tery, where judgment had been taken by default. The same conclusion is come to in Boyce v. Comstock, 1 C. R. (N. S.) 290. In Stanley v. Anderson, 1 C. R. 52, a similar disposition was made of a case where damages for a personal injury were sought, and the form of judgment approved of by the court is given in extenso, in the report, and may be safely followed.-See Appendix. In Brown v. Miller, 1 Barb. S. C. R. 24, a decided preference is expressed by the court for assessment by a jury, instead of a reference, in cases where the former proceeding is applicable, on the ground of the augmented expense of the latter course; and, although before the Code, this case may probably be followed, under similar cir

cumstances.

In Jones v. Kip, 1 C. R. 119, it is held that judgment for want of an answer, cannot be impeached by appeal.-See this subject hereafter considered. The proper form of action under such circumstances, would clearly seem to be a special application to set aside such judgment, and for leave to defend, under the special powers for that purpose, conferred by sec. 174; to applications of which nature the courts are always disposed to listen with favor, unless under circumstances peculiarly calling for no interference on their part. See this subject fully considered hereafter, in the last chapter of this division of the work.

The third subdivision of the section in question, i. e., that which prescribes the mode of application for judgment, in cases where the service of the complaint has been by publication, remains to be dealt with in few words. In these cases, proof of the demand mentioned in the complaint must always be tendered, at the time of the application. This proof may be by the affidavit of the plaintiff, and it will be better that, in all cases, that affidavit should be full, and should comply with the formalities prescribed, and which are clearly indispensable, in cases where the defendant is nonresident. See form of affidavit in Appendix.

Whether further proof may or may not be required, and whether the giving of security for restitution, in the event of the adverse party being thereafter admitted to defend, and succeeding in his defence, may, or may not be enforced, under the power to that effect conferred on the court, rests entirely in the discretion of the judge.

The proceedings in the event of such an application on the part of the defendant, have been heretofore alluded to, under

the head of service by publication, and will be hereafter considered in chapter V. of this division.

The form of judgment to be entered in such case, assuming the court to be satisfied with the evidence produced, or that security has been given as required, is precisely the same as in other cases, and no further observations appear therefore to be necessary; except, that by the recent case of Tomlinson v. Van Vechten, 6 How. 199, it is held that the defendant, in these cases, is not in default immediately on the expiration of the publication of the notice, but that he has the usual twenty days to answer, from the period that the publication is complete.

In fine, it may be generally observed in relation to judgments for want of an answer, that it is always competent for the plaintiff to take judgment against any of the defendants who may not have answered the complaint. If the interest of such defendant be of a several nature, the judgment is of course only operative as against him alone. The case of joint debtors is, however, widely different, as, under these circumstances, the plaintiff may take judgment against all, on proof of service on any one or more, and proof of no answer by the defendant thus served; and such judgment is fully available against partnership property. The effect of a judgment of this nature, and the further proceedings necessary to render it of operative force, as against the several estates of parties who have not been served in the first instance, will be entered upon hereafter, partly under the head of execution, and partly in a supplementary chapter, closing this division of the work.

In no case can a judgment taken for want of an answer, exceed the amount of relief demanded by the complaint.See Code, sec. 275, and Hurd v. Leavenworth, 1 C. R. (N. S.) 278, before cited.

The above observations bear reference to an actual, those following, to an imputed default to defend. A default of this nature may arise in either of two manners; first, by the failure to sustain an issue of law when taken, see section 369 of the Code, specially providing to this effect, second, by the striking out as frivolous or sham, of a defence, or of a reply to a valid defence actually put in.

In either of these events, the party failing, unless leave be granted to him to plead over or amend, is practically in the situation of having failed to make any defence or reply at all,

under which circumstances his adversary is, as of course, entitled to judgment. A similar state of circumstances arises, in the event of a decision of the above nature having been pronounced, with leave to plead over or amend, and of the party to whom such leave is given, failing to do so within the time allowed to him for that purpose; on which failure he is equally in default, and his adversary is equally entitled to the remedy of judgment against him. Positions analagous to the above, are those of a plaintiff failing to reply to new matter in the answer, constituting a defence by way of counter-claim, going to the whole subject matter of the action, under which circumstances the defendant is entitled to move for judgment, under sec. 160, or of a defendant succeeding in a motion, under rule 23, to dismiss the plaintiff's complaint, for want of due prosecution.

The mode of entering judgment on an issue of law decided in favor of the plaintiff, is specially provided for by sec. 269, and is the same as upon an actual failure to answer. The form of entry of judgment on the part of the defendant, is of a similar nature to that on the dismissal of the complaint on the regular trial of the cause, and a reference or writ of enquiry may be granted, where necessary, under the powers of the same section.

