against B., agreed with C. to forbear to sue out execution on the judgment until a certain day, in consideration of which C. agreed that he would on or before that day erect a substantial house, and cause a lease of it to be granted to A.; such lease when granted to be in satisfaction of the judgment; in an action for the breach of the agreement, the value of the house would be the measure of damages, and such value would be properly estimated as the amount of the judgment debt. (Strutt v. Farlar, 16 M. & W. 249.) We feel some diffidence in thus expressing an opinion on the probable construction of these words, because we cannot concur in the wide interpretation given by the learned commissioners in their report, in which they select as an illustration" an action for damages for nonrepair of a house" and the like. If, indeed, the value of the repairs omitted to be done had been fixed by the parties, this might fall within the section, but if by it was intended the ordinary case of a dispute upon a contract to repair, where the repairs have been executed, and the question at issue is their conformity to the specification, there the amount to be recovered could not be called matter of calculation. There could be no fixed data; the inference as to the damage must be arrived at from a comparison of the conflicting opinions and statements of various surveyors; and the skill and knowledge, and means of observation, of the witnesses, as well as their credibility, would be material elements of consideration in forming a conclusion. If such a case could be considered as one " substantially of calculation," we do not see how any actions could be excluded, provided they were not brought in respect of matters of a personal nature, in which vindictive damages might be given. Or the meaning of this section might be arrived at in another way. If the case were such that, upon the evidence given, a jury would have no discretion to exercise as to the amount, and the court would interfere if the verdict were returned for a greater or less amount, then the damages sought would be substantially matter of calculation. The inference could not be otherwise than certain as soon as the facts were proved. The jury would only have to be satisfied of the premises, and then the result would be defined and clear. The section is silent as to the mode of obtaining the order, but the practice under the Writ of Trial Act, and upon writs of inquiry, may furnish analogies. The reference must be against all the defendants who have suffered judgment by default (Field v. Pooley, 3 M. & G. 756), and it is not probable that it would, even if it could, be adopted, where some only had suffered judgment by default. It is probable that the order will be obtained upon a summons, a copy of which would be served upon the opposite attorney in the ordinary way. Notice of the proceedings before the master ought certainly to be given, for it is a quasi judicial inquiry, and it would be contrary to fundamental principles

that such an inquiry should be ex parte. If the defendant has been sued under the 18th or 19th sections, the nature of the notice, both of the order to obtain the reference, and of the inquiry itself, will be a matter for the discretion of the judge. Upon a writ of inquiry, where the defendant had not appeared, but an appearance sec. stat. had been entered for him, it was considered sufficient for the notice of executing the writ of inquiry to be served at the last place of abode of the defendant, and by sticking it up in the master's office. (Watson v. Delcroix, 2 Dowl. 396; Probin v. Locock, 2 Dowl. N. S. 197.) The attendance of witnesses and the production of documents will be enforced in the usual way by subpoena, and sects. 117-120, to facilitate the admission of documentary evidence, will apply, but as they differ from the Reg. Gen. H. T. 4 Will. 4, r. 20, (which was considered to apply to writs of inquiry,) by the omission of the words "or presiding officer," the certificate as to refusal could not be given. (See, Signing however, note to these sections, infra.) Such and the like judgment. proceedings are to be had after the rule or order, indorsed with the master's finding, has been delivered to the plaintiff, as upon the finding of a jury upon a writ of inquiry, and it is therefore presumed that the delivery to the plaintiff will be considered equivalent to the return day of the writ, and if so, a judgment cannot be signed until the expiration of four days. (See Reg. Gen. H. T. 2 Will. 4, r. 67. See Governors of the Poor of Exeter v. Sivell, 7 Dowl. 624.) And this delay would be reasonable, to give an opportunity to either party to move to set aside the finding of the master, for it can hardly be intended that his decisions as to evidence, &c. are to be final. In vacation the defendant must apply to a judge to stay the judgment until he has had an opportunity of moving the court.

Whether, upon writ of inquiry, reference to the master or otherwise, the final judgment will be entered for the sum recovered, without any distinction between debt or damages, see sect. 95, infra, "Judgment."

It is to be noted, that a writ of inquiry will still be requisite in all cases under the 8 & 9 Will. 3, c. 11, for by section

96. "Nothing in this act contained shall in any way Assignment affect the provisions of a certain act of parliament passed of breaches. in the session of parliament holden in the eighth and ninth years of the reign of his majesty King William the Third, intituled 'An Act for the better preventing frivolous and vexatious Suits,' as to the assignment or suggestion of breaches, or as to judgment for a penalty as a security for damages in respect of further breaches."

See as to the mode of proceeding, Chitty's Archb. ii. 901 et seq. By sect. 132, however, a scire facias upon further breaches,

after the first inquisition or trial, would be within the operation of this act, and the proceedings would be in like manner as a writ of revivor.

VII. REPLICATION AND SUBSEQUENT PLEADINGS.

There being no enactments as to the time and mode of delivering the replication, the present practice will prevail. There is no time limited for replying, rejoining, &c., subject to the exception that a term's notice of proceeding is necessary where more than four terms have elapsed since the last proceeding. Formerly judgment of non pros. for want of a replication could not have been signed until four days next after a demand thereof (R. G. T. 1 Will. IV. r. 4), and a rule to reply was also requisite; but by H. T. 2 Will. IV. r. 1, s. 54, "service of a rule to reply was to be deemed a sufficient demand of replication;" and as now, by sect. 53, "rules to reply shall not be necessary, and instead thereof a notice shall be substituted requiring the opposite party" to reply within four days, otherwise judgment, it is presumed that no other demand than this notice will be required. Such notice may be delivered separately or indorsed on the plea. Of course the plaintiff may obtain further time to reply by application to a judge; but if he do not reply within the four days, or such further time as may be given, the defendant may sign judgment of non pros. if no replication has been previously delivered. The notice may be as follows, when indorsed on the plea:

"The defendant requires the plaintiff to reply hereto within four days, otherwise judgment.

