CHAPTER VIII. TRIAL. The law with regard to the locality of actions forms a singular Place of and instructive chapter of the English law (1). "During trial. the earliest ages of our judicial history juries were selected for the very reasons which would now argue their unfitness, videlicet, their personal acquaintance with the parties and the merits of the cause; and few rules of law were enforced with greater strictness than those which required that the venue visne or vicinetum, in other words the neighbourhood whence the juries were to be summoned, should be also that in which the cause of action had arisen . . . . The parties were required to state the very venue— the very district, vill, or hundred, where the facts were alleged to have taken place." A striking illustration of the old system is afforded by the celebrated case of Mostyn v. Fabrigas as tried before Lord Mansfield in 1775 (2), where the plaintiff in order to escape the technical rule as to venue, pleaded that the assault had been committed at Minorca (to wit) at London aforesaid in the parish of St. Mary-le-Bow, in the ward of Cheap. The rules now provide that there shall be no local venue for Present the trial of any action, except where otherwise provided by rule. statute. Every action in every Division must, unless otherwise ordered, be tried in the county or place named on the statement of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appearance. Where no place is named, the place of trial is, in the absence of order to the contrary, the county of Middlesex (3). The foregoing provision applies to actions in the Chancery Division, as the rules of October, 1884, provide that it shall apply, "notwithstanding that the action may have been assigned to any judge." () Smith's Leading Cases, vol. i., in notes to Mostyn v. Fabrigas, reported Cowper, 161. (3) Peregina judicia omnibus modis submovemus was the principle of the (3) R. S. C. 1883, 0). xxxvi. r. 1, Trial by jury. The plaintiff is not allowed to leave this point open, but must make up his mind at the latest at the time of delivering the statement of claim. If he omits to do so he cannot name it in an amended statement of claim, and if he has named a place of trial in his original statement of claim he cannot alter it by any subsequent amendment, except by leave of the Court (1). In certain cases specified in the rules, viz. in actions of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, either party, by giving notice in the specified manner, may have the action tried by a jury. It is, however, provided that causes or matters assigned by the Judicature Act to the Chancery Division (ante, p. 354), shall be tried by a judge without a jury, unless the Court otherwise orders (2). The Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the principal Act could, without any consent of parties, have been tried without a jury. It may also direct the trial without a jury of any cause, matter or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the Court, be conveniently made with a jury. In any other cause or matter, upon the application (within ten days after notice of trial has been given) of any party thereto, an order shall be made for a trial with a jury. Unless a trial with a jury has been ordered, or either party has signified a desire to have such a trial, the mode of trial is by a judge without a jury: but the Court may at any time order "any cause, matter or issue to be tried" in the following four ways: (1) by a judge with a jury, or (2) by a judge sitting with assessors, or (3) by an official referee, or (4) by a special referee with or without assessors. Either party when entitled to a jury may have a special jury on giving a proper notice to that effect. The Court has also a general power, subject to the previous rules, to "order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the (') Locke v. White, 33 Ch. Div. 308, and see generally on the subject of venue: Phillips v. Beale, 26 Ch. D. 621; Cardinall v. Cardinall, 25 Ch. D. 772; Powell v. Cobb, 29 Ch. D. 486. (2) Attorney-General v. Vyner, 38 W. R. 194. places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others." trial. The foregoing provisions form a concise code regulating the Notice of mode of trial in general, and in particular the right to a trial with a jury. Their general effect will be found discussed in the cases cited in the notes, to which the diligent student is respectfully referred (1). The general rule is that the trial of any question or issue of fact with a jury takes place before a single judge, but in special cases a trial by two or more judges may be ordered (2). When the issues of fact are ready notice of trial may be given by the plaintiff or other party in the position of plaintiff, with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial, but if the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as the Court may allow, give notice of trial, the defendant may either himself give notice of trial, or may apply to the Court to dismiss the action for want of prosecution; and on the hearing of the application, the Court may order the action to be dismissed accordingly, or may make such other order and on such terms as to the Court or judge may seem just. When no reply is delivered, the six weeks do not begin to run until the three weeks' time to reply has expired (3). Ten days' notice of trial must ordinarily be given, unless short notice of trial, which is a four days' notice, has been agreed to by the parties or ordered by the Court (4). Notice of trial once given cannot be countermanded except by consent, or by leave of the Court, and if the party giving notice of trial for London or Middlesex omits to enter the trial on the day or day after giving notice of trial, the other party may, unless the notice has been countermanded, enter the trial within four days. In many actions in the Chancery Division, e.g., actions