]. 34. Præcipe for Writ of Possession and Fi. Fa. combined (y). [Title, &c., of action as usual.] Seal a writ of possession and fi. fa. combined directed to the sheriff of to deliver possession to the plaintiff of the land and premises in the judgment [or order] herein mentioned [if the writ is required for part only of the premises, add: and described as (describing the part)]. And also to levy against C. D., of -, in the [county] of the sum of [£ debt, and] - costs, and interest at the rate of £4 per centum per annum on the said amount from the 19-. [If part has been paid, add: indorsed to levy £ &c., according to the intended indorsement]. Judgment [or order] dated the officer's certificate dated the day of day of day of, 19—. Taxing 19-. Dated [&c., concluding as in form No. 32]. 35. Writ of Possession and Fi. Fa. combined, upon a Judgment for Plaintiff in Ejectment where Defendant has appeared (y). [Title, &c., of action as usual.] Edward the Seventh [&c., as in form No. 33 to the asterisk*, and then say] And we further command you that of the goods and chattels of the said C. D. in your bailiwick you cause to be made the sum of £, and also interest thereon at the rate of £4 per centum per annum from the day of 19, which said sum of money and interest were in the said action by the judgment therein adjudged [or order therein dated the day of, 19-, ordered] to be paid by the said C. D. to the said A. B., together with certain costs in the said judgment [or order] mentioned, and which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £ as appears by the certificate of the 19. And that of the said taxing officer dated the day of goods and chattels of the said C. D. in your bailiwick you further cause to be made the said sum of £ [costs], together with interest thereon at (y) By R. S. C., Ord. XLVII., r. 3, " Upon any judgment or order for the recovery of any land and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the successful party." Where mesne profits, arrears of rent, &c., are also recovered, the practice is to allow a fi, fa, for these, with or without the costs, to be combined with a writ of possession for the land. 39 C.F. day of - 19-. the rate of £4 per centum per annum from the And that you have that money and interest before us in our said Court immediately after the execution hereof, to be paid to the said A. B. in pursuance of the said judgment [or order]. in form No. 33, supra. Adding at the end the further indorsement:] And levy £ £4 per centum per annum from the for costs of execution, besides poundage, fees and expenses of execution. And in what manner [&c., as of the indorsements there given, [and £ -] and interest at day of 36. Fi. Fa. for Costs (z). [Title, &c., of action as usual.] 19-, and £ Edward the Seventh [&c., as in form No. 33], to the sheriff of greeting: We command you that of the goods and chattels of C. D. in your bailiwick you cause to be made the sum of £ for certain costs which by a judgment [or order] of our High Court of Justice dated the day of, 19-, were adjudged [or ordered] to be paid by the said C. D. to A. B., and which have been taxed and allowed at the said sum, and also interest on the said sum at the rate of £4 per centum per annum from the day of 19. And that you have the said sum and interest before us [&c., conclude as in form No. 35, supra, omitting the indorsement as to delivery of possession]. 37. Sheriff's Warrant on a Writ of Possession and Fi. Fa. for Costs. S. S., Esquire, sheriff of the county aforesaid, to B. B. and to wit. C. B. my bailiffs, greeting: By virtue of his Majesty's writ of possession and fi. fa., to me directed and delivered, I command you, and each of you jointly and severally, that you, or one of you, deliver to A. B. possession of [describe the property as in the writ], with the appurtenances, in my bailiwick, and forthwith certify the same to me (a): Also, that of the goods and chattels of C. D. in my bailiwick you, or one of you, cause to be made £, together with interest upon the said sum at the rate of £4 per centum per annum from the day of 19-, so that I may have that money and interest before our lord the King in the King's Bench Division of His Majesty's High Court of Justice immediately as required by the said writ. And that you do all such things, &c. And in what manner you shall have executed this warrant certify to me immediately after the execution thereof. (2) This form is framed from that given in R. S. C., App. H., No. 2. (a) A warrant on a habere facias only should end here, the usual conclusion, "Given under the seal, &c.," being added. |