This section is similar in language to Sec. 150 and the notes to that section will apply mutatis mutandis to this.

Parties claiming to be interested.-Not 'parties to a suit,' as in Sec. 150: by interested' is intended having a bonâ fide interest, as appears from Sec. 531.

528. If the agreement is for the delivery of any property, or for the When value of sub- doing, or the refraining from doing, any particular ject-matter must be act, the estimated value of the property to be delivered, or to which the act specified has reference, shall be stated in the agreement.

stated.

529. The agreement, if framed in accordance with the rules herein before Agreement to be contained, may be filed in the Court which would have jurisdiction to entertain a suit, the amount or value of the subject-matter of which is the same as the amount or value of the subject-matter of the agreement.

filed and numbered as a suit.

The agreement, when so filed, shall be numbered and registered as a suit between one or more of the parties claiming to be interested, as plaintiff or plaintiffs, and the other or others of them as defendant or defendants; and notice shall be given to all the parties to the agreement other than the party or parties by whom it was presented.

The subject-matter:-That is, the whole subject-matter. See the note to “having jurisdiction” under Sec. 525, and that to “and in dispute in the suit" under Sec. 150.

Parties to be subject to Court's jurisdiction.

Hearing and disposal of the case.

530. When the agreement has been filed, the parties to it shall be subject to the jurisdiction of the Court, and shall be bound by the statements contained therein.

531. The case shall be set down for hearing as a suit instituted under chapter V, the provisions of which shall apply to such suit so far as the same are applicable.

If the Court is satisfied, after an examination of the parties, or taking such evidence as it thinks fit,

(a) that the agreement was duly executed by them, and

(b) that they have a bona fide interest in the question stated therein, and (c) that the same is fit to be decided,

it shall proceed to pronounce judgment thereon, in the same way as in an ordinary suit, and upon the judgment so given a decree shall follow, and shall be enforced in the manner provided in this Code for the execution of decrees.

See the notes to Sec. 151.

CHAPTER XXXIX.

OF SUMMARY PROCEDURE ON NEGOTIABLE INSTRUMENTS. The Committee said in their report of the 21st September 1876" This Chapter corresponds with 18 & 19 Vic., c. 67 and Act V of 1866, sections 2 to 8. We have here declared (in accordance with decisions of Bramwell, B. and Phear, J.,) that the defendant shall not be required to pay into Court the sum mentioned in the summons, unless the Court thinks his defence not to be primâ facie sustainable or feels reasonable doubt as to its good faith. And we have taken the opportunity of declaring (contrary to the decision of the latter Judge) that the clause corresponding with Act V of 1866, Sec. 2, is not confined to cases in which the bill sued upon, together with mere lapse of time, is sufficient to establish a primâ facie right to recover."

The English Act, commonly known as "Keatings," and "incorporated" by Ord. II, Rule 6, of the Rules S. C., provides that actions on bills of exchange may be brought within six months from maturity, by special writ, upon affidavit of personal service, of which the plaintiff may at once sign judgment unless the defendant, upon affidavits disclosing reasonable grounds of defence, shall have obtained leave to appear within twelve days after service. See Lely and Foulkes, p. 124.1

The Limitation Act, 1877, makes a "promissory note" mean (for the purposes of the Act) any instrument whereby a person engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight. The question therefore arises: Is an ordinary written unconditional agreement or promise to pay a determinate sum of money on demand, or on or before a certain date, such as natives of this country execute amongst one another every day, a 'promissory note' within the meaning of this Chapter? 'Hundis,' which come within the provisions of this Chapter, are expressly declared by the "Negotiable Instruments Bill, 1877," not to be negotiable instruments, but, as I have ventured to point out for consideration, there appears to be nothing in that proposed enactment to exclude unconditional agreements of the above nature from the category of negotiable instruments.

Institution of summary suits upon bills of exchange, &c.

532. In any Court to which this section applies all suits upon bills of exchange, hundis or promissory notes may, in case the plaintiff desires to proceed under this chapter, be instituted by presenting a plaint in the form prescribed by this Code; but the summons shall be in the form contained in the fourth schedule hereto annexed, No. 172, or in such other form as the High Court may from time to time prescribe.

In any case in which the plaint and summons are in such forms respectively, the defendant shall not appear or defend the suit unless he obtains leave from a Judge as hereinafter mentioned so to appear and defend;

and in default of his obtaining such leave or of appearance and defence in pursuance thereof, the plaintiff shall be entitled to a decree for any sum not exceeding the sum mentioned in the summons, together with interest at the rate specified (if any) to the date of the decree, and a sum for costs to be fixed by a rule of the High Court, unless the plaintiff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way, and such degree may be enforced forthwith.

The defendant shall not be required to pay into court the sum mentioned in the summons, or to give security therefor, Payment into court unless the Court thinks his defence not to be primâ of sum mentioned in facie sustainable, or feels reasonable doubt as to its good faith.

summons.

Explanation. This section is not confined to cases in which the bill, hundí or note sued upon, together with mere lapse of time, is sufficient to establish a primâ facie right to recover.

