to be paid by the unsuccessful party. If the parties intend that execution should not issue immediately upon the judgment to be entered on the finding of the jury, they should insert an express clause to that effect, showing when it may be issued. Conclude thus:] And we further agree that a Master's order may be made, embodying in it this agreement, if the Master shall think fit, and that the costs of the application for such order beDated X. Y., plaintiff's solicitor. 3. Application to obtain an Order for the Trial of an Issue on a Question or Questions of Fart without Pleadings. [Formal parts as usual in application to Master] for an order [by consent] that the parties in this action do proceed to a trial of the question [or questions] of fact in dispute between them without any formal pleadings [and that the agreement between the parties, dated the day of 19-, be embodied in such order], and that in the meantime all further proceedings be stayed, and that the costs of the application be [costs in the cause]. 4. Order thereon. [Formal parts as usual.] Upon hearing the solicitors [or agents] on both sides, and on reading the affidavit of X. Y., and by consent: It is ordered that the parties to this action proceed to the trial of the questions of fact which they have agreed should be decided between them; viz., whether or not [state the question or questions of fact agreed on to be decided], without any formal pleadings. [If the parties have already entered into an agreement as to a sum to be paid, here state it. It may be stated thus: The parties agreeing further, and it is ordered accordingly, that upon the finding of the jury in the affirmative [or negative] of the said question, a sum of £- (or a sum to be ascertained by the jury upon a question inserted in the issue for that purpose) shall be paid by the defendant (or plaintiff) to the plaintiff (or defendant) with the costs of the action. If it is agreed that execution shall not be issued for the amount immediately after the finding of the jury, then the order should state such agreement accordingly. If the parties have not already entered into this agreement, but afterwards do so, then there must be a subsequent order embodying it. Conclude thus:] And it is further ordered that in the meantime all further proceedings be stayed [and that the costs of this application be costs in the cause]. Dated 5. The Issue on a Question or Questions of Fact without Pleadings, where the Jury are not required to ascertain any Sum to be paid by either Whereas A. B. affirms, and C. D. denies, - -[here state the question or questions of fact to be tried; for example, if the action is for damages for the breach of warranty of soundness of a horse, and the only question of fact in dispute is such unsoundness, the question may be stated thus: The plaintiff affirms, and the defendant denies, that a certain horse was sound on the day of 19, at the time of the sale thereof by the defendant to the plaintiff, with a warranty by the defendant to the plaintiff that it was sound (d). If there be any other question of fact to be tried, state it accordingly. The commencement of it may be thus: And the plaintiff (or the defendant) also affirms, and the defendant (or the plaintiff) denies, that (e)]. And it has been ordered by [Master] that the said question [or questions] shall be tried [here state the mode of trial, e.g. :] by a Judge with a jury [or alone] at [by consent of the parties]: Therefore let the same be tried accordingly. 6. The like, where a Jury are required to ascertain a Sum to be paid by One of the Parties (f). [Proceed as in the preceding form to the asterisk*, and then state the question enabling the jury to ascertain the damages or money to be paid by either party to the other, which, in the example given in the preceding form, where the principal question is as to the breach of warranty of soundness of a horse, may be stated thus:] And the plaintiff also affirms, and the defendant denies, that the plaintiff has sustained damages to the amount of £- by reason of the said horse then being unsound; and it has been agreed between them, by an agreement embodied in the order hereinafter mentioned, that if the jury find in the affirmative of the said first question, the defendant shall pay to the plaintiff the amount of such damages as he has sustained by reason of the unsoundness of the said horse: and that the amount (c) This form is framed from that given in R. S. C., App. B., No. 15. Its use is sanctioned by Ord. XXXIV., r. 9, supra, p. 694, n. (a). (d) This example is not given in the prescribed form. (e) This is not in the prescribed form. (f) This form is adapted from that given by the C. L. P. Act, 1852, to meet the case where the parties agreed according to the 43rd section that the jury should ascertain what damages or sum of money should be paid by either party to the other. thereof shall be ascertained by the jury. [Conclude thus:] And it has been ordered by [Master] that the said question [or questions] shall be tried, and the said sum [or damages] shall be ascertained, with a jury at - Therefore let the same be tried and ascertained accordingly. 