The proceedings on the entry of judgment in these, as, indeed, in all other cases of imputed, are practically the same as in those of actual default. The judgment roll, on judgment on a demurrer in favor of either party, when such party is in a situation to enter up such judgment without further delay, consists of the summons and the pleadings on which the question has arisen, the judge's decision thereon, the costs, &c., and postea; for which, see form in Appendix. If leave to amend have been granted, but an amendment has been neglected to be made, the order by which such leave was given, and an affidavit that no amendment has been made in pursuance thereof, are essential, and must form part of the judgment roll, in addition to the papers above referred to.

The questions in relation to the striking out of sham or irrelevant defences, under sec. 152, and of the circumstances under which a demurrer, answer, or reply, will be adjudged to be frivolous, and judgment given thereon, on an application under sec. 247, have been before considered, and the cases thereon

cited, under the head of pleading, and of the proceedings of the different parties thereon.

It was at first held under the Code of 1848, that the proper course to pursue in the case of a frivolous demurrer, was to place the cause upon the calendar, and call it on, out of its order, according to the old practice-Partridge v. McCarthy, 1 C. R. 49, and a motion to set aside a demurrer as frivolous was there denied, but without costs.

The contrary doctrine, however, prevailed in the cases of Noble v. Trowbridge, 1 C. R. 38; Stokes v. Hagar, 1 C. R. 84; 7 L. O. 16; Swift v. De Witt, 1 C. R. 25; 3 How. 280; 6 L. O. 314; Corning v. Haight, 1 C. R. 72, and others; but the insertion of sec. 247, as it now stands in the present measure, has put the matter beyond doubt.

The proper course is, in all such cases, to move at once under that section, as, otherwise, a pleading, however frivolous, cannot be disregarded as a nullity.-Corning v. Haight, above cited; Hartness v. Bennett, 1 C. R. 68; 3 How. 289; in which latter case, a judgment so obtained by default, without notice to the defendant, was set aside. In the former, an answer by a defendant sued as co-partner, to the effect, simply, that he never was a co-partner with the other defendants, without noticing the other allegations in the complaint, was decided not to be frivolous.

A motion under the section in question, must be made with due diligence, or the right to take the objection will be considered as gone. See Isham v. Williamson, and Corlies v. Delaplaine, before cited under the head of reply, overruling the case of Stokes v. Hagar, there also mentioned.

A motion of this nature cannot be made at chambers, but must be in court. No affidavit is necessary to be served with the notice, nor can any be taken into account in deciding the question, except mere proof of service, where the defendant does not appear.

The judgment must be granted or refused, on what appears. on the pleadings alone. The notice must ask for judgment, not merely for an order, or relief cannot be given under it.-Darrow v. Miller, 5 How. 247; 3 C. R. 241. See, also, Rae v. The Washington Mutual Insurance Company, 6 How. 21.

Where one only of several defendants answered, stating facts which constituted no defence as against the plaintiff, though

showing a case for relief as between him and his co-defendants, who had not answered, judgment was given for the plaintiff, on a motion to strike out such answer, and for judgment as against all the defendants; but leave was given to such defendant to amend his answer, on payment of costs.- Woodworth v. Bellows, 4 How. 24.

The cases in which relief of this nature has been granted under the section in question, are numerous, and have been before cited, under different heads, in relation to pleadings in general. See, in particular, Conde v. Shepard, 4 How. 75; 2 C. R. 58; Camden Bank v. Rodgers, 4 How. 63; 2 C. R. 45; Glenny v. Hitchings, 4 How. 98; 2 C. R. 56; Beers v. Squire, 1 C. R. 84; Pierson v. Cooley, 1 C. R. 91; Mullen v. Kearney, 2 C. R. 18; McMurray v. Gifford, 5 How. 14; Bentley v. Jones, 4 How. 335, and many others. See, also, Appleby v. Elkins, 2 Sandf. S. C. R. 673, 2 C. R. 80, in which case, on judgment being entered on a frivolous demurrer, leave to answer was refused, there being no affidavit of merits.

The court has, however, frequently shown itself unfavorable to the granting of motions of this description. See Hartness v. Bennett, before cited; Scovill v. Howell, 2 C. R. 33; Smith v. Shufelt, 3 C. R. 175, and Neefus v. Kloppenburg, 2 C. R. 76; in which latter case, the court laid down the principle that it will not strike out a demurrer as frivolous, unless it appears to be taken merely for the purpose of delay, or unless the grounds of demurrer set forth are clearly untenable.

A motion under this section will be denied, where the parties have previously moved, without success, to set aside the same pleading for irregularity. Objections to any proceeding in a cause, must all be embodied in one motion, and cannot be permitted to be split up into several.-Desmond v. Woolf, 6 L. O. 389; 1 C. R. 49.

Where a defendant has both demurred and answered to the whole complaint, or to one single cause of action therein, the defendant cannot treat either the answer or the demurrer as a nullity, nor can he move to strike out the demurrer as frivolous under this section. "The proper remedy is to move to strike out the demurrer, or the answer; or for an order, compelling the defendants to elect by which of the pleadings they will abide."-Spellman v. Weider, 5 How. 5; Slocum v. Wheeler, 4 How. 373.