This section is modelled upon Sec. 1 of Keatings Act, referred to in the head-notes to this Chapter, but does. not, as does that section, provide for the plaintiff expressing by his first proceeding his determination to avail himself of the provisions of the summary procedure. That is to say, whereas the English enactment provides for the plaintiff suing out a writ of summons in a special form, this section expressly provides that the plaintiff shall institute his suit by presenting a plaint in the usual form. How, then, is the court to be apprised of the fact that the procedure desired is that prescribed by this section? What is there in the first stage of the suit brought "under this Chapter" to distinguish it from a regular suit? And how, and in what case or cases, is Art. 3 of the 2nd Schedule of the Limitation Act,, 1877, to operate by barring a suit brought under this Chapter?

Bills of exchange.-See the notes to Sec. 266. A cheque on a banker is within the words "bill of exchange" in Keatings Act. Eyre v. Waller, 5 H. & N. 813; 29 L. J., Ex., 246.

Hundis. According to Wilsons Glossary are simply bills of exchange. The Negotiable Instruments Bill makes them not to be such.

Promissory notes. See the head-notes to this Chapter and the notes to Sec. 266.

In case the plaintiff desires. See the head-notes. Probably the desire should be intimated at the foot of the plaint.

Art. 5, Sch. II, of the Limitation Act, 1877, prescribes a period of six months from the time when the instrument sued upon becomes due and payable, in suits under this Chapter. And Art. 73 makes time run against the holder of a bill of exchange or promissory note payable on demand, from the date of the bill or note.

So in England, where the note is payable on demand, the six months run from the date, Maltby v. Murrells, 5 H. & N., 813; 29 L. J., Ex. 377, and the defendant by acquiescence may preclude himself from objecting that the six months have elapsed.

The writ may be amended so as to be an ordinary writ. Leigh v. Baker, 2 C. B., N. S., 367; 26 L. J., C. P., 220. And there would seem to be nothing in this Chapter to prevent the plaintiff from proceeding to sue on the original plaint in the regular manner after failing, or attempting, to get the summary relief.

The summary procedure under the act does not lie against persons who are not actual parties to the instruments, but who have become liable thereon by representation or marriage, Ib.; Marriage v. Skiggs, 28 L. J., Ch. 433; but it seems to be quite immaterial whether the holder is entitled in a representative character or otherwise. (Days C. L. P. Act, ed. 4, p. 382.)

To pay into Court.-Under Sec. 533 see the head-notes to this Chapter.

Is not confined.-See the head-notes to this chapter.

533. The Court shall, upon application by the defendant, give leave to Defendant showing appear and to defend the suit, upon the defendant defence on merits to paying into court the sum mentioned in the sumhave leave to appear. mons or upon affidavits satisfactory to the Court, which disclose a defence or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application, and on such terms as to security, framing and recording issues, or otherwise, as the Court thinks fit.

This is Sec. 2 of Keatings Act, under which Lely and Foulkes observe: "The application for leave to appear is made ex parte, and the plaintiff must apply to rescind it; but if there is a conflict of evidence upon the affidavits the Court will not set aside the order. (Frebout v. Stevens, 30 L. J., Ex., 1.) The defendant need not produce an affidavit of merits; it is enough if his affidavit disclose any defence, whether legal or equitable. (Casella v. Dardon' L. R., 8 C. P., 100; 42 L. J., C. P., 58.) An appeal lies to the Court from the judge at chambers. (Matthews v. Marsland, 27 L. J., Ex., 148.) The defence at the trial is not confined to the defence suggested in the affidavit. (Saul v. Jones, 28 L. J., Q. B., 37.) Money paid into Court forms no part of the debtor's estate, so as to pass to his trustee in bankruptcy (Tate ex parte Keyworth. In re, L. R., 9 ch. 379; 43 L. J., Bank., 102; 30 L. T., 620.)

It is enacted by Sec. 87 of the C. L. P. Act, 1854, (incorporated with this Act by Sec. 7, infra) as follows:-"In case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the court or a judge, or a master, against the claims of any other person on such negotiable instrument." The indemnity must be offered before action, otherwise the plaintiff may be ordered to pay costs up to the giving of the indemnity. (King v. Zimmerman, L. R., 6 C. P., 466; 40 L. J., C. P., 278; 24 L. T., 623; 19 W. R., 1009.)"

Upon application. Within ten days from the date of the service of the summons, under Art. 159 of the Limitation Act, 1877. In England the period is twelve days.

534. After decree, the Court may, under special circumstances, set Power to set aside aside the decree, and if necessary stay or set aside decree. execution, and may give leave to appear to the summons and to defend the suit, if it seem reasonable to the Court so to do, and on such terms as the Court thinks fit.

See for example Oake and another v. Moorecroft, L. R., 5 Q. B., 76, where judgment was set aside and the defendant discharged out of custody, on the ground that the judgment was signed after appearance entered. Also Leigh v. Baker, 2 C. B., N. S., 367.