Address to jury. Trial in the Chancery makes default, the rules provide that any verdict or judgment obtained in default of appearance, may be set aside by the Court upon such terms as may seem fit, upon an application made within six days after the trial (1). The judge has also a power "if he think it expedient for the interest of justice," to postpone or adjourn a trial for such time, and to such place, and upon such terms, if any, as he shall think fit (2). The rule as to speeches of counsel varies according to the circumstance whether the trial is with a jury or not. Upon a trial with a jury, the addresses to the jury are regulated as follows: The party who begins, or his counsel, is allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence, and the opposite party, or his counsel, is allowed to open his case, and also to sum up the evidence, if any. The rules provide that the right to reply shall be the same as heretofore, viz., the plaintiff has the right to reply if the defendant calls evidence, but if not he has no such right, and must be content with the second speech summing up the evidence, leaving the last word with the defendant. A trial is sometimes put an end to by the withdrawal of a juror (3). (See as to new trial, post, p. 875). On a trial in the Chancery Division with witnesses, the practice is as follows: The leading counsel for the plaintiff opens his case. The plaintiff's evidence is then put in, and the junior counsel sums up. If the plaintiff has shewn a prima facie case, the defendant's leading counsel then opens his case; the defendant's evidence is put in, and his junior counsel sums up. If necessary, the plaintiff's leading counsel replies (4). In a case decided in 1876 it was laid down that the High Court of Justice had no power to hear cases in private, even with the consent of the parties, except cases affecting lunatics or wards of court, or where a public trial would defeat the (1) The party applying will usually have to pay the costs incurred: Cockle v. Joyce, 7 Ch. D. 56. (2) Costs occasioned by adjournment must generally be paid by the party applying for the indulgence: Lydall v. Martinson, 5 Ch. D. 780. (3) See as to the effect of withdrawal of a juror: Thomas v. Exeter Flying Post Co., Ld, 18 Q. B. D. 822. () Kino v. Rudkin, 6 Ch. D. 163. The reason of this rule is there stated as follows: The trial of an action in the Chancery Division is not like a trial at Nisi Prius, it embodies two proceedings, the trial of the action, and a motion for judgment. It is the duty of the junior counsel to take notes of the judgment, so that in the event of an appeal, he may be able to inform the Court of Appeal of the ground on which the judgment was based, and costs will be refused, unless this is done. object of the action, as was suggested in Andrew v. Raeburn (1), or those cases where the practice of the old Ecclesiastical Courts in this respect is continued (2). With regard to the entry of judgment, three courses are open Entry of to the judge. He may, at or after the trial: (1) direct that judgment. judgment be entered for any or either party; or (2) adjourn the case for further consideration; or (3) leave any party to move for judgment. The Supreme Court of Judicature Act, 1890 (3), now provides that every motion for judgment in any cause or matter in which there has been a trial thereof, or any issue therein, with a jury, shall be heard and determined by the judge before whom such trial with a jury took place, and not by a Divisional Court, unless it be impossible or inconvenient that such judge should act, in which case such motion shall be heard and determined by some other judge to be nominated by the President of the Division to which the cause or matter belongs. No judgment may be entered after a trial without the order of a Court or judge (4). As many a case must necessarily come before the Courts in which the great desideratum for a proper decision of the point of controversy is a practical knowledge of some technical or scientific subject, an accurate acquaintance with the usages of a particular trade or business, or a minute investigation of books by some one familiar with the intricacies of accounts, elaborate provision is made by the rules for dealing with cases of this description by enabling the trial to be held with assessors, or empowering the judge to refer matters for the decision of commissioners or official referees (5). The mode in which evidence is given at a trial will be more appropriately considered when we come to treat of the subject of Evidence. For the present it will suffice to point out that evidence may be given either orally, i.e. vivá voce, or in the form of affidavit, which may be described as a written statement on oath (6). Evidence may be given by affidavit (a) where there has been a formal agreement in writing between the solicitors of all parties; (b) by order of the Court; (c) on motions, petitions, and summonses (post, p. 766); (d) in certain cases in Admiralty actions, (R. S. C., 1883, O. xxxvII., r. 2). () Law Rep. 9 Ch. Ap. 522. (2) Nagle-Gillman v. Christopher, 4 Ch. D. 173; and see Mellor v. Thompson, 31 Ch. D. 55, where, as the plaintiff stated that a public hearing would defeat the end of the action, and render success on the appeal useless to him, the order was made in invitum. (3) 53 & 54 Vict. c. 44, s. 2. (*) Sce as to form of affidavits, et seq. Difference between judgment in Chan cery Division and Queen's Bench Division. CHAPTER IX. JUDGMENTS. The attention of the reader may here be directed to the marked contrast which often exists between a judgment in the Chancery Division and a judgment in the Queen's Bench Division, a distinction arising from the different natures of the businesses with which the Divisions respectively deal. In the Chancery Division, as already pointed out, it is extremely usual for the judge at the trial, or on the motion for judgment, ex gr., in actions for administration, foreclosure, or redemption of mortgages, or for partition, to direct accounts and inquiries which are worked out in Chambers and the result embodied in a chief clerk's certificate. When this has been done, the action comes on again on further consideration, when the judge makes an order finally determining the respective rights of the parties to the litigation. In actions in the Queen's