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of contract, express or implied, or for a tort or wrong. indorsement in such cases is, or indeed could properly be, required; for until the damages sustained by the plaintiff are assessed, the amount to which he is entitled, whatever his own notion on the subject may be, is unascertained; although the rules of law, according to which they are to be ascertained, have been fixed by a long train of judicial decisions. Thus, where the plaintiff's claim is for damages for breach of a contract to employ the plaintiff as a traveller, or for wrongful dismissal from the plaintiff's employment as manager, no court or jury can have much difficulty in assessing the damages. Where, however, the plaintiff's claim is for damages for assault and false imprisonment of the plaintiff, or for a libel, the damages may, according to the circumstances, be one farthing or hundreds of pounds.'

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'Neither, obviously, can any information beyond the mere indorsement of claim be required where the plaintiff's claim is for dower, or in an action brought by the plaintiff, either to recover possession of a house, No. Street, or a farm called Bludeacre in the parish of , in the county of or to establish his title to a farm, &c. With this suit, which is in the nature of an action of ejectment, may be combined claims for mesne profits, and for arrears of rent and for breach of a covenant to repair; every one of which demands must, until a comparatively recent period, have formed the subject of a separate action.'

'In certain cases, again, a further indorsement may be necessary; in those actions, namely, in which it is sought either to prevent a repetition of the injury of which the plaintiff complains, or to compel something to be done which the defendant is bound but refuses to do. In the former class the plaintiff will seek an injunction, and in the latter a mandamus, by adding in either case to his indorsement a claim to that effect.'

"The indorsements of claim applicable to actions brought in the Chancery division of the High Court,-to which are assigned, as we have already seen, all matters which have hitherto been within the cognizance of the Court of Chancery,-are also supplied by law. Thus, instead of a bill in equity, ex. gra., by a creditor to administer an estate, the writ is indorsed, The plaintiff's claim is as creditor of deceased, to have the personal estate

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e The Judicature Act, 1875, App. A.,

section iv.

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The Judicature Act, 1875, App. A.,

part ii.

The defendant C. D. is sued as the -or, by a mortgagee, to have

of the said administered. administrator of the said an account taken and the mortgage foreclosed, The plaintiff's claim is to have an account taken of what is due to him for principal, interest, and costs, on a mortgage dated the

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made between and and that the mortgage may enforced by foreclosure and sale;-or, by a partner, for a dissolution, The plaintiff's claim is to have an account taken of the partnership dealings between the plaintiff and defendant; and to have the affairs of the partnership wound up. Other forms are provided, upon the model of which the indorsement of claim may in different cases be framed.'

And so in two of the special subjects of litigation, assigned to the Probate, Divorce, and Admiralty division of the High Court. For the procedure in divorce and matrimonial causes remains as it has been since the court was created; the first step being not by writ, but by petition," in which the plaintiff sets out categorically the facts on which he seeks the intervention of the court, and which is served in the same way as a writ. In other branches of jurisdiction the plaintiff begins by writ; which is to be indorsed like all others, according to the nature of the case, with a concise statement of what is sought by the action. Thus, where an executor propounds a will in solemn form," he claims to be the executor of the last will, dated the day of , of

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C. W. late of gentleman, deceased; and to have the said will established. This writ is directed against you as one of the next of kin of the said deceased;-so where the consignee of a cargo seeks redress for injury sustained by it, The plaintiff as owner of goods laden on board the vessel "Mary," on a voyage from Lisbon, claims from the owner of the said vessel 100l., for damage done to the said goods during the said voyage; both of which indorsements are obviously amply sufficient to inform the defendant of what is demanded of him in the action.'