7. Notice of Trial, Certificate, &c. 8. Judgment. [See the forms Nos. 1 and 6, ante, pp. 373, 375.] [The same as in ordinary cases on a judgment after verdict.] CHAPTER VII. TRIAL WITHOUT PLEADINGS, UNDER R. S. C., ORD. XVIIIA. (a). 1. Indorsement of Writ of Summons (b). The plaintiff's claim is for [&c., continuing with a statement sufficient to give notice of the nature of the plaintiff's claim, or of the relief or remedy sought in the action. One of the forms of special indorsement given ante, pp. 44 et seq., will probably suffice.] [And £ for costs (&c., as usual; see ante, pp. 33, 34).] And take notice that if the defendant enters an appearance in this action, the plaintiff intends to proceed to trial without pleadings pursuant to Order XVIIIA. This writ was issued [&c., as usual; see ante, p. 34]. Take notice of trial of this action without pleadings [by a Judge with a jury], in Leicester [or as the case may be], for the — day of next (a) By R. S. C., Ord. XVIIIA., “A plaintiff may, without pleadings, proceed to trial subject to the following rules," which are set out below. (b) By Ord. XVIIIA., r. 1, “The indorsement of the writ of summons shall contain a statement sufficient to give notice of the nature of his claim, or of the relief or remedy required in the action, and shall state that if the defendant appears the plaintiff intends to proceed to trial without pleadings." (c) By Ord. XVIIIA., r. 2, "Within ten days after appearance the plaintiff shall serve twenty-one days' notice of trial without pleadings. Such notice shall be in form No. 16 (A), Appendix B., with such variations as circumstances may require." The above form follows that prescribed. If the plaintiff adopt the procedure allowed by Ord. XVIIIA., no summons for directions is required (see Ord. XXX., r. 1 (d) ). 3. Defendant's Summons for Statement of Claim (d). [Formal parts as usual in summons before Master] on the hearing of an application on the part of the defendant for an order that the plaintiff deliver a statement of claim in this action, and that the costs of this application be Dated [&c., concluding as usual]. 4. Order on above Summons (e). [Title, &c., as usual.] Upon hearing [the solicitors on both sides] [and upon reading —] : It is ordered that the plaintiff deliver to the defendant a statement of claim herein [within days] [and that -], and that the costs of this application be Dated Or, It is ordered that the action proceed to trial without pleadings (f) [and that the plaintiff (or defendant) deliver to the defendant (or plaintiff) within days particulars (ƒ) of his claim (or defence, or specify the matter as to which particulars are to be delivered)], and that the costs of this application be •] Dated [Any further directions which the Master may think fit to give may be inserted in either of the above forms of order (g). See form No. 2, ante, p. 155]. (d) By Ord. XVIIIA., r. 3, "The defendant may within ten days after appearance apply by summons for the delivery of a statement of claim, and on such summons the Judge may order (1) that a statement of claim shall be delivered, in which case the action shall proceed in the usual manner; or (2) that the action shall proceed to trial without pleadings, in which case it may be further ordered, if the Judge shall think fit, that either party shall deliver particulars of his claim or defence." By r. 6, "When a plaintiff endorses the writ of summons with a statement that, if the defendant appears, he intends to proceed to trial without pleadings, no pleadings shall be required or delivered, except by order of the Judge made under Rule 3 of this Order." (e) See Ord. XVIIIA., г. 3, supra. (f) By Ord. XVIIIA., r. 4, “ When the Judge orders that the action shall proceed to trial without pleadings, and makes no order as to particulars, all defences shall be open at the trial to the defendant. Where particulars are ordered to be delivered the parties shall be bound by such particulars, so far as regards the matters in respect of which the order for particulars was made." (g) By Ord. XXX., r. 1 (e), “Where, under Ord. XVIIIA., the defendant applies for a statement of claim, the Judge may deal with such application as if the plaintiff had been entitled to take out, and had taken out, a summons for directions." |