CHAPTER IV.

SPECIAL INDORSEMENTS.

General Form of a Statement of Claim specially Indorsed on the Writ of Summons under O. III. r. 6, in an Action for a Debt or Liquidated Demand (a).

(See R. S. C., 1883, App. A., Part I., No. 2, and the Forms given in App. C., Sect. IV.)

Statement of Claim.

The plaintiff's claim is, &c. [here state the ground of claim in a summary form, and so as to show that the claim is for a debt or liquidated demand in money, within the terms of O. III. r. 6].

Particulars:

[Here give particulars of the claim, unless the particulars are sufficiently shown by the statement of the cause of action. Dates and items must be given if necessary. If the particulars exceed three folios, that fact must be stated, and reference must be made to full particulars already delivered, or to be delivered with the statement of claim: see the next form.] Place of trial [see the form at p. 42].

(Signed) G. H.

[See the form at p. 42.] [It is not necessary to insert the date of the service or to state the fact of delivery: see note (a), infra, p. 79.]

(a) Special indorsement of statement of claim on the writ.]—By O. III. r. 6, “In all actions where the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising (A.) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or (B.) on a bond or contract under seal for payment of a liquidated amount of money; or (C.) on a statute where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (D.) on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (E.) on a trust; or (F.) in actions for the recovery of land, with or without a claim for rent or mesne profits, by a landlord against a

tenant whose term has expired or has been duly determined by notice to quit, or against persons claiming under such tenant; the writ of summons may, at the option of the plaintiff, be specially indorsed with a statement of his claim, or of the remedy or relief to which he claims to be entitled. Such special indorsement shall be to the effect of such of the Forms in Appendix C., Sect. IV., as shall be applicable to the case."

If the defendant does not appear to a writ which is indorsed for a liquidated demand, whether specially or otherwise, the plaintiff may enter final judgment for any sum not exceeding the sum indorsed, together with interest at the rate specified (if any), or, if no rate be specified, at the rate of five per cent. per annum to the date of the judgment, and costs. (O. XIII. r. 3.)

Where no appearance is entered in an action for the recovery of land, the plaintiff may enter judgment for possession. (0. XIII. r. 8.)

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By O. XIV. r. 1, (a) Where the defendant appears to a writ of summons specially indorsed under O. 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 viva 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.

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(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 O. 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."

The principal object of indorsing a writ specially with a statement of claim under Ò. III. r. 6, above cited, is to enable the plaintiff to apply for judgment under this provision. The application may be made even after delivery of a defence, but where the application has been delayed, it lies upon the plaintiff to justify the delay. (McLardy v. Slateum, 24 Q. B. D. 504; 59 L. J. Q. B. 154.)

The claim thus specially indorsed upon the writ is deemed to be the statement of claim in the action (O. XX. r. 1 (a), cited ante, p. 44), and no further statement of claim can be required by the defendant, and none can be delivered by the plaintiff without leave (G. v. H., W. N. 1883, p. 233), unless by way of an amendment under O. XXVIII. r. 2, cited ante, p. 14 (see Roberts v. Plant, (1895) 1 Q. B. 597; 64 L. J. Q. B. 347). The service of the writ thus indorsed operates both as service of the writ and as delivery of the statement of claim indorsed thereon. (Veale v. Automatic Boiler Co., 18 Q. B. D. 631; Anlaby v. Prætorius, 20 Q. B. D. 764; 57 L. J. Q. B. 287.) It may be served at any hour of the day, like an ordinary writ of summons, as also during the Long Vacation, as O. LXIV. rr. 4, 11 (cited ante, pp. 18, 17), has no application to writs thus specially indorsed (Murray v. Stephenson, 19 Q. B. D. 60).

The statement of claim thus indorsed must be to the effect of such (if any) of the forms given in App. C., Sect. IV., as is applicable to the case

of

(see O. III. r. 6, above cited), and if none of those forms is applicable, must be expressed in a form of the like character, as near as may be (see O. III. r. 6, and O. XIX. r. 5, cited ante, p. 7), but it should not be marked with the memorandum, 66 Delivered the 18-," as that requirement of O. XIX. r. 11, does not apply to it (see R. S. C. 1883, App. A., Part I., No. 2; Veale v. Automatic Boiler Co., 18 Q. B. D. 631). It should name the place of trial if other than Middlesex, and should be signed in the ordinary manner. (O. II. r. 3; 0. XIX. r. 4; 0. XXXVI. r. 1.)

