do recover the damages sustained by him; and then proceeds to inform its conscience of the amount for which final judgment is to be given, by the issue of a writ of inquiry to assess the plaintiff's damages, the nature of which we shall see afterwards. Instead of a writ of inquiry, the amount may be ascertained in any way in which any question arising in an action may be tried. If, for instance, the plaintiff's claim is substantially a matter of calculation, the court may direct one of its officers to compute the amount due to him.

If no appearance be entered in an action for the recovery of land, or if an appearance be entered but the defence be limited to part only, the judgment may be entered that the person whose title is asserted in the writ shall recover possession of the land, or of that part thereof to which the defence does not apply; and where a claim for mesne profits, arrears of rent, or damages for breach of contract has been made, judgment may be entered for the land; and the plaintiff may then proceed to assess the damages under his other claims.'

In actions assigned to the Chancery division, in cases of probate, and in all other actions not otherwise specially provided for, if the defendant does not appear, the action proceeds as if he had appeared. In admiralty actions in rem, in which a sale of the property under arrest is sought, notice of sale must be advertised and the claim proved; and so in claims for possession of a vessel, notice of the proceedings must be given by advertisement, and the title be proved before the possession of the vessel can be decreed.'

6

Thus careful is the law, that, even in circumstances from which it may reasonably be inferred that there is no defence, an absent defendant shall not be prejudiced by any proceeding in our courts of justice.'

There is a peculiar and indeed exceptional procedure which

• This rule does not apply where the defendant is an infant or a person of unsound mind. In such cases the plaintiff must have a proper person assigned guardian ad litem, by whom he may appear and defend the action; which cannot be done unless it appears that the writ of summons was duly served, and that notice of the application to have a guardian assigned was, after the ex

piration of the time allowed for appearance, and at least six clear days before the day for hearing the application, served upon or left at the dwelling-house of the person under whose care the defendant was at the time of serving the writ; and where the defendant is an infant not residing with his father or guardian, served upon or left at the dwelling-house of the father or guardian.

to

may be adopted by the holder of an unpaid bill of exchange or promissory note, which I have reserved for consideration in this place, being closely connected with the subject of judgment by default. It was first given by the statute 18 & 19 Vict. c. 67; previous to which the remedy against the acceptor, maker, or indorser of an unpaid bill or note was precisely the same as that open to a plaintiff in any other action. He must have sued out a writ of summons, on which, in case of non-appearance, he obtained a judgment by default. But it was always open to the defendant appear and plead a variety of fictitious defences, the sole effect of which was to compel the plaintiff to proceed to trial, and thus create delay and expense. This practice became, indeed, so much a reproach to the administration of justice, that the legislature was compelled to place under restriction the right even of a defendant to appear to the action. For, under the provisions of the statute I have referred to, all actions on bills or notes, brought within six months after the same have become payable, may be commenced by a writ of summons in a special form, which, instead of commanding the defendant to enter an appearance, warns him that, unless within twelve days after service he obtains leave to appear, and do appear accordingly, the plaintiff may proceed to judgment and execution. And when served with this species of writ, a defendant must, if he has a defence, apply for and obtain leave to appear, without which he cannot do so; and unless he obtains such leave within the time allowed, judgment by default may be signed, and execution issued.'

'Leave to appear may, however, be obtained, as a matter of right, on the defendant paying into court the sum indorsed on the writ;—or upon affidavits which disclose a legal defence, as that the note was given to the plaintiff by way of accommodation and without value;-or an equitable defence, as that the bill was accepted by the defendant, as chairman of a company, and not on his own account;-or such facts as would make it incumbent on the holder of the instrument to prove that he gave value for it, as that it had been obtained from the defendant by fraud, or was tainted with illegality;-or such other facts as the judge may deem sufficient to make an inquiry by a jury desirable. But terms may also be imposed on the defendant, for instance, that he shall give security for the amount claimed.'

'Nor is the defendant foreclosed by a judge's refusal of leave to appear; for even after judgment by default the court will set it

aside, and permit a defence to the action, if special circumstances can be stated to justify their doing so; the object of the statute being not to shut out the defendant from taking the opinion of a jury on his case; but solely to prevent actions brought on these most important instruments of commerce from being defended on frivolous and vexatious grounds merely to obtain delay.'

