Court for the purpose of preventing the operation of any statute whereby the time for the commencement of any action is or may be limited, and the first and each subsequent summons shall be in force for twelve calendar months from the time of issuing the same, including the day of such issuing, and such subsequent summons shall be issued before the expiration of the previous summons, and entered in the plaint book of the Court: Provided, that on entering the plaint in the first instance, the usual fee shall be paid; but for such subsequent summonses no further fee shall be paid, nor shall it be necessary that any attempt be made to serve the first summons, or any successive summons, unless the plaintiff require the same; and such successive summonses shall be a continuance of the action on and from the day on which the first summons was issued (ƒ).

It may be here observed, that where a summons has been served in due time to prevent the operation of any statute of limitations, and either party dies after such service, and after the lapse of the period within which it is provided that an action may be brought, proceedings may be taken by or against the surviving party, or by or against the personal representative of the deceased party, within one year from the day of holding the Court at which the summons required the defendant to appear (g).

(f) Rules of Practice, r. 173.

(g) Id. r. 174.

CHAPTER IV.

THE DEFENDANT'S PROCEEDINGS ON SERVICE OF THE SUMMONS.

1. Proceedings on an Ordinary Summons where the Defendant admits or confesses the Claim.

2. Settlement by Agreement with the Plaintiff.

3. Payment into Court.

4. Special Defences.

5. Proceedings on a Summons to obtain Judgment by Default.

6. Proceedings on a Summons under "The Summary Procedure on Bills of Exchange Act, 1855."

1. PROCEEDINGS ON AN ORDINARY SUMMONS WHERE THE DEFENDANT ADMITS OR CONFESSES THE CLAIM.

THE service of the summons having been duly effected in one or other of the modes pointed out in the last chapter, we have now to consider the course to be adopted by the defendant (a). That will depend on whether he admits or disputes the claim.

Where the Defendant admits the entire Claim.]-If the defendant admits the entire claim, the most simple and the cheapest mode of settling it is by payment.

Payment on an Ordinary Summons.]-In the case of an ordinary summons (b) if the defendant pays the debt and costs, as stated in the summons, five clear days before the hearing, he will avoid further costs; but he may pay the same at any time before the cause is called on for trial, subject to the payment of any further costs which his delay may have caused the plaintiff to incur (c).

(a) As to the mode of proceeding where the wrong person has been served, or where the service, although on the right person, is irregular, see the Manual of Practice and Evidence, 2nd edit. pp. 30, 31, 32. See also as to the amendment

of names, &c. at the trial, post, Chapter VII.

(b) See ante, p. 32.

(c) See the indorsement on the Form of Summons, post, Appendix, Form No. 5.

Although the notice does not so express it, the payment should be made into Court at the office from which the summons issued, and not to the plaintiff, who receives notice of such payment from the Registrar, and on attending with the plaint note given him on the entry of the plaint, receives the amount of the claim (d).

Confession of the Claim.]-By the stat. 13 & 14 Vict. c. 61, s. 8, any person against whom a plaint is entered in any County Court may, if he think fit, whether he be summoned upon such plaint or not, in the presence of the clerk (e), or assistant clerk of the Court in which such plaint has been entered, or one of their clerks respectively, or in the presence of an attorney of one of the Superior Courts, sign a statement confessing and admitting the amount of the debt or demand, or part of the amount of the debt or demand for which such plaint shall have been entered, and such clerk or assistant clerk shall, as soon as conveniently may be after receiving such statement, send notice thereof to the plaintiff, by the post, or by causing the same to be delivered at his usual place of abode or business, and thereupon it shall not be necessary for the said plaintiff to prove the debt or demand so confessed and admitted as aforesaid, but the Judge of such Court, at the next sitting of such Court, whether the parties or either of them attend such Court or not, shall, upon proof by affidavit of the signature of the party, if such statement were not made in the presence of the clerk or assistant clerk, proceed to give judgment for the debt or demand so confessed and admitted, in the same manner, and subject to the same conditions, as if he had tried the cause, and given judgment thereupon.