In order to constitute a sufficient special indorsement under O. III. r. 6, above cited, the claim must be stated with sufficient particulars to bring to the notice of the defendant what the claim is, so that he may be able to decide how far to admit or resist the demand. (Bickers v. Speight, 22 Q. B. D. 7; 58 L. J. Q. B. 42; see Walker v. Hicks, 3 Q. B. D. 8; 47 L. J. Q. B. 27; Smith v. Wilson, 5 C. P. D. 25; 49 L. J. C. P. 96; Aston v. Hurwitz, 41 L. T. 521.)

A specially indorsed statement of claim, containing such particulars as would have constituted a sufficient special indorsement under the C. L. P. Act, 1852, s. 25 (now repealed), will in general be sufficient under the present rules. (Bickers v. Speight, 22 Q. B. D. 7; 58 L. J. Q. B. 42; and see the cases last cited, and Grant v. Easton, 13 Q. B. D. 302; 53 L. J. Q. B. 68.)

If the indorsed statement of claim does not state sufficient particulars of the demand, the defendant may apply to have it amended or supplemented by further particulars.

If the particulars of the debt sued for exceed three folios, the indorsed statement of claim may refer to an account already delivered. (See O. XIX. r. 6; R. S. C. 1883, App. C., Sect. IV., No. 1; Aston v. Hurwitz, 41 L. T. 521.)

If the indorsed statement of claim is insufficient in point of law, that, in the absence of amendment, would be a sufficient answer to an application for leave to enter judgment under O. XIV. r. 1.

The mode of objecting to a special indorsement on the ground that it is insufficient in law should vary according to the nature of the insufficiency. It would seem that where the objection is a matter of substance which deserves to be seriously argued, it would be proper to plead the objection in the defence as an objection in point of law under O. XXV. r. 4 (cited post, p. 601). It was held under the repealed rules that an objection on the ground that a special indorsement was bad in law could not properly be taken by demurrer (Faucus v. Charlton, 10 Q. B. D. 516; 52 L. J. Q. B. 710; though see Robertson v. Howard, 3 C. P. D. 280; 49 L. J. C. P. 480); but under the present rules a special indorsement is deemed to be a statement of claim (0. III. r. 6; 0. XX. r. 1 (a); Veale v. Automatic Boiler Co., supra; Anlaby v. Prætorius, supra), and the provisions of the present rules with respect to objections in point of law (see 0. XXV. rr. 2, 3, cited post, pp. 598, 599), are different from those of the repealed rules with respect to demurrers.

Where the insufficiency of a special indorsement in point of law arises from mere inaccuracy of statement, or want of care in preparing the indorsement, the proper course would seem to be to apply by summons to have the indorsement struck out or amended as embarrassing. (See ante, p. 11.)

A foreign or colonial judgment, which in the Courts of the country pronouncing it is treated as conclusively establishing the existence of a debt so as to make it res judicata between the parties, may be the subject

of a special indorsement under O. III. r. 6. (Grant v. Easton, 13 Q. B. D. 302; 53 L. J. Q. B. 68; Nouvion v. Freeman, 15 App. Cas. 1.) A claim for arrears of alimony pendente lite cannot be so indorsed. (Bailey v. Bailey, 13 Q. B. D. 855; 50 L. T. 722.)

A claim against a married woman in respect of a debt contracted by her before or during her marriage, and payable out of her separate property, may be specially indorsed under O. III. r. 6. (Scott v. Morley, 20 Q. B. D. 120; 57 L. J. Q. B. 43; Downe v. Fletcher, 21 Q. B. D. 11; Axford v. Reid, 22 Q. B. D. 548; 58 L. J. Q. B. 230; "Husband and Wife," post, p. 219.)

A solicitor's bill of costs may be the subject of a special indorsement, although there has been no taxation and the client is entitled to a taxation, but in such cases if the plaintiff applies for leave to sign judgment under O. XIV., the order is made in a special form preserving the client's right to a taxation. (See Smith v. Edwardes, 22 Q. B. D. 10; 58 L. J. Q. B. 227; Lumley v. Brooks, 41 Ch. D. 323; 58 L. J. Ch. 494.)

The provision in O. III. r. 6, with respect to special indorsements in actions by landlords against tenants for the recovery of land, only applies to simple cases between landlord and tenant where it is unnecessary to prove any devolution of title on the part of the plaintiff, as, for instance, where the plaintiff claims to enter under the terms of a lease or agreement granted by himself, or where the defendant has attorned to the plaintiff by payment of rent, or is otherwise estopped from denying the plaintiff's title. (Casey v. Hellyer, 17 Q. B. D. 97, 99; 55 L. J. Q. B. 207.)

