CHAPTER IV. ACTION OF MANDAMUS (@). 1. Indorsement on Writ of Claim for Mandamus (b). The plaintiff's claim is for [or, if joined with other claims: And for] a mandamus commanding the defendant to [here state concisely the precise duty the performance of which it is sought to enforce. The duty must be of a public or quasi-public character]. 2. Statement of Claim. The statement of claim should state the grounds upon which the claim for a mandamus is founded, and show that the plaintiff is personally interested therein, that he sustains, or may sustain, damage by the nonperformance of the duty sought to be enforced, and that performance has been demanded by him, and refused or neglected. The claim at the end of the statement may be in the same form as that indorsed on the writ [see form No. 1, supra]. 3. Interlocutory Application for Mandamus. [See ante, p. 223.] 4. Judgment (c). [Commence as in the ordinary form, reciting either the order or the officer's certificate, and proceed as follows:] It is this day adjudged that [if (a) See 2 Pract. 14th ed. 1274; Reg. v. L. & N. W. R. Co., [1894] 2 Q. B. 512. (b) By Ord. LIII., r. 1, "The plaintiff, in any action in which he shall claim a mandamus to command the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, shall indorse such claim upon the writ of summons." By r. 2, "The indorsement shall be in the form given in Section IV. of Appendix A., Part III." The above form is framed from that referred to in this Rule. (c) By Ord. LIII. r. 3, “If judgment be given for the plaintiff the Court or Judge may, by the judgment, command the defendant either forthwith, or on the expiration of such time and upon such terms as may appear to the Court or a Judge to be just, to perform the duty in question. The Court or a Judge may also extend the time for the performance of the duty." By r. 4, "No writ of mandamus shall hereafter be issued in an action, but a mandamus shall be by judgment or order, which shall have the same effect as a writ of mandamus formerly had." any judgment besides that for mandamus be given, here state it, and then say: and that] the defendant do and he is hereby commanded forthwith [or on or before act or thing commanded, and conclude as usual]. or as the case may be] to [here state concisely the 5. Proceedings to compel Compliance, or in case of Non-compliance. The judgment should be served on the defendant duly indorsed, as required by Ord. XLI., r. 5 (ante, p. 381). If the defendant does not comply with it, an application to attach him may be made (see Ord. XLII., r. 7, ante, p. 469). By Ord. XLII., r. 30, “If a mandamus, granted in an action or otherwise, or a mandatory order, injunction, or judgment for the specific performance of any contract be not complied with, the Court or a Judge, besides or instead of proceedings against the disobedient party for contempt, may direct that the act required to be done may be done so far as practicable by the party by whom the judgment or order has been obtained, or some other person appointed by the Court or Judge, at the cost of the disobedient party, and upon the act being done, the expenses incurred may be ascertained in such manner as the Court or a Judge may direct, and execution may issue for the amount so ascertained, and costs." CHAPTER V. ACTION FOR INJUNCTION. 1. Indorsement on Writ of Claim for Injunction (a). The plaintiff's claim is for [or, if joined with other claims: And for] an injunction to restrain the defendant [his agents and servants] from [state concisely the act or thing which it is sought to restrain the defendant from committing; where this appears in the earlier part of the claim it may suffice to say from continuing or repeating the acts above complained of]. 2. Statement of Claim. State the facts in the usual way. The claim at the end may be in the same form as that in the indorsement on the writ. See the forms, ante, pp. 107 et seq. 3. Interlocutory Application for Injunction. [See ante, pp. 218 et seq.] 4. Julgment (b). [Commence as in the ordinary form, reciting the order or officer's certificate, and proceed as follows:] It is this day adjudged that the defendant [his agents and servants] be, and he is [and they are], hereby restrained [and ordered to desist] from [here state concisely the prohibited acts]. And it is further adjudged that the plaintiff recover against the defendant his costs of action to be taxed. 5. Judgment for Mandatory Injunction (e). [Commence as usual.] It is adjudged, and hereby ordered, that the defendant do forthwith [or within -] pull down and remove [&c., or as the case may be, stating concisely the acts to be done]. 6. Proceedings to enforce Compliance, or in case of Non-compliance. [Same as in case of mandamus, ante, p. 647.] (a) This form is framed from that given in R. S. C., App. A., Pt. III, Sect. IV. (b) By Ord. L., r. 11, "No writ of injunction shall be issued. An injunction shall be by a judgment or order, and any such judgment or order shall have the effect which a writ of injunction previously had." (e) See Jackson v. Normanby Brick Co., [1899] 1 Ch. 438. CHAPTER VI. ACTIONS ON BONDS WITHIN 8 & 9 WILL. 3, c. 11, WHERE DEFENDANT FAILS TO APPEAR (α). SECTION I. Preliminary Proceedings. II. Proceedings where Defendant fails to appear. SECTION I.