All confessions under the above section must be delivered to the Registrar five clear days before the return day of the summons: Provided that, at any time before the cause is called on, the defendant may confess and admit the claim according to a form provided in the schedule to the new rules, subject, however, to an order by the Judge to pay such costs as the plaintiff has incurred in consequence of the defendant's not having delivered such confession in due time (ƒ).

The indorsement on the summons accordingly informs the defendant that if he confesses the plaintiff's claim,-by doing

(d) See the Form of Notice of Payment into Court of the whole claim, post, Appendix, Form No. 18.

(e) Now called the Registrar. (f) Rules of Practice, r. 183.

which he will save half the hearing fee (which is 2s. in the pound), he should sign and deliver his confession to the Registrar of the Court five clear days before the day of hearing; nevertheless, he may deliver his confession at any time before the cause is called on, subject to the payment of any further costs which his delay may have caused the plaintiff to incur (g).

2. SETTLEMENT BY AGREEMENT WITH THE PLAINTIFF.

In many cases of a supposed mistake in accounts, or from the existence of a cross claim, or under a variety of other circumstances, an interview with the plaintiff is all that is required for the adjustment of the amount, although the defendant may require time for payment, the statute 13 & 14 Vict. c. 61, s. 9, very properly enacts, that if the person against whom a plaint shall be entered in any County Court can agree with the person on whose behalf such plaint shall have been entered upon the amount of the debt or demand in respect of which such plaint shall have been entered, and upon the terms and conditions upon which the same shall be paid or satisfied, it shall be lawful for such persons respectively, in the presence of the clerk (h) or assistant clerk of the Court in which such plaint shall have been entered, or one of their clerks respectively, or in the presence of an attorney of one of the Superior Courts, to sign a statement of the amount of the debt or demand so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied, such clerk or assistant clerk shall receive such statement, and shall thereupon, upon proof by affidavit of the signature of the party, if such statement were not made in the presence of the clerk or assistant clerk, enter up judgment for the plaintiff for the amount of the debt or demand so agreed on, and upon the terms and conditions mentioned in such statement; and such judgment shall to all intents and purposes be the same, and have the same effect, and shall be enforced and enforceable in the same manner, as if it had been a judgment of the Judge of the said Court.

The new rules further provide, that in all cases of consent under the last-mentioned section, the defendant may confess the amount of the plaintiff's costs besides the Court fees, and

(g) See post, Appendix, Form (h) Now called the Registrar.

No. 5.

the judgment may be entered accordingly, and the amount of the plaintiff's costs shall be stated separately (i).

The indorsement on the summons concisely informs the defendant that if he and the plaintiff can agree as to the amount due and the mode of payment, and will, before the cause is called on for trial, sign a memorandum of such agreement at the Registrar's office, or before an attorney, he will save half the hearing fee (k).

3. PAYMENT INTO COURT.

If, as very frequently happens, the defendant admits part of the demand or amount of damages claimed, and considers that he has a good defence to the residue of the claim, or, in actions of tort, that the plaintiff will be unable to prove that he has sustained any damage beyond a specified sum, and the defendant has no favour to ask of the plaintiff as to giving time for payment, or otherwise, the proper course to pursue is to pay the amount admitted into Court (1).

The stat. 9 & 10 Vict. c. 95, s. 82, gave this power by enacting "that it shall be lawful for the defendant in any action brought under this act, within such time as shall be directed by the rules made for regulating the practice of the Court, to pay into Court such sum of money as he shall think a full satisfaction for the demand of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment; and notice of such payment shall be communicated by the clerk of the Court to the plaintiff by post or by causing the same to be delivered at his usual place of abode or business; and the said sum of money shall be paid to the plaintiff; but if he shall elect to proceed, and if the plaintiff shall recover no further sum in the action than shall have been so paid into Court, the plaintiff shall pay to the defendant the costs incurred by him in the said action after such payment; and such costs shall be settled by the Court, and an order shall thereupon be made by the Court, for the payment of such costs by the plaintiff.'

(i) Rules of Practice, r. 184. (k) See post, Appendix, Form No. 5.

(1) As to the effect of payment

into Court in actions on contract and in torts, see the Manual of Practice and Evidence, 2nd edit. pp. 210, 383.