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474). As to recovering these expenses when the action is brought under the Summary Procedure on Bills of Exchange Act, see 24 & 25 Viet. c. 43, sect. 5, post, in the Appendix. And as to the cases in which the plaintiff may include interest in the amount for which he marks a final judgment, see note (v) infra.

The result of the authorities would, therefore, appear to be, that a final judgment by default can only be marked in those cases where the amount of the claim has been already ascertained, or agreed upon between the parties, or where the agreement or contract under which the claim arises is such that the ascertainment of the amount involves a mere arithmetical calculation, as, for instance, in the case of a sale of shop goods.

If the indorsement of particulars contains a single item not coming within the words of the section, a final judgment including the particular item will be irregular (Connolly v. Teeling, Rogers v. Hunt, ubi supra).

debt.

(t) The 92nd G. O.1854, requires, in addition, that, before any judgment Affidavit of by default shall be marked under this or the next section, an affidavit specifying the sum actually due shall be filed.

against an

infant.

(u) Although the section provides that error shall not lie upon any judg- Judgment ment marked as above, yet, if a judgment by default be marked against an infant, to whom no guardian has been appointed, the judgment would appear to be irregular (Jurman v. Lucas, 15 C. B. N. S. 474); and see M'Master v. M'Assey, 9 Ir. C. L. R. Ap. 12; Green v. Copland, Bl. D. & O. 110, sect. 122, post, and ante, p. 48, note (b).

Where a married woman sued as a feme sole, pleaded coverture, and no evidence being offered at the trial in support of the plea, a verdict was found against her, and she was afterwards arrested on a ca. sa., it was held that she was not entitled to her discharge (Poole v. Canning, L. R. 2 C. P. 241). (v) The interest contemplated by the present section, and for which a final judgment by default may be marked, is interest payable under a contract express or implied, and not interest which a jury might award as unliquidated damages; and if a plaintiff includes in the amount for which he marks a judgment, under the present section, a sum for interest to which he is not entitled by contract as above, the judgment will be set aside (Rodway v. Lucas, 1 Jur. N. S. 429, 311).

As a geueral rule, where the contract between the parties is silent as to interest, it cannot at common law be recovered either as debt or damages; and it is no ground of exception to this rule that the instrument is in writing (Page v. Newman, 9 B. & C. 378), or that a day is fixed for payment (Gordon v. Swan, 12 East, 419), or that the contract is under seal, see Hig gins v. Sargent, 2 B. & C. 348, 351. An agreement to pay interest will, however, be implied in the case of a bill of exchange or promissory note, or other negotiable instrument, from the time at which it becomes due. Interest may also become payable according to the course of dealing between the parties (Bruce v. Hunter, 3 Camp. 467). And see further as to when interest may be recovered, Leake on Contracts, p. 584.

By 3 & 4 Vict. c. 105, sect. 53, it is enacted, "that upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise than from the time when demand of payment shall

When a final judgment by default may include in

terest.

Costs of final

judgment.

Setting

ment.

vit should

state.

By whom to made.

have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment; provided that interest shall be payable in all cases in which it is now payable by law; and provided also that such interest so to be allowed by such jury shall not be allowed for any period exceeding six years." And by sect. 54 of the same Act, it is provided that the jury may give damages in the nature of interest in actions of trover or trespass to goods, or in actions upon policies of assurance.

Where a party is entitled to interest under this enactment he cannot mark a final judgment by default for it (Rodway v. Lucas, ubi supra). In cases where a party is entitled to interest upon the sum recovered under a contract, express or implied, the plaint need not, it would seem, include a count for interest; it will be sufficient if prayed for by the prayer for judgment (Walkington v. Greer, 8 Ir. Jur. N. S. 239).

(w) The sum for costs pursuant to the section has been fixed by the G. Os. of Feb. I and Feb. 3, 1854, which see, post.

In

(x) When a judgment has been regularly marked, the Court may, notaside a judg- withstanding, in the exercise of its discretion set it aside upon terms. order to induce the Court to do so, however, it is necessary that the defendant should make an affidavit of merits, and some explanation should moreWhat affida over be given as to why he neglected to plead. The affidavit should in general disclose merits, and it is not sufficient to swear to them generally, as in a common affidavit of merits (Whiley v. Whiley, 4 C. B. N. S. 653), although there are cases in which the common affidavit has been held to be sufficient (Murphy v. Nugent, 6 Ir. Jur. O. S. 280; Warrington v. Leake, II Ex. 304). The affidavit should be made either by the defendant himself, or by some person who has such a connexion with the cause as acquaints him with its merits, and this must appear upon the face of the affidavit (Daniel v. Dalton, Hay & Jon. 346; Jones v. Mills, 1 Law Rec. N. S. 46; Rowbottom v. Dupree, 5 Dowl. 557). The judgment, moreover, will generally be set aside only on the terms of the defendant paying the costs of the application (see, however, Reddy v. Dalton, 10 Ir. Jur. N. S. 398), pleading forthwith, and taking short notice of trial if necessary; and if a trial has been lost, the defendant may be ordered to bring the amount of the judgment into Court.