Thus much for process, which in general is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When, having received full notice of the nature of the plaintiff's claim, the defendant does not appear to dispute it, he is considered to admit the justice of the demand; and the sovereign then, by his delegates the judges, sitting in his courts of justice, awards to the plaintiff that redress to which he is by law entitled, and which by his writ he has demanded. When the defendant does appear," it must be either in person or by a solicitor; and he must give particulars of his name and an address within three miles of Temple Bar much in the same way as a plaintiff is required to do in issuing a writ. He may appear at any time before judgment. If it be after the time limited for appearance, he must give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues in person; but he is not then, unless it be otherwise ordered, entitled to any further time for delivering his defence, or for any other purpose than if he had appeared according to the writ.'

In probate actions, and in admiralty causes in rem, a person not named in the writ may intervene, on filing an affidavit showing how he is interested, in the former class of cases, in the estate of the deceased; in the latter, in the res under arrest. And in an action, also, for the recovery of land, a person not named as a defendant may, by leave of the court or of a judge, appear, on filing an affidavit that he is in possession of the land either by himself or his tenant, just as in the old action of ejectment the landlord was admitted to defend. A landlord when admitted must state that he appears as landlord; and forthwith give notice thereof to

P'As a general rule appearance is entered in London. A defendant to a writ issued in a district registry, who resides or carries on business within the district, appears in the district registry. If he neither resides nor carries on business in the district, he may appear

either in the district registry or in London. So that, according as he appears in a district registry or in London, the action proceeds in the district registry or in London; but it may be removed from one to the other, or vice versá.'

the plaintiff's solicitor, or to the plaintiff if he sues in person. In all subsequent proceedings he is named as a defendant to the action.'

'Before leaving this subject, however, it ought to be mentioned that any order giving a defendant leave to appear will be rescinded when it is shown that the defence primâ facie disclosed has no existence," or that the leave itself has been fraudulently obtained. And, on the same principle, where the defendant appears on a writ of summons specially indorsed, the plaintiff may, on affidavit verifying the cause of action, and swearing that in his belief there is no defence to the action, call on him to show cause why the plaintiff should not be at liberty to sign final judgment for the amount so indorsed, together with interest, if any, and costs; and the court or judge to whom this application is made may, unless satisfied by affidavit or otherwise, that the defendant has a good defence to the action on the merits, or unless such facts are disclosed as appear sufficient to entitle the defendant to be permitted to defend the action, make an order empowering the plaintiff to sign judgment accordingly. This exceptional privilege is accorded to claims permitting of a special indorsement, because it has been found in practice that to the great majority of such claims no real defence can be offered,or, if set up, is made merely for the sake of delay. No defendant having a bona fide defence is damnified; for he may show cause against the plaintiff's application, either by offering to bring into court the sum indorsed on the writ; or by affidavit, a risk a defendant not making a valid objection is not likely to incur; as he may be ordered to attend and be examined upon oath; leave to defend, where given, being, if the court or judge think fit, unconditional, or subject to terms as to giving security, or otherwise, as may be ordered.'

'Both parties being thus before the court, next follow the pleadings between the parties, which we shall consider at large in the next chapter.'

a Agra Bank v. Leighton, 2 Law Rep. Ex. 56.

* Pollock v. Turncock, 1 II. & N. 741.

301

CHAPTER XXIII.

OF PLEADING.

'WHEN the defendant has appeared, both parties are theoretically in court; and the plaintiff ought now to inform the judges, what is his cause of action. This is usually ascertained from the' pleadings, which are the mutual altercations between the plaintiff and defendant; and which formerly were put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol. That practice gave way in time to the more convenient course of producing previously prepared written pleadings; which innovation was in its turn supplanted by the modern system, all the pleadings in an action being now simply interchanged between the solicitors," or parties if they appear in person; and only solemnly entered on the records of the court, when it becomes necessary to do so, as for the purpose of giving them in evidence.'

'There is a course open to the parties, however, which may render formal pleadings unnecessary. For as the object of all pleading is to eliminate and ascertain what is in issue between the litigants, whether they disagree upon a matter of fact or on a question of law, there is no reason, if they can ascertain this without pleadings, why these should be resorted to. And they are accordingly allowed to take the simplest mode of stating the question at issue for the decision of the proper tribunal." For if they differ on a matter of fact, the question may be sent for trial

It is for this reason that every solicitor is required to have an office, at which all pleadings, notices, and other proceedings may be left for, or served upon, him. For the same reason, one who defends in person must, on his appearance, give an address at which

all pleadings and other proceedings, not requiring personal service, may be left for him, otherwise the appearance will not be received. It will be set aside if the address given turn out to be fictitious.

b Common Law Procedure Act, 1852.