A claim to recover land from a tenant on determination of the term by forfeiture, is not the subject of a special indorsement on the writ. (Burns v. Walford, W. N. 1884, p. 31; Mansergh v. Rimell, ib. p. 34; Arden v. Boyce, (1894) 1 Q. B. 796; 63 L. J. Q. B. 338.)

A mortgagor who, by the mortgage deed, attorns tenant to the mortgagee at a rent for the purpose of securing punctual payment of the interest, and gives to the mortgagee a power to enter upon the mortgaged premises at any time, or at any time after a certain date, and without giving any notice to quit, is a tenant to the mortgagee within the meaning of O. III. r. 6, above cited, and the mortgagee may proceed against him to recover possession of the premises under O. XIV. ̃ ̄(Kemp v. Lester, (1896) 2 Q. B. 162; 65 L. J. Q. B. 532; and see Daubuz v. Lavington, 13 Q. B. D. 347; 53 L. J. Q. B. 283; Hall v. Comfort, 18 Q. B. D. 11; 56 L. J. Q. B. 185; though, on certain other points not material for the present purpose, those cases have been overruled: see In re Willis, 21 Q. B. D. 384; 57 L. J. Q. B. 634; In re Burdett, 20 Q. B. D. 310; In re Yates, 38 Ch. D. 112.)

A claim for principal and interest due on a mortgage may be specially indorsed, and the fact of the appointment of a receiver does not in itself render the procedure under O. XIV. inapplicable, but where there are accounts to be inquired into or taken, an application under that Order will, in general, be unsuccessful. (Lynde v. Waithman, (1895) 2 Q. B. 180.)

Interest cannot be made the subject of special indorsement, unless it is shown to be due under a contract, express or implied, or under a statute. (Rodway v. Lucas, 10 Ex. 667; 24 L. J. Ex. 155; Wilks v. Wood, (1892) 1 Q. B. 684; 61 L. J. Q. B. 516; Gold Ores Co. v. Parr, (1892) 2`Q. B. 14; 61 L. J. Q. B. 522.)

Claims which, by s. 57 of the Bills of Exchange Act, 1882, are to be deemed to be liquidated damages, may be specially indorsed upon the writ (Lawrence v. Willcocks, (1892) 1 Q. B. 696; 61 L. J. Q. B. 519; Dando

The like, stating that the Particulars exceed three Folios, and referring to Particulars delivered at the Time of, or before the Service of the Writ (b).

[Heading as in the preceding form.]

The plaintiff's claim is, &c. [here state the nature of the plaintiff's claim, as in the preceding form, and proceed as follows:]

Particulars of the said debt [or, claim], which exceed three folios, are delivered herewith [or, were delivered to the defendant on the of, 18-]. 18—].

The like, where there are several distinct Causes of Action for different Debts or Liquidated Demands, &c., within the terms of O. III. r. 6.

Statement of Claim.

The plaintiff claims £ as follows:

(1.) For [Here state the first or principal claim, subjoining particulars of it where necessary: see the preceding form].

(2.) For [Here state the second claim, subjoining particulars of it where necessary].

[Conclude as in the preceding forms.]

For a Form of Claim for Goods sold and delivered, given in App. C., Sect. IV., No. 1, see "Sale of Goods," post, p. 314.

v. Boden, (1893) 1 Q. B. 318; 62 L. J. Q. B. 339); and in an action upon a bill or note, the writ may be specially indorsed with a claim for interest from the date of the writ till payment or judgment" (London Bank v. Clancarty, (1892) 1 Q. B. 689; 61 L. J. Q. B. 225). See further, "Bills of Exchange," post, pp. 131, 132.

A claim for the penalty of a bond, with a special condition on which breaches have to be assigned under 8 & 9 Will. III. c. 11, cannot be specially indorsed under O. III. r. 6. (Tuther v. Caralampi, 21 Q. B. D. 414; see "Bonds," post, p. 160.) But an indorsed statement of claim for the penalty only of a common money bond within 4 & 5 Anne, c. 16, s. 12, may be a good special indorsement, and judgment may be given under O. XIV. for the amount really due under the condition of the bond. (Gerrard v. Clowes, (1892) 2 Q. B. 11; 61 L. J. Q. B. 487.)

The special indorsement may give credit for any payment on account (see App. C., Sect. IV., Nos. 1. 8), or for an admitted set-off (see Bickers v. Speight, 22 Q. B. D. 7; 58 L. J. Q. B. 42.)

(b) See "Particulars,” ante, p. 37.

B.L.

G