Terms.

Where judg

On the other hand, when the judgment has been marked irregularly or ment irregu malâ fide, and the application to set it aside is made within a reasonable larly marked. time, no affidavit of merits is in general necessary (Lenehan v. Earl of Bantry, 4 Ir. L. R. 274; Martin v. Williams, Ir. R. 3 C. L. 5). A judgment will of course be set aside if the service of the summons and plaint was defective, ante, p. 27. And see further as to setting aside a judgment on the grounds of irregularity, Ch. Ar. Pr. 12th Ed. p. 986, and as to setting aside a judgment marked against an infant supra, note (v). A judgment marked while the proceedings are stayed is of course irregular, and will be set aside. The service of a notice of motion by the defendant does not as a general rule operate as a stay of proceedings. According to the practice in England, however, if a summons be taken out, and it be part of the application that further proceedings be stayed, or the application relates to the time or mode of taking the next step, as for instance an application to strike out a count, the summons, provided it be bond fide taken out (Bebb v. Wales, 5 Dowl. 458), operates as a stay, Ch. Ar. Pr. 12th Ed. p. 1601. In such cases,

While proceedings staved. Pending a notice of motion.

however, the summons operates as a stay from the time at which it is attendable, and not from the time at which it was taken out (Morris v. Hunt, 2 B. & Ald. 355; Redford v. Eudie, 6 Taunt. 240). And see Carroll v. Kennedy, 2 Ir. Jur. N. S. 7. The 64th section of the present Act provides, it will be seen, that neither a demand, notice of motion, or even the order of the Court for the production, &c., of documents shall operate as a stay of proceedings, unless a special order shall be made by a Judge to that effect. By the 54th G. O. 1854, (which see) it is also provided that the service of any notice relative to the giving security for costs shall not operate as a stay of proceedings.

If, however, a judgment be marked pending a notice of motion upon which the defendant afterwards succeeds, the judgment will be set aside (Carroll v. Kennedy, ubi supra; Stewart v. Ballance, 10 Ir. C. L. R. Ap. 1).

defendants take defence. c. 76, s. 3.

some of the

15 & 16 Vict.

97. In any action brought against two or more defendants, Where only where the claim is for a debt or liquidated demand in money, with or without interest, as last aforesaid, if one or more of such defendants only shall appear to defend or demur, and another or others of them shall not appear to defend or demur, it shall be lawful for the plaintiff to sign judgment against such defendant or defendants only as shall not have appeared to defend or demur, and before issue joined against the other defendant or defendants to issue execution thereupon, in which case he shall be taken to have abandoned his action against the defendant or defendants who shall have defended or demurred; or the plaintiff may, before issuing such execution, proceed against such defendant or defendants as shall have filed a defence or demurrer, stating, by way of suggestion, the judgment obtained against the other defendant or defendants who shall not have filed a defence or demurrer, in which case the judgment so obtained against the defendant or defendants who shall not have taken defence or demurred shall operate and take effect in like manner as a judgment by default obtained before the commencement of this Act against one or more of several defendants in an action of debt before the commencement of this Act (y).

default against one of

(y) A judgment by default against one of two defendants in an action ex Judgment by contractu is, independent of the provisions of the present section, interlocutory only, and a defence by the other defendant enures for the benefit of the de- several defendant so suffering judgment by default. In case, therefore, the defendant fendants. who pleads succeeds in his defence, the judgment by default goes for nothing (Morgan v. Edwards, 6 Taunt. 398). The jury, moreover, who try the issue in fact raised by the defence must assess the damages as against all the defendants, and therefore when in such a case no notice of trial was served upon the defendant who suffered judgment by default, it was held after verdict for the plaintiff that the proceedings were irregular (Thompson v. Shanley, 4 Ir. C. L. R. 617). Where several parties were sued as partners, and but one took defence, the others suffering judgment to go by default, service

Inquiry of damages before the

Master where

the claim is matter of calculation.

15 & 16 Vict.

c. 76, s. 94.

of notice of trial and assessment of damages upon one of the defaulting parties was held to be good service on the others (Seymour v. Donnelly, 2 Ir. Jur. N. S. 186).