Bench Division, on the other hand, the trial and verdict end the matter, and the successful party proceeds to execution, though, as above mentioned, here, too, the judge has power in a proper case to refer the matter to an official or special referee, or obtain any necessary scientific or expert assistance. Moreover, it frequently happens, that when the parties are face to face before the judge they agree, though sometimes not without a certain element of judicial pressure, to refer their differences to arbitration, if the matter be one which cannot be conveniently investigated in the usual way. It will be convenient for us therefore here to notice the present law as to arbitrations and some of the usual proceedings which take place before or after judgment in an action, before we consider the various modes in which the judgment of the Court can be enforced (1). (1) The following definitions may serve to illustrate the statements in the text: A judgment at common law in an action for money, irrespective of any statute, is nothing more than a sentence of a Court of law, declaring the opinion of the Court that the plaintiff is entitled to recover a sum of money: Edwards on Execution. A judgment is a sentence or order of the Court, pronounced on hearing ARBITRATION. how made. All matters in controversy between parties may be referred Reference, by them to arbitration. The parties may refer not only existing differences, but also any future matters of dispute. The reference to arbitration (1) (which is usually called the submission) may be verbal or in writing, under hand or under seal, or by an order of Court. Any person may be appointed an arbitrator regardless of his capacity to deal with the matter in dispute. To quote an old illustration, two persons may agree to be bound by the opinion, on a point of law, of the gatekeeper of Lincoln's Inn. If, however, unknown to one or both of the parties, there is any bias or secret interest on the part of the arbitrator, he is unfit for the post, and his award is liable to be set aside. An arbitrator is practically a judge between the parties, and he should conduct his enquiry upon the same laws and in the same judicial spirit as is observed by the ordinary legal tribunals. The determination of an arbitrator or umpire is called an award (2). The award is binding and conclusive upon the and understanding all the points in issue, and determining the right of all the parties to the cause or matter. It is either interlocutory or final. But the most usual ground for not making a perfect judgment in the first instance is the necessity which frequently exists to make inquiries, or to take accounts, or sell estates, and adjust other matters, which must be disposed of before a complete decision can be come to upon the subjectmatter of the action: Daniell's Chancery Practice, vol. i. 6th ed. p. 785. A verdict is the unanimous decision of the jury on the point or issue submitted to them It is either general for the plaintiff or defendant, or special, stating all the facts of the case, and leaving it to the Court to pronounce the proper judgment. The final judgment is the sentence or order of the Court upon the cause or issues as appearing from the previous proceedings therein, and determining the rights of all the parties thereto : Hal. 141. (1) The mere fact that a person has to determine a point in controversy between two persons does not make him an arbitrator, within the Any person who can contract or (2) See as to notice of motion to set aside award, Re Gallop and Central Queensland Meat Export Co., 25 Q. B. D. 230. Arbitration. parties unless steps are taken to set it aside or refer it back to the arbitrator (1). The early history of arbitration shews that agreements to refer were looked upon with disfavour, so far as they were relied upon, as taking away from either of the parties his ordinary right of redress in a Court of law. On the ground of public policy it is a rule of law that any agreement to “oust the Courts of their jurisdiction" is void, and applying this rule, it was held again and again that an agreement to refer was not sufficient to oust the jurisdiction of the Courts, and is no bar to an action for the same subject-matter (2). Even the addition of a covenant not to sue in respect of the matter does not prevent the party from bringing his action (3). To evade these authorities a plan was introduced of stipulating that no right of action should arise to either party until the matter in dispute had been referred to an arbitrator and determined by him (4). The legislature finally interfered, and enabled the Courts in any case to stay proceedings which had been commenced contrary to an agreement to refer (17 & 18 Vict. c. 125, s. 11) (5). The tendency of modern legislation has been still further to favour the "domestic forum" of arbitration, and the several statutes relating to arbitration, extending from 9 & 10 Wm. 3, c. 15, to the present time, have been repealed, re-enacted, and extended in one Act, which received the Royal assent on the 26th of August, 1889, and came into operation on the 1st of January, 1890 (©), the principal provisions of which we shall now proceed to consider. The first twelve sections of the Act deal with references to arbitration by consent of the parties out of Court. The first section enacts that a submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a judge, and shall have the same effect in all respects as if it had been made an order of Court; and a (1) An award may be set aside or referred back on the following grounds, viz. :-(1) that it exceeds the submission; (2) that it does not extend to all the matters referred; (3) that it is uncertain; (4) that it is not final; or (5) that it is impossible, illegal, inconsistent, or unreasonable. (2) Thompson v. Charnock, 8 T. R. 139. (*) Horton v. Sayor, 4 H. & N. 643. (*) Scott v. Avery, 5 H. L. Ca. 812; Sharpe v. San Paulo Railway Co., L. R. 8 Ch. 507; and see Viney v. Bignold, 20 Q. B. D. 572, where it was held an action could not be brought on a fire policy until the condition precedent of the determination by arbitration of the amount due had been fulfilled. (5) Willesford v. Watson, L. R. 8 Ch. 480; Law v. Garrett, 8 Ch. D. 26; and see p. 130, et seq., Annual Practice, 1890-91, as to Arbitration generally. (*) 52 & 53 Vict. c. 49. |