Appear ance. In district registry. Memorandum of appearance. ORDER XII. APPEARANCE. 1 and la. Except in the cases otherwise provided for by these Rules a defendant shall enter his appearance in London at the Central Office. 2. If any defendant to a writ issued in a district registry resides or carries on business within the district, he shall appear in the district registry. 3. If any defendant neither resides nor carries on business in the district, he may appear either in the district registry or in London. 4. If a sole defendant appears, or all the defendants appear in the district registry, or if all the defendants who appear, appear in the district registry, and the others make default in appearance, then, subject to the power of removal hereinafter provided, the action shall proceed in the district registry. 5. If the defendant appears, or any of the defendants appear, in London, the action shall proceed in London; provided that if the Court or a judge shall be satisfied that the defendant appearing in London is a merely formal defendant, or has no substantial cause to interfere in the conduct of the action, such Court or judge may order that the action may proceed in the district registry, notwithstanding such appearance in London. When a writ is issued from a district registry, and the defendant enters an appearance in London, the memorandum of appearance should recite that the action has been begun in the district registry, its title in that registry, and that the defendant is out of the jurisdiction of that registry (The General Birch, 33 L. T. N. S. 792). 6. A defendant shall enter his appearance to a writ of summons by delivering to the proper officer a memorandum in writing dated on the day of its delivery, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. He shall at the same time deliver to the officer a duplicate of the memorandum, which the officer shall seal with the official seal showing the date on which it is sealed, and then return to the person entering the appearance, and the duplicate memorandum so sealed shall be a certificate that the appearance was entered on the day indicated by the seal. Notice of the appearance must be sent on the same day to the plaintiff's solicitor. (R. 6, April, 1880.) ance An absolute appearance once entered cannot be recalled Appear(The Blakeney, Swa. 428). But the defendant if he con- under pro. siders that the Court has no jurisdiction over the subject- test. matter of the action may appear under protest, as this practice is still in force, taking advantage of A. C. R., 1859, r. 37: "If the solicitor intends to object to the jurisdiction of the Court the appearance may be entered under protest" (The Vivar, L. R. 2 Ad. 29; 35 L. T. N. S. 782). The memorandum of appearance should in that case bear the words "under protest " on it. When the defendant has thus appeared under protest he may deliver a petition on protest, wherein the facts which show the want of jurisdiction should be stated (The Pieve Superiore, L. R. 5 P. C. 482; 43 L. J. Ad. 20). With the exception of the commencement, the form of the petition should be that of an ordinary statement of claim. See Precedent, App. VI. To this the plaintiff replies, or he may move the Court to reject the petition. A more expeditious and ordinary course for a defendant under protest to pursue is to move the Court to dismiss the action or statement of claim. Should the protest be overruled the action will proceed in the ordinary course. 7. The solicitor of a defendant appearing by a solicitor shall state Address in such memorandum his place of business, and, if the appearance is for service entered in the London office, a place, to be called his address for service, which shall not be more than three miles from Temple Bar; and, if the appearance is entered in a district registry, a place to be called his address for service, which shall be within the district. 8. A defendant appearing in person shall state in such memorandum his address, and, if the appearance is entered in the London office, a place to be called his address for service, which shall not be more than three miles from Temple Bar; and, if the appearance is entered in a district registry, a place, to be called his address for service, which shall be within the district. 9. If the memorandum does not contain such address, it shall not be received; and, if any such address shall be illusory or fictitious, the appearance may be set aside by the Court or a judge, on the application of the plaintiff. Entry of appear. ance. Appearance by partners. By two or more defendants. Non-entry 10. The memorandum of appearance shall be in the Form No. 6, Appendix (A), Part I., with such variations as the circumstances of the case may require. It has been decided in the Admiralty registry that in an action in rem the names of the parties need not necessarily appear. See O. vii. For this form see App. IV. 11. Upon receipt of a memorandum of appearance, the officer shall forthwith enter the appearance in the cause book. 12. Where partners are sued in the name of their firm, they shall appear individually in their own names. But all subsequent proceedings shall, nevertheless, continue in the name of the firm. 12a. Where any person carrying on business in the name of a firm apparently consisting of more than one person, shall be sued in the name of the firm, he shall appear in his own name; but all subsequent proceedings shall, nevertheless, continue in the name of the