"Thus much, then, of the indorsement of claim; which, as we

To the averments of this petition the defendant makes answer, admitting or denying each allegation, as the marriage, adultery, cruelty, desertion, or whatever other matter may be alleged as the foundation of the suit. The plaintiff in his replication usually joins issue on some matter of fact alleged; but either

party may question the sufficiency of an allegation on demurrer; so that an issue of fact or in law is obtained, on the determination of which the judgment follows.

h Proving a will in common form is not a litigious proceeding.

shall see afterwards, may be treated by the defendant as a complete statement of the plaintiff's cause of action against him. One other indorsement which must appear on every writ of summons remains to be mentioned, viz., the address of the plaintiff, and the name and address of the solicitor by whom it is sued out, if a solicitor, as is usually the case, be employed; and this address must, when proceedings are taken in London, be within three miles of Temple Bar. The object of this indorsement is to have a fixed place for the interchange of legal notices, summonses, and judges' orders; and also that it may appear to the court who is responsible for any abuse of its process.'

"Thus much of the writ of summons,-where the defendant is within the jurisdiction of the High Court. Where he resides abroad, not only must the time within which he is to be called on to appear, be such a period as will permit of his doing so; but the writ must also express, by an indorsement, that it is for service out of the jurisdiction. It cannot be issued in such a case except by leave of the court or of a judge, and the applicant must inform the court by affidavit where the defendant is to be found, whether he is a British subject or not, and the grounds upon which the application is made. The writ is allowed to issue when the whole or any part of the subject matter of the action is land, stock, or property within the jurisdiction, or any act, deed, or thing affecting such property; when any contract sought to be enforced, rescinded, or otherwise affected in the action, or for the breach whereof damages or other relief are or is demanded, was made within the jurisdiction; when there has been a breach within the jurisdiction of any contract wherever made; or when any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the jurisdiction. The order giving leave to issue the writ prescribes the time within which the defendant is to appear, which of course must depend on the place where the writ is to be served. This method of proceeding, the successive steps in which are intended to protect an absent defendant against an unfounded claim, has been substituted for the outlawry on mesne process, of which enough was said in a former chapter, and which, we may recollect, afforded the defendant no information whatever of the claim made upon him.'

VOL. III.

U

'Where the defendant not only resides beyond the jurisdiction of the court, but is a foreigner not owing obedience to our laws, service of the writ is effected by delivery to the defendant, not of a copy, but of a notice containing all the information given by a copy of the writ; and the procedure on the defendant's failure to appear is the same as that in the case of a British subject.'

'If the writ of summons cannot be served on the defendant within the twelve months allowed for so doing, it may be kept in force by being resealed; and in this way renewed from time to time until it can be served. For service effected after the expiration of twelve months from its date or last renewal is irregular, and may be disregarded altogether; although the defendant may cure the irregularity by appearing to the action if he chooses to do so. Concurrent writs may be issued where there are several defendants and despatch is required, or there is difficulty in finding a particular defendant.'

291

CHAPTER XXII.

'THE SERVICE OF THE WRIT, AND HEREIN OF JUDGMENT BY DEFAULT.'

'FROM what has been stated in the preceding chapter, it has, I trust, been made clear to the reader, that the writ of summons is a letter missive from the sovereign, notifying to the defendant that the plaintiff demands from the crown, as the fountain of justice, redress for some injury which he has received, and therefore commanding the defendant to appear in the sovereign's High Court of Justice, there to abide the determination of the judges, to whom the crown has delegated its whole judicial authority.'

'The defendant is made acquainted with the exact nature of the plaintiff's claim by the service of the writ, which is usually effected by the delivery to him of a copy, the original being shown at the same time, if it be required. And this service ought always, if practicable, to be personal, and to be made by some one who knows the defendant and can swear to his identity. For, as a general rule, there is no equivalent for personal service, except an undertaking by a solicitor to appear; which undertaking will, if necessary, be enforced by attachment, every solicitor being, as we have seen, an officer of the court, and subject to its direct control.'

"If, however, the defendant keeps out of the way, so that personal service cannot be effected, the plaintiff may, upon satisfying the court or a judge that he is unable to effect prompt personal service, obtain an order for substituted service, or for the substitution of such notice for service as may seem just. If it appears, for instance, that efforts have been made to effect service; and either that the writ has come to the defendant's knowledge, or that he wilfully evades service of it; authority may be obtained to proceed as if personal service had been effected.'

'If, however, the plaintiff has reason to suppose that the defendant will keep out of the way, another course is open to

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