for account, administration, redemption, and foreclosure of mortgages, partition, &c., the Court cannot give a final judgment. (1) The Temple Bar, 11 P. D. 6; Coote v. Ingram, 35 Ch. D. 117; Timson v. Wilson, 38 Ch. Div. 72; Fennessey v. Rabbits, 56 L. T. (N.S.) 138. (2) Order XXXVI., r. 9. This is the equivalent of the old trial at bar. This method of procedure was employed in the second trial of the celebrated Tichborne Case: see Dixon (3) Order XXXVI., rr. 11, 12. Litton (1) R. S. C., 1883, Order XXXVI., rr. 13, 19. Accounts and inquiries. Delivery of papers. Default in at the trial. The course then taken is to direct accounts and inquiries before the chief clerk, and to adjourn the further consideration of the action until such accounts and inquiries have been taken and made. The result of the chief clerk's investigation is embodied in a certificate which is filed, and unless objected to becomes binding on the parties in eight days. In such a case the cause or matter may, after the expiration of eight days, and within fourteen days from the filing of the certificate, be set down for further consideration, on the written request of the solicitor for the plaintiff or party having the conduct of the proceedings, and after the expiration of such fourteen days on the written request of the solicitor for the plaintiff or for any other party. This is done upon production of the judgment or order adjourning further consideration, or an office copy thereof, and an office copy of the chief clerk's certificate or a memorandum of the date when the certificate was filed, endorsed on the request by the proper officer. The cause or matter when so set down will not be put into the paper for further consideration until ten days after it has been set down, and is marked in the cause book accordingly. Notice must be given to the other parties in the action at least six days before the day for which the case is so marked. It is the duty of the party entering the trial to deliver to the proper officer two copies of the whole of the pleadings, one of which is for the use of the judge, and it must be borne in mind that by a subsequent rule if a trial cannot conveniently proceed by reason of the solicitor having neglected to attend, or having omitted to deliver papers, the solicitor may be rendered personally liable to pay costs (1). Suppose now one of the parties makes default in appearance appearance. at the trial, the rule then is that if the defendant is in default, the plaintiff may prove his claim, so far as the burden of proof lies upon him. If, on the other hand, the plaintiff makes default in appearance, the defendant, if he has no counter-claim, is entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such counter-claim so far as the burden of proof lies upon him. Attention may be directed to a remarkable case which came (1) R. S. C., 1883, Order xxXVI., r. 30; Order LXV., r. 5. The Court of Appeal has jurisdiction to hear a direct appeal from a judgment by default, but such an appeal will not be encouraged. The proper course for a party against whom judgment has been given by default is to apply to the judge who heard the cause to set aside the judgment, and to rehear the cause: Vint v. Hudspith, 29 Ch. D. 322. action." before the Court of Appeal in 1878, with regard to default of "Test" appearance in a "test action." Seventy-eight actions for alleged fraudulent representations, all of which raised substantially the same question, had been brought by different plaintiffs against the same defendant. It would of course, as was pointed out by Sir George Jessel, have been a scandal to the administration of justice if all these actions had been allowed to proceed, and it was agreed that one action should be made a test action, the result of which was to bind all the plaintiffs, but not to bind the defendant. When the test action came on, the plaintiff, to borrow the language of the judge of first instance, thought fit ignominiously to retreat from the contest. For our purpose it will suffice to say simply that he made default in appearance. The Court of Appeal decided that, though the order contained no express provision to that effect, the Court had power to substitute another of the actions as the test action, and that, as the trial of the original test action had failed to be a real trial of the issue between the plaintiffs and the defendant without any fault of the other plaintiffs, this substitution ought to be made (1). The judges of the Court of Appeal, in delivering judgment, said: "It was called a test action, and although the order speaks of a judgment, what was intended was that there should be a fair trial of the question which should decide everything between the parties ... Now the judge must decide what is a fair trial, whether there really has been a test action tried, and if he is satisfied that there has not been (and how he could come to any other conclusion on the facts of this case it is difficult to understand), surely he must have jurisdiction to modify his former order, which was intended to prevent the scandal and injustice and waste of time and money, which would have been caused by trying the same question seventy-eight times over, so as to secure that which justice demands, viz., that there should be one fair trial of the issues between the parties. .... "The judge must have the power to control the proceedings before him so as to do justice to the parties. The order assumes, although it is not very carefully worded, that there will be a decision of the rights of the plaintiffs in Robinson v. Chadwick as against the defendants in that action, and if from any accident there is no trial of the right of the plaintiffs against the defendants in that action, it cannot be such a trial as was contemplated when the order was made." To prevent injustice in cases where one of the parties, &c., (') Amos v. Chadwick, 9 Ch. D. 459, 463, |