The defendant [- -] not having appeared to the writ of summons herein, it is this day adjudged that the plaintiff recover against the said defendant £ and £ [fixed] costs. 12. Interlocutory Judgment in Default of Appearance where Claim for The Damages (i). [Title, &c., as in form No. 1, supra.] day of 19-. No appearance having been entered to the writ of summons by the defendant herein, it is this day adjudged that the plaintiff recover against the defendant damages to be assessed. 13. Interlocutory Judgment in Default of Appearance where Claim for Detention of Goods. No appearance having been entered to the writ of summons by the defendant herein, it is this day adjudged that the plaintiff have a return of the goods in the writ of summons herein mentioned and described as [-], or their value, to be assessed, and damages for the detention thereof, also to be assessed. 14. Final Judgment in Default of Appearance where Claim for Damages, after Assessment of Damages on Writ of Inquiry (i). The [Title, &c., as in form No. 1, supra.] day of 19-. The plaintiff having on the day of 19-, obtained interlocutory judgment herein against the defendant in default of appearance, and a writ (1) Judgment in Default where Claim for Detention of Goods or pecuniary Damages.] -By Ord. XIII., r. 5, "Where the writ is indorsed with a claim for detention of goods and pecuniary damages, or either of them, and the defendant fails, or all the defendants, if more than one, fail to appear, the plaintiff may enter interlocutory judgment, and a writ of inquiry shall issue to assess the value of the goods and the damages, or the damages only, as the case may be, in respect of the causes of action disclosed by the indorsement on the writ of summons. But the Court or a Judge may order that instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way which the Court or Judge may direct." This Rule is treated in practice as applicable to all claims for unliquidated damages, whether for detention of goods or otherwise (see Eyre v. Eyre, 45 Sol. Journ. 648, 653). By Ord. XIII., r. 6, "Where the writ is indorsed as in the last preceding Rule of inquiry, dated the day of, 19-, having been issued, directed to assess the damages which the plaintiff was entitled to recover, and the said sheriff [or sheriffs] having by his [or their] return dated the day of 19-, returned that the said damages have been assessed at £- : It is adjudged that the plaintiff recover against the said defendant and costs, to be taxed. The above costs have been taxed and allowed at £the Taxing Officer's Certificate, dated the The day of 15. The like, when Damages assessed by Official Referee. [Title, &c., as usual in form No. 1, supra.] The plaintiff having on the day of locutory judgment herein against the defendant in default of appearance for damages to be assessed, and having on the 19—, ordered that the said damages be assessed by an official referee of the and assessed the said damages at £- as appears by his certificate dated the Therefore it is adjudged that the plaintiff recover against the defendant £ and costs, to be taxed. 16. The like, when Damages assessed by Master (k). 19-. [Title, &c., as usual in form No. 1, supra.] The defendant not having appeared to the writ of summons herein, and it having been referred to one of the Masters of this Court to ascertain for mentioned, and there are several defendants, of whom one or more appear to the writ, and another or others of them fail to appear, the plaintiff may sign interlocutory judgment against the defendant or defendants so failing to appear, and the value of the goods and the damages, or either of them, as the case may be, may be assessed, as against the defendant or defendants suffering judgment by default, at the same time as the trial of the action or issue therein against the other defendant or defendants, unless the Court or a Judge shall otherwise direct. Provided that the Court or a Judge may order that instead of a writ of inquiry or trial, the value, and amount of damages, or either of them, shall be ascertained in any way which the Court or Judge may direct." The above forms Nos. 12 and 14 are framed from those given in R. S. C., App. F., Nos. 2 and 4. When the claim is for the return of specific goods, the plaintiff may sign judgment under this Rule for the return of the goods, and then proceed under Ord. XLII., r. 6, i.e., by writ of delivery (see post, "Writ of Delivery"; Ivory v. Cruickshank, W. N. 1875, 249, per Quain, J., at Chambers, where the learned Judge intimated an opinion, which seems correct, that no order was necessary before signing such judgment). For a form of writ of inquiry and proceedings thereon, see post, Part XI., Chap. IV., Writ of Inquiry and Proceedings thereon." (k) See Ord. XIII., r. 5, supra, and post, "Reference to Master," Part XI., Chap. IV. what amount judgment should be signed in this action, and Master having certified that judgment should be entered for £ [as the case may be], it is this day adjudged that the plaintiff recover against the defendant £- and costs, to be taxed. 17. Summons on Application to set aside Judgment signed for Default of Appearance (1). [This may be framed from the forms of orders, infra.] 18. Affidavit in support of Application (1). 66 [Title, &c., as usual; see post, “ Affidavits.”] I, C. D., of, the above-named defendant, and I, E. F., of solicitor for the said C. D. in this action, severally make oath and say as follows: 1. I, the said C. D., for myself say [&c. State the facts of the case, showing the issuing of the writ, and the service of it, and when the time for appearance expired, and explaining satisfactorily, as far as possible, how it was that the defendant did not appear according to the writ, whether it arose from inadvertence or mistake, or otherwise. The defendant's statement had better be corroborated, if it can be, by the affidavit of another person. form must necessarily vary according to the circumstances of each case.] The 2. For the reasons and under the circumstances aforesaid, I, the said C. D., did not appear to the said writ of summons, and I have not yet appeared thereto. 3. [Here state shortly facts disclosing a defence upon the merits, so as to satisfy the Master that there is such defence]. 