A defendant may make default either in not entering an ap pearance, or in not putting in his defence. If he has not appeared, and, the writ not being especially indorsed (i.e., with a claim for a liquidated sum), he has had a statement of claim filed against him in default, he must appear and deliver his defence within ten days of the filing of the statement of claim. Otherwise he may have judgment signed against him with costs (0. 21, rr. 2-9). In such a case, however, if the plaintiff could have signed judgment merely in default of appearance, he can only have such costs as he would have had in that case. In other words, he will not be allowed the costs of the statement of claim. If a defendant has appeared to the writ other considerations arise. If the writ was specially indorsed he must deliver a defence within ten days unless the plaintiff has proceeded for summary judgment (0. 21, r. 6) and in other cases if a separate statement of claim has been delivered he must deliver his defence within the time limited by the summons for directions (0. 21, r. 8).
The procedure to be adopted if the defendant has not put in a defence depends upon the nature of the action. (See APPEAR ANCE, p. 400.) Close of Pleadings.—There comes a time in every action when the pleadings are deemed to be closed. Where no reply or subsequent pleading is ordered then within four days of the delivery of the last pleading, or where a reply has been ordered within a certain time, at the end of that period the pleadings are to be deemed closed and all statements therein put in issue (0. 27, r. 13). This, however, does not apply to a reply to a counterclaim which is really a defence. Unless the plaintiff obtains leave to reply to a counterclaim, the statements of fact which it contains shall be deemed to be admitted after the ex piration of ten days, unless a reply has been ordered, in which case, if the order is not complied with, the facts will be deemed to be admitted.
amendment will always be allowed, if it can be made without injustice to the other side. While a new cause of action may be introduced into the statement of claim by amendment, if the plaintiff, at the same time seeks to stand on his original claim, leaving his writ unamended, this is practically a discontinuance, for the new claim is wholly unsupported by the writ. Such an amendment will only be allowed on the terms that the plaintiff pays all costs down to the time of the amendment, and that all proceedings are stayed until those costs are paid.
A petition of right cannot be amended unless the amendment is such that if the petition had been presented as amended, the fiat of the attorney-general would have been granted.
To allow an amendment of a petition of right would be to derogate from the prerogative of the Crown. A common informer is but seldom allowed to amend his statement of claim in an action for penalties. Amendment is often allowed on an applica tion to strike out a pleading as embarrassing or because it dis closes no cause of action--ut res magis valeat quam pereat. Although, when a statement of claim is delivered the plaintiff may therein alter, modify or extend his claim without any amendment of the writ, he cannot add a claim on a wholly new and different cause of action except by leave; and if leave be given the writ should be amended. The writ or the statement of claim must be amended in one case, i.e., where the plaintiff recovers by verdict of a jury more than the amount he has actu ally claimed. Otherwise he cannot recover the amount of the verdict. Amendment may be allowed at any time but it should obviously be made at the earliest possible moment. A defendant may have no answer to the claim as amended. A plaintiff may find it necessary to confess an amended defence and stop his action; or, where the amendment involves a payment of money into court, he may be content with the amount paid in.
A plaintiff may, in certain cases, and within a certain time amend his statement of claim, whether indorsed on the writ or not, without leave (0. 28, r. 2). But he cannot, in the exercise of this privilege, add a cause of action which has accrued to him since the writ—although he can do that by leave. Nor can he add new parties. If he has delivered particulars with the statement of claim he can amend them under this rule; but particulars delivered otherwise can only be amended by leave. Under this rule a special indorsement can be amended provided the claim is one which can be specially indorsed. A similar rule (0. 28, r. 3) applies to a counterclaim. But it is important to notice that any amendment so made without leave may be disallowed—or only allowed upon terms—on the application of the other side if the justice of the case so requires (0. 28, r. 4).