3. Affidavit of Execution of Warrant of Attorney as required by the 3 Geo. IV., c. 39, and the Debtors Act, 1869 (g).

In the High Court of Justice.

King's Bench Division.

I, W. W., of

a solicitor of the Supreme Court, make oath and

say that the warrant of attorney hereunto annexed bears date and was

executed by

the day of

of

[and also by -], in my presence, on

19- and that the name W. W. set and subscribed as the witness attesting the signature [or signatures] of the said [and ] thereto is my handwriting

66

Sworn [&c., as usual; see post, “ Affidavits ”].

4. Affidavit for Leave to sign Judgment after a Year (h).

[Title, &c., of action as usual.]

W. W.

We, A. B., of the above-named plaintiff, X. Y., of solicitor for the above-named plaintiff, and C. C., of, clerk to the said X. Y., severally make oath and say :-

And first I, the said A. B, for myself, say:

1. Before the execution of the warrant of attorney hereinafter mentioned, C. D., the above-named defendant, was justly and truly indebted to me, the said A. B., in £ for goods sold and delivered by me to the said C. D. [or as the case may be, stating concisely the nature of the debt].

2. The said C. D. being so indebted to me, on the day of 19, after the said debt had become payable, gave to me [his bond in the sum of £ conditioned for the payment of the said £

upon a day (or at certain times) therein mentioned and now elapsed, and also, as a further security for the said debt, the said C. D. duly executed to me] his warrant of attorney as aforesaid, by which the said C. D. authorized certain solicitors therein mentioned to appear for him in this Honourable Court [and to receive for him a statement of claim] in an action for £- at my suit, and thereupon to confess the same action, or else to suffer a judgment by default, or otherwise, to pass against him in the said action, and to be

(g) See 2 Pract. 14th ed. 1314. The affidavit of the due execution of the warrant must be filed at the same time as the warrant itself, and such affidavit must state the day of the execution.

(h) In order to sign judgment upon the warrant, an action must be brought against the person who gave it, and an appearance entered for him pursuant to the warrant. Within a year and a day from the date of the warrant judgment may be entered up as of course; but not after that time, without leave of a Master, unless the warrant or defeazance in express terms dispenses with the necessity for such leave (see 2 Pract. 14th ed. 1318).

The application for leave to sign judgment is made ex parte, and must be founded upon an affidavit stating the execution of the warrant, the consideration for it, the amount remaining due to the plaintiff, and that the defendant is alive (see 2 Pract. 14th ed. 1319-1322, where the cases as to the contents of the affidavit are collected).

thereupon forthwith entered up against him of record in this Honourable Court, for the said sum of £- besides costs of suit [let this agree with the warrant]: And upon which said warrant of attorney was indorsed a defeazance, whereby it was agreed that the said £ should be paid, with interest, on the days and in manner following: that is to say, £

on [&c., proceed as in the defeazance]; and that judgment should not be entered up in pursuance of the said warrant until and that no execution shall be sued out, or other proceedings taken upon the judgment so to be entered up, until [&c., proceed as in the defeazance].

3. The said C. D. has not paid to me, or to any person for me, or on my behalf, the said £, but the same, together with interest thereon, making altogether £- is still due and owing from the said C. D. to me.

And I, the said X. Y., for myself, say;

4. I was present on and did then see the said C. D. duly execute the said warrant of attorney, and the said C. D. did then sign, seal and as his act and deed deliver the said warrant in my presence, and that the name C. D. at the foot thereof is of the proper handwriting of the said C. D.; and that the name D. Z. subscribed to the said warrant as the witness thereof is my handwriting.

And I, the said C. C., for myself, say:

5. I personally know the said C. D., and I verily believe that the said C. D. is now living, I, the said C. C., having seen him alive [and conversed with him] on [or having received on a letter from him

in his own handwriting, dated

-].

Sworn [&c., as usual; see post, “Affidavits ”].

day of

5. Order thereupon.

[Title, &c., of action as usual.]

Upon reading the affidavits of A. B., X. Y., and C. C., filed the 19—, and the warrant of attorney therein mentioned : It is ordered that the plaintiff be at liberty to sign judgment against the said defendant upon the said warrant of attorney.