4. For the reasons and under the circumstances aforesaid, I am advised and verily believe that I have a defence to this action upon the merits. 5. And I, the said E. F., for myself say that judgment was signed in this action against the said defendant on the last day of (1) Setting aside Judgment signed in Default of Appearance.]—By Ord. XIII., r. 10, “Where judgment is entered pursuant to any of the preceding Rules of this Order, it shall be lawful for the Court or a Judge to set aside or vary such judgment upon such terms as may be just." The application is made by summons. The Rules do not expressly require an affidavit, but it is necessary that one should in all cases be produced (Watt v. Barnett, 3 Q. B. D. 183; affirmed, Id. 363; Smith v. Dobbin, 3 Ex. D. 338; 37 L. T. 388; ld. 777, per Brett. L. J.). An affidavit of merits is necessary only when judgment has been regularly signed (cp. Hall v. Scotson, 23 L. J. Ex. 85, per Parke, B.). See as to setting aside the judgment when it has been irregularly signed, post, Part V. As to the effect of delay in making the application, see Atwood v. Chichester (C. A.), 3 Q. B. D. 722; 38 L. T. 48; Davis v. Ballenden (C. A.), 46 L. T. 797. As to setting aside the judgment when substituted service has been ordered, see Watt v. Barnett, 3 Q. B. D. 183; affirmed, Id. 363. [or instant] for want of appearance, but execution has not yet been issued thereon, as I am informed and verily believe. [State grounds of belief. If execution has been issued, omit this allegation, and account for delay, if any, in making the application.] Sworn [&c., as usual; see post, "Affidavits "]. This affidavit is filed [&c., as usual]. 19. Order thereon when Judgment regular (m). [Formal parts as usual.] It is ordered that, upon payment by the defendant, within days after taxation, of the costs of the judgment signed [and execution issued] herein and of this application [or of all costs thrown away], to be taxed, the judgment signed [and execution issued] herein be set aside, and the defendant be at liberty to defend by entering an appearance within days from the date hereof, otherwise the judgment [and execution] to stand and defendant to pay the costs of this application. [Here add such terms as to time of delivering pleadings, &c., as the Master may deem just. Or, instead of making the payment of the costs a condition to the setting aside of the judgment, say, and that the defendant do pay the costs of the said judgment and of this application. The payment of costs is invariably made a term of the order (see per Brett, L. J., 37 L. T. 777). As to when the defendant will be ordered to bring the amount of the judgment into Court or find security, see Watt v. Barnett, 3 Q. B. D. 183; affirmed, Id. 363. If execution has been issued, the Master may make it a condition of his granting the order, that the defendant be restrained from bringing any action against the plaintiff in respect of the said execution.] 20. Order thereon when Judgment irregular. [Formal parts as usual.] It is ordered that the judgment signed [and execution issued] herein by the plaintiff be set aside with costs for irregularity, on the grounds that [here set out the grounds of the irregularity], and that the plaintiff do pay to the defendant the costs of and occasioned by this application, to be taxed [or say, be set aside with costs, to be taxed and paid by the plaintiff to the defendant, on the ground, &c.]. (m) See note (1), supra. CHAPTER V. PROCEEDINGS FOR JUDGMENT UNDER ORD. XIV. ON SPECIALLY 1. Affidavit in support of Application (usual Form) (a). In the High Court of Justice. King's Bench Division. Between A. B... C. D.... ..Defendant. No. I, A. B. [of ], the above-named plaintiff, make oath and say as follows: : 1. The defendant C. D. is justly and truly indebted to me in the sum (a) Application for Judgment under Ord. XIV.]—By Ord. XIV., r. 1 (a), “Where the defendant appears to a writ of summons specially indorsed under Ord. III., r. 6, the plaintiff may, on affidavit made by himself, or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any), and stating that in his belief there is no defence to the action, apply to a Judge for liberty to enter final judgment for the amount so indorsed, together with interest, if any, or for recovery of the land (with or without rent or mesne profits), as the case may be, and costs. The Judge may thereupon, unless the defendant by affidavit, by his own rira voce evidence, or otherwise, shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly.” By r. 1 (b), "If on the hearing of any application under this Rule it shall appear that any claim which could not have been specially indorsed under Ord. III., r. 6, has been included in the indorsement on the writ, the Judge may, if he shall think fit, forthwith amend the indorsement by striking out such claim, or may deal with the claim specially indorsed as if no other claim had been included in the indorsement, and allow the action to proceed as respects the residue of the claim." Ord. III., r. 6, and the forms of special indorsement here referred to, will be found ante, p. 44. Appeals.]-Either party may appeal from the Master's order to the Judge in Chambers. If the Judge gives unconditional leave to defend, no appeal lies (Judicature Act, 1894, s. 1 (3)). If he refuses unconditional leave to defend, an appeal lies to the Court of Appeal (Id. s. 1 (4)) without leave (Id. s. 1 (2)). Actions on Bills of Exchange.]—Where it is necessary to prove notice of dishonour, or facts excusing it, the indorsement ought to state that notice was given, or such facts (Fruhauf v. Grosvenor, 67 L. T. 350); but the omission of such statement can be supplied by amendment (Roberts v. Plant, [1895] 1 Q. B. 597); and an allegation in the affidavit that notice was given has been considered unnecessary (May v. Chidley, [1894] 1 Q. B, 451; but see Roberts v. Plant, supra). A claim in the indorsement for "bank charges" has been held a good claim for expenses of noting (Dando v. Boden, [1893] 1 Q. B. 318). Interest at an ordinary rate on the bill from time of presentment for payment, or maturity, until judgment, and expenses of noting, and protest, if necessary, and in cases |