E. F., attorney [or agent]."

Or if delivered separately it may be thus: "In the Q. B. [or C. P., or Exch. of Pleas].

A. B. v. C. D.

The defendant demands a replication in this cause within four days, otherwise judgment.

To G. H.,

Yours, &c.

E. F., defendant's attorney [or agent].
Dated

Plaintiff's attorney [or agent]."

If the time for replying expires before the 10th of August, the defendant can sign judgment of non pros. between that day and the 24th of October, but not if it expires on the 10th of August. (Morris v. Hancock, 1 Dowl. N. S. 320; Severin v. Leicester, 12 Q. B. 949; 18 L. J. 13, Q. B.) As already noticed (supra, 38), the Easter holidays are not reckoned in the time for replying.

As to the form, however, it may be observed that it must Form. be intituled of the proper court and of the day of the month when it was pleaded, and must not bear any other time or date (sect. 54); and that no allegation of precludi non, or to the like effect, nor any prayer of judgment (sect. 66), nor any formal conclusion, is necessary (sect. 67). The plaintiff may, if he pleases, demur to the pleas or any of them (see infra), or by leave of the court or a judge demur and plead under the provisions of sect. 80 (infra, 90); or under sect. 81 (supra, 61) he may, by leave of the court or a judge, plead as many several matters as he shall think necessary to sustain his action, upon the affidavit there specified, if required, being made by himself or his attorney. All objections to such several replications, that they are founded on the same ground of answer or defence, will be heard upon the summons for leave to reply double (sect. 83, supra, 61). No signature of counsel will be requisite to any replication (sect. 85.) The replication should comply with the general requirements of good pleading (see infra, 81); but there are two clauses as to its forn, which are most important.

77. "A plaintiff shall be at liberty to traverse the General whole of any plea or subsequent pleading of the defend- replication. ant by a general denial, or, admitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations."

issue.

79. "Either party may plead, in answer to the plea Joinder of or subsequent pleading of his adversary, that he joins issue thereon, which joinder of issue may be as follows, or to the like effect:

The plaintiff joins issue upon the defendant's 1st [&c., specifying what or what part] plea:'

'The defendant joins issue upon the plaintiff's replication to the 1st [&c., specifying what] plea ;'

and such form of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading, and an issue thereon; and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the plaintiff may add a joinder of issue for the defendant."

Independently of this last provision, by H. T. 2 Will. IV. r. 108, no rule to rejoin is necessary where the defendant cannot be let in on his rejoinder to allege new matter. (See infra, 80.) It is not clear from this section whether, when this form of joining issue is used, the pleadings are to be deemed complete, or whether some words, such as "and the defendant doth the like" ought not to be added. The term “joinder of issue” seems to imply that the issue is complete,

Rejoinder.

and yet the last part of the section says, that in all cases where the plaintiff's pleading is a denial of the pleading of the defendant-which the general form certainly is-that the plaintiff may add a joinder of issue for the defendant. We are inclined to think, however, that it will be construed that the general form is sufficient of itself, but that if there is a denial by the plaintiff of one or more facts, the conclusion will be, "and the defendant joins issue upon the plaintiff's replication to the 1st plea," as a substitute for the old conclusion, "and this the plaintiff prays may be inquired of by the country (now unnecessary, sect. 67, supra, 59), and the defendant doth the like." As to the mode of pleading in denial, see infra, “Pleading," and sects. 77, 78. It will be observed that the defendant could not formerly have added the similiter for the plaintiff, and the joinder in issue under this section applies only to the subsequent pleadings. If the plaintiff was ruled to reply, he must have actually delivered his replication, although concluding to the country or merely the similiter, and this will be necessary after the demand of replication. It has already been noticed that a serious question arises upon these sections as to the necessity of leave to traverse in this general form, so as to enable the judge to restrict the power of traversing more allegations than one; and the practical result of a decision, that no leave is necessary, will probably be that the plaintiff will at once join issue in the great majority of cases, for it will be the same in effect as if de injuriâ had been permissible in all cases. As the joinder of issue may be in the above form, or "to the like effect," and in each case the substance of the pleas only put in issue thereby, it is presumed that the courts will hold that any general denial under the 77th section would fall within the scope of the 79th, so as only to put in issue the substance of the pleading. In this respect, therefore, it will have precisely the same effect as de injuria, which put in issue only the material averments in the plea. A difficulty may arise under the power of thus traversing generally, where the plea sets out a record, as it would include two modes of trial. New assignments will be noticed separately, under the same title.

The plaintiff must give the defendant notice to rejoin, under sect. 53 (in lieu of the old rule to rejoin), if he wishes to compel him to do so, but if the terms "rejoining gratis," under which the defendant was usually put, on obtaining further time to plead, meant without a rule to rejoin (Atkins v. Anderson, 10 M. & W. 12); so it is presumed that in such case no notice will be necessary under the above section. And by H. T. 2 Will. IV. r. 108, in all special pleadings where the plaintiff takes issue on the defendant's pleadings, or traverses the same, or demurs, so that the defendant is not let in to allege any new matter, the plaintiff may proceed without giving a rule to rejoin. The omission to rejoin,