-PRELIMINARY PROCEEDINGS. PAGE 649 649 654 The writ of summons and subsequent proceedings are the same as in ordinary cases, and it is only in cases where the defendant fails to appear that the particular proceedings authorized by the 8 & 9 Will. 3, c. 11, are available. For a form of indorsement on the writ, see ante, p. 41. By R. S. C., Ord. XXII., r. 1 (ante, p. 163), payment into Court in an action on a bond under the 8 & 9 Will. 3, c. 11, is admissible to particular breaches only, and not to the whole action. SECTION II.-PROCEEDINGS WHERE DEFENDANT FAILS TO APPEAR (b). 1. Interlocutory Judgment in Default of Appearance (b). , No appearance having been entered to the writ of summons herein: It is adjudged that the plaintiff recover against the defendant £- the penalty of the bond in the writ of summons herein mentioned. Execution stayed, [with liberty to] the parties to proceed further under the statute. 2. Suggestion of Breaches (b). [Title, &c., of action as usual]. Suggestion of Breaches delivered pursuant to R. S. C., Ord. XIII., r. 14. Whereas on the day of 19, the plaintiff obtained interlocutory judgment in this action against the defendant in default of (a) As to actions on such bonds, see generally 2 Pract. 14th ed. 1279. (b) By R. S. C., Ord. XIII., r. 14, "Where the writ is indorsed with a claim on a bond within 8 & 9 Will. 3, c. 11, and the defendant fails to appear thereto, no statement of claim shall be delivered, and the plaintiff may at once suggest breaches by delivering a appearance for £, the penalty of the bond in the writ of summons herein mentioned: Therefore the plaintiff, according to the statute in that behalf, suggests and gives the Court here to understand and be informed that the said bond was and is subject to a condition thereunder written, whereby, after reciting that [&c., state the recitals in the past tense], it was declared that the condition of the said bond was such that if [&c., state the condition in the past tense*; then state the breaches thus:] And for a breach of the said condition, the plaintiff, according to the said statute, suggests and gives the Court here to understand and be informed that the defendant did not, nor would [&c., state the breach, and if there be two or more breaches, state them thus:] And the plaintiff, for assigning a further breach of the said condition, according to the said statute, further suggests and gives the Court here to understand and be informed that [&c., state the further breach]. But because f it is convenient and necessary that final judgment of and upon the premises aforesaid should not be given until such time as the truth of the said breaches above suggested shall have been inquired into, and the damages by the plaintiff sustained by reason of the said breaches shall have been assessed by a jury of the county in that behalf, according to the statute in that behalf, the signing of final judgment herein is stayed until such time accordingly. Delivered the day of, 19-, by X. Y., of the plaintiff, to [D. S., of solicitor for] the defendant. solicitor for 2. The like, upon Bond for Performance of Covenants in another Indenture. [If the bond be for the performance of covenants in another indenture, then proceed as in the preceding form to the asterisk*, and then thus:] And the plaintiff further suggests and gives the Court here to understand and be informed that, by the said indenture mentioned in the said condition, the defendant, for the consideration mentioned in the said indenture, did grant [&c., as in indenture], to have and to hold [&c., as in indenture], subject, nevertheless, to a proviso for the redemption of the said premises, being the proviso mentioned in the said condition, whereby it was provided [&c., reciting the proviso]. And for a breach of the said condition, the plaintiff, according to the said statute, suggests and gives the Court here to understand and be informed that the defendant did not nor would pay to the plaintiff the said £- and interest in the said condition mentioned, on the said day of next ensuing the date of the said bond, or at any time before or afterwards, and wholly neglected and refused so to do; and the said £, together with £ for the interest thereon, payable as aforesaid, is still wholly due and unpaid to the plaintiff, contrary to the form and effect of the said condition of the said bond. But because [&c. conclude from the dagger in the preceding form]. suggestion thereof to the defendant or his solicitor, and proceed as mentioned in the said statute and in 3 & 4 Will. 4, c. 42, s. 16." See 2 Pract. 14th ed. 1282; Strickland v. Williams, [1899] 1 Q. B. 382, and cases there cited. |