The defendant having executed a warrant of attorney, bearing date the day of, 19--, whereby the above-named plaintiff was authorized

(i) Judgment may be signed on production of a certificate of the defendant's appearance, and a certificate that the original warrant of attorney has been filed. Where an order for leave to sign judgment is necessary, the order must be also produced. See 2 Pract. 14th ed. 1316, 1322.

to enter up judgment against the said defendant for £

and costs of suit [according to the warrant] It is adjudged that the plaintiff recover against the defendant £ and £3 10s. costs.

:

Original warrant of attorney filed the

day of 19--.

7. Execution on a Judgment upon a Warrant of Attorney.
[The same as in ordinary cases.]

CHAPTER IV.

REFERENCE TO ASSESS DAMAGES, WRIT OF INQUIRY, &C.

III.

Writ of Inquiry to ascertain Arrears of Rent-charge under
Tithe Commutation Act

€ 687

As to the "Writ of Inquiry, &c., in an Action on a Bond within the 8 & 9 Will. 3, c. 11," see ante, p. 651.

SECTION I. REFERENCE TO ASSESS DAMAGES (@).

1. Affidavit for Order of Reference (b).

[Title, &c., of action as usual.]

I, X. Y., of ———————, solicitor in this action for the above-named plaintiff, make oath and say as follows :—

1. This action is brought by the plaintiff against the defendant for

(a) On a judgment in default of appearance (Ord. XIII., rr. 5 and 6), or in default of pleading (Ord. XXVII., r. 4), damages may "be ascertained in any way which the Court or a Judge may direct." Under the above Rules the amount of the damages may be referred to a Master or Official Referee.

By Ord. XXXVI., r. 57, “In every action or proceeding in the Queen's Bench Division in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered 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 entered shall be ascertained by an officer of the Court, and the attendance of witnesses and the production of documents before such officer may be compelled by subpœna, and such officer may adjourn the inquiry from time to time, and shall indorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order with such indorsement to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury upon a writ of inquiry."

By r. 57A, "The direction in Rule 57 mentioned may be made to any one of the official referees, or to the official referee in rotation ; and in such case the powers given by the said Rule to the officer of the Court therein mentioned shall be exercised by such official referee; and the provisions of the Rules as to the distribution of business amongst the official referees shall apply to directions given under Rule 57."

By R. S. C., Ord. XXXIII., r. 2, "The Court or a Judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner." See also Judicature Act, 1873, s. 66.

(b) As to references to assess damages, see generally 2 Pract. 14th ed. 1326. By

[state shortly the cause of action as in the writ or statement of claim, or more fully if necessary, and show that the amount of damages sought to be recovered is merely, or at any rate substantially, a matter of calculation, more fitting to be computed by a Master or Official Referee than by a writ of inquiry]. 2. Interlocutory judgment against the defendant was signed in this action on the day of 19-, for default of appearance [or delivery of

defence, as the case may be].

Sworn [&c., as usual; see post," Affidavits "].

This affidavit is filed on behalf of the plaintiff.

2. Application to ascertain Damages by Reference.

[Formal parts as usual in application to Master] for an order that the amount of damages, for which final judgment is to be signed in this action, be ascertained by one of the Masters [or Official Referees] of the Supreme Court, and that the plaintiff be at liberty to sign final judgment on the amount so ascertained, without executing a writ of inquiry of damages, and that the plaintiff be allowed to add to the judgment the costs of this application to be taxed.

3. Proceedings on the Reference.

[See 2 Pr. 14th ed. 1330.]

4. The Certificate.

[Title, &c., as usual.]

I certify that the amount of damages to which the plaintiff is entitled, and for which final judgment herein is to be signed, has been ascertained before me at the sum of £

Dated the day of

19-.

(Signed)

[The certificate should be indorsed upon the order for the reference.]

locutory judgment herein against the defendant in default of appearance [or defence] for damages to be assessed, and [Master

having on

Ord. XXXVI., r. 58, "Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of assessment."

(c) By Ord. XLI., r. 8, "Where reference is made to a Master to ascertain the amount for which final judgment is to be entered, the Master's certificate shall be filed in the Central Office when judgment is entered."