Beaumont, C.J:— This is an appeal under the Letters Patent from a decision of Macklin J. summarily dismissing the defendant's appeal. The plaintiff is a minor suing by his next friend to enforce an oral agreement for the payment of money. The defendant seems to have avoided service for about a year, but he was eventually served, and was directed to file a written statement by 12th June 1935. He did not file a written statement but applied for further time, putting in a doctor's certificate saying that he was ill. The learned Judge rejected that application, pointing out that although the defendant might be 111 there was no reason why he should not have given instructions to his pleader on which a written statement could have been Sled. The learned Judge thereupon made an order, “case is fixed for hearing ex parte.” It is not uncommon to make an order of that nature where no written statement is put in, but such an order cannot be justified.
2. The Judge should have directed that the case be fixed for hearing in default of written statement. A party is not bound to put in a written statement; if he does not do so, he is taken to admit the allegations in the plaint, but he is entitled to appear and submit any argument open to him on the plaint; for instance that the plaint discloses no cause of action, or that the claim is time barred. However the order in this case seems to have been treated as meaning no more than that the suit would be heard in the absence of a written statement, because when the suit was called on, the defendant's pleader was present, and he put in an application that he might be allowed to withdraw. No order was made upon that, but it is quite clear that neither the defendant nor his pleader was in any way prevented from addressing the Court. The learned Judge heard evidence on behalf of the plaintiff, and passed a decree, and then an application was made under O. 9, R. 13, to have the decree set aside. That application was rejected, and from that order an appeal was summarily dismissed by Macklin J. from whose decree the present appeal is brought. We think there is no case for setting aside the ex parte decree. The most we should be prepared to do would be to direct that the defendant be at liberty to be heard on the basis that no written statement had been put in. But we are satisfied that inasmuch as the defendant was represented at the hearing by his pleader, if he had really had any reason to advance why the plaintiff's claim should not be decreed, he would have advanced it. As I have said, there is nothing whatever to suggest that the Judge prevented him from addressing the Court. In the circumstances therefore we think there is no ground for interfering with the order. The appeal is dismissed with costs.
D.S/R.K
3. Appeal dismissed.