98. In default of such defence or demurrer filed as aforesaid, and in case of judgment for the plaintiff on demurrer, where the plaintiff's claim is not for a debt or liquidated demand in money, but it shall appear to the Court or a Judge that the amount of damages sought to be recovered by the plaintiff, although not liquidated in its nature, is substantially a matter of calculation (2), it shall not be necessary to issue a writ of inquiry, but the Court or a Judge may direct (a) that the amount for which final judgment is to be signed shall be ascertained by the Master of the Court (b) on affidavit or by oral evidence and the attendance of witnesses; and the production of documents before such Master may be compelled by subpoena, in the same manner as before a jury upon a writ of inquiry; and it shall be lawful for such Master to adjourn the inquiry from time to time as occasion may require: provided always, that in case the said Master upon any such reference shall think it proper to have any fact controverted on the reference tried by a jury, in such case the said Master may sign a requisition to that effect, entitled in the cause, and direct the same to be delivered to the Sheriff of the County of the City of Dublin two days before the time when such jury shall be required, and the jurors shall be summoned and taken from the list of persons liable to serve as jurors in the County of the City of Dublin, and the Sheriff shall cause so many of the jurors as in his opinion he shall deem sufficient to be summoned, but not less than six, and such persons shall attend, and either party shall be entitled to his lawful challenge against all or any of the said jurors, and a jury consisting of not less than three, shall be returned to try such fact or facts as shall seem doubtful to such Master, who shall proceed to make his report on the verdict of such jury as he shall see fit, and such jury shall be sworn and paid as a common jury at Nisi Prius; and the Master shall endorse upon the rule or order for referring the amount of damages to him the amount found by him, and shall deliver the rule or order, with such endorsement, to the plaintiff, and such and the like proceedings may thereupon be had as to taxation of costs, signing judgment, and staying the signing

thereof, and otherwise, as upon the finding of a jury upon a

writ of inquiry.

(z) The question of what is "substantially a matter of calculation" is one Matter of depending on the circumstances of each particular case, and no precise rule calculation.

can be laid down as to what cases are and what are not within the section. The English Common Law Commissioners, on whose recommendation the corresponding section in the 15th & 16th Vict. c. 76, was introduced, seem to have considered that the damages in an action for non-repair would be substantially a matter of calculation. In Cummins v. Birkett, 3 H. & N. 156, an action having been brought by a succeeding rector against his predecessor to recover damages for dilapidations to the rectory house, the matter in dispute was held to be a matter of "mere account" within the meaning of sect. 3 of the English Common Law Procedure Act, 1854. The amount due for costs under a contract to pay costs is a "matter of calculation" which may be referred to the Master to inquire (National Assurance Co. v. Best, 27 L. J. Ex. 19) and see Shortal v. Farrell, Ir. R. 3 C. L. 506, for the practice in the different courts, as to ascertaining the amount for which judgment is to be marked when an action is brought to recover the amount of a bill of costs; and reference may also be had to section 6 of the Common Law Procedure Act, 1856, as to what is a matter of "mere account" within the meaning of that section.

(a) By the Common Law Procedure Act, 1856, s. 99, it is no longer necessary to obtain an order from the court directing the Master to ascertain in the cases provided for above, the amount of final judgment, and the Master is to ascertain the amount without any such direction. Though there are several defendants and several interlocutory judgments there can be but one reference (Field v. Pooley, 3 M. & G. 756), and see note (y), supra.

Master to

ascertain the amount without an order of the Court,

Where sevetory judg

ral interlocu

ments.

(b) Upon a compulsory reference to the Master, under section 3 of the Employing a English Common Law Procedure Act, 1854, of an action upon a building surveyor, &c. contract, it was held that, although the Master cannot delegate his authority, yet it is competent to him to inform his mind as to the amount and value of the work done by sending a surveyor in whom he can confide to view and report to him (Gray v. Wilson, L. R. 1 C. P. 50). The Master should not however preclude the parties from calling their witnesses if so minded.

The course of procedure upon a reference to the Master is provided for by Procedure the General Orders of 1854, 159-172, which see.

99. It shall be the duty of the Master of the Court, before he permits any such judgment by default to be marked, to see that a proper affidavit of the service of the writ of summons and plaint has been filed, and that according to such affidavit service of such writ has been effected in the manner prescribed by this Act, or in the manner substituted by the order of the Court or a Judge as aforesaid (c).

(e) As to what the affidavit of service should state, see ante, p. 34. 100. In default of such defence or demurrer, and in case of judgment for the plaintiff on demurrer, when the plaintiff's

before master.

Master shall affidavits of service.

examine the

Ordinary inquiry in

writ of

other cases.

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