firm. 13. If two or more defendants in the same action shall appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memorandum. This last rule is of importance, since in actions in rem there may often be several defendants; as to persons who may appear in an action in rem, see r. 17, post. 14. A solicitor not entering an appearance in pursuance of his of appear written undertaking so to do on behalf of any defendant shall be ance by liable to an attachment. solicitor. Time of appear. ance. Interven. tion of any person 15. A defendant may appear at any time before judgment. If he appear at any time after the time limited for appearance he shall, on the same day, give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues in person, and he shall not, unless the Court or a judge otherwise orders, be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the writ. 17. In an Admiralty action in rem, any person not named in the writ may intervene and appear as heretofore, on filing an affidavit having an showing that he is interested in the res under arrest, or in the fund interest in in the registry. the pro perty arrested. The first part of Rule 17 distinctly enunciates what was long a practice in the Court of Admiralty. A sub stantial interest in the res or fund is required, or in other words an interest which may be injuriously affected by the decree in the action (The Dowthorpe, 2 W. Rob. 73 (77)). This principle does not in reality conflict with the judgment in The Killarney, Lush. 427 (435); 6 L. T. N. S. 908, where it was assumed that the interests of third parties would from the nature of the defendant's case be properly cared for without the necessity of a separate appearance. So, a mortgagee may appear (The Julinder, Spk. 75), and the trustee of a bankrupt (The Dowthorpe, supra), and underwriters, as long as they fall within the above principle (The Regina del Mare, Br. & Lush. 315). The owners of a ship which has been found to blame in a collision suit may appear in an action of salvage against the injured and salved ship, and, if they put in bail in lieu of the latter, may conduct the defence, whilst the bail of the salved ship will be discharged (The Diana, 31 L. T. N. S. 203; 2 Mar. L. C. N. S. 366). Also the owners of cargo may appear in a wages suit against ship and freight, where the claimants desire to be preferred to bottomry bondholders, since the result may cause the latter to have a claim against the cargo (The Union, Lush. 128; 30 L. J. Ad. 19). Adverse claimants would, it seems, also be allowed to appear (The India, 32 L. J. Ad. 35; The Volant, Br. & Lush. 321; The Eastern Belle, 33 L. T. N. S. 214). ORDER XIII. DEFAULT OF APPEARANCE. ance in actions in 1. Where no appearance has been entered to a writ of summons Default of for a defendant who is an infant, or a person of unsound mind not so appearfound by inquisitions, the plaintiff may apply to the Court or a judge for an order that some proper person be assigned guardian of such defendant, by whom he may appear and defend the action. But no such order shall be made unless it appears on the hearing of such personam: demand. application that the writ of summons was duly served, and that notice of such application was after the expiration of the time allowed for appearance, and at least six clear days before the day in such notice named for hearing application, served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such writ of summons, and also (in the case of such defendant being an infant not residing with or under the care of his father or guardian) served upon or left at the dwelling-house of the father or guardian, if any, of such infant, unless the Court or judge at the time of hearing such application shall dispense with such last-mentioned service. This rule is applicable only to actions in personam. 2. Where any defendant fails to appear to a writ of summons, and the plaintiff is desirous of proceeding upon default of appearance under any of the following rules of this order, or under Order XV., Rule 1, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be. Default in 5. Where the defendant fails to appear to the writ of summons, and claim for the writ is not specially indorsed, but the plaintiff's claim is for a debt liquidated or liquidated demand only, no statement of claim need be delivered, but the plaintiff may file an affidavit of service or notice in lieu of service, as the case may be, and a statement of the particulars of his claim in respect of the causes of action stated in the indorsement upon the writ, and may, after the expiration of eight days, enter final judgment for the amount shown thereby and costs to be taxed, provided that the amount shall not be more than the sum indorsed upon the writ, besides costs. Proceedings in default of 5a. Where a defendant fails to appear to a writ of summons issued out of a district registry, and the defendant had the option of entering an appearance either in the district registry or in the London office, judgment for want of appearance shall not be entered by the plaintiff until after such time as a letter posted in London on the previous evening in due time for delivery to him on the following morning, ought in due course of post to have reached him. The above rules only apply to actions in personam. (10.) In an Admiralty action in rem in which an appearance has not been entered, the plaintiff may proceed as follows: "If within a fortnight after service of a writ of summons and |