30. The like, under Registration Act, 6 & 7 W. 4, c. 86, s. 38.

An exhibit marked X. being a copy of the entry, No. in the certified copy of entries of births [or deaths, or marriages] in the district of -, in the county of -, for the year (given under the seal of the General Register Office), by which it appears that A. was born [or died, or that A. and B. intermarried] on the

day of

-

Where the certificates are numerous they may be specified in a Schedule: see next form.

31. Exhibits specified in Schedule.

The affidavit of A. filed &c., and the several certificates therein referred to and specified in the Schedule hereto.

An exhibit marked X., being an extract from the entries contained in a paper kept at the India Office received by the Secretary of State in Council of India, from Fort William, in Bengal, being certified copies of the entries of baptisms at Calcutta, Fort William, Bengal, A.D. —, by which it appears that A. was baptised on the

day of

33. Death in Military Service in India.

An extract from a list of military casualties reported to Government, and received by the Secretary of State in Council of India from Fort William, in Bengal, whereby it appears that A. died on the of -, at

day

34. Shorter Form of entering Exhibits referred to in Affidavits or

An affidavit of -, filed the

Depositions.
day of

marked A., B., C., D. &c., therein referred to.

and the several exhibits

Note.-If the exhibits are accurately described, so as to identify them in the deposition or affidavit, the above form is sufficient; if not, or if for any reason a more particular entry is desired, the exhibits should be shortly described in the more exact forms above given.

VOL. I.

K

Endorsement by Registrar on Documents produced in Evidence.

In the High Court of Justice, Chancery Division. Mr. Justice X.

A. v. B.

This will [or indenture, or deed poll, or letter, or document] marked X., was read in evidence on the trial of this action.

Where produced to a Witness in Court.

In the High Court of Justice, Chancery Division. Mr. Justice X.

A. v. B.

C. D., Registrar.

The day ofThis exhibit marked X. was produced at the trial of this action [or the hearing of this petition, or motion, or summons], on the (cross-) examination C. D., Registrar.

of

The short title of the cause or matter should be always added, whether the exhibit is to be used in Court or in Chambers.

NOTES.

Causes or matters assigned to the Chancery Division are to be tried by a Judge without a jury unless the Court or a Judge shall otherwise order: O. XXXVI. 3; and the question whether a Chancery action shall be tried by a jury is absolutely within the discretion of the Judge: Gardner v. Jay, 29 Ch. Div. 50, although there are two causes of action, only one of which is specifically assigned to that division: Sheppard v. Gilmore, 34 W. R. 179; Lynch v. Macdonald, 37 Ch. D. 227; 36 W. R. 419.

As to trial by jury, see inf., Chap XXII., "Issues."

NOTICE AND ENTRY OF TRIAL.

By O. XXXVI. 11, notice of trial may be given by the Plt or other party in the position of Plt 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 by r. 12, if the Plt does not within six weeks after the close of the pleadings, or within such extended time as the Court or a Judge may allow, give notice of trial, the Deft may, before notice of trial given by the Plt, give notice of trial, or may apply to the Court or Judge to dismiss the action for want of prosecution.

A Deft cannot set the action down on motion for judgment: Litton v. L., 3 Ch. D. 794.

The six weeks is not a "time appointed for doing any act or taking any proceeding" within O. LXIV. 7, and cannot be abridged by the Court: Saunders v. Pawley, 14 Q. B. D. 234.

The notice of trial (ten days, except in cases by consent, see r. 14, and R. S. C. Appx. B., Form 16) must be given before entering the trial, and must state whether it is for the trial of the action, or of issues. therein, and is not to be countermanded, except by consent or leave given on such terms as to costs, or otherwise, as may be just: 0. XXXVI. 13, 14, 15, 19.

A notice of trial before a Judge in Middlesex, headed "V.-C. Bacon," was held sufficient: Gaines v. Arabon, V.-C. B., 22 March, 1879; and see Harris v. Gamble, 7 Ch. D. 877.

By r. 34, the Judge may postpone or adjourn the trial for such time, and upon such terms, if any, as he shall think fit.

As to trial before referees or with assessors, see Chapter XXVI., "ARBITRATIONS."

As to directing issues of fact to be tried before a jury, see Chapter XXII., "ISSUES."

Under O. XXXVI. 1, the Plt may lay the venue where he pleases, although the action is assigned to the Chancery Division by sect. 34 of the Jud. Act,

.

1873: Philips v. Beale, 36 C. D. 62; or to any Judge (r. 1a). The place of trial must be named in the original statement of claim: Locke v. White, 33 Ch. Div. 308.

Where the venue was laid at Liverpool, it was held that it was no sufficient ground to change it to Middlesex that the action was specially assigned to the Chancery Division: Philips v. Beale, 26 Ch. Div. 621.

In order to have the venue changed, the Deft must show serious injury to his case, and no injury to the Plt: Shroder & Co. v. Myers & Co., 34 W. R. (C. A.) 261.

Pressure of business at the assizes is not a sufficient ground for remitting the action to the Judge of the Chancery Division to whom it is assigned: Fairburn v. Household, 53 L. T. 513 (C. A.); and see Jackson v. Braithwaite, 63 L. T. N.S. 231.

Where the balance of convenience is that an action should be tried in London, the venue will, on the application of the Deft be changed to Middlesex, though the Plt has by his claim named another venue: Green v. Bennett, 32 W. R. 848; 50 L. T. N.S. 706; Powell v. Cobb, 29 Ch. Div. 486. Causes will not be heard in private without the consent of both parties, except in cases which affect lunatics, or wards of Court, or where the whole object of the suit would be defeated by a public hearing: Andrew v. Raeburn, 9 Ch. 522; Nagle-Gillman v. Christopher, 4 Ch. D. 173; Badische Anilin v. Levinstein, 24 Ch. D. 156; Mellor v. Thompson, 31 Ch. Div. 55; Malan v. Young, 53 J. P. 822.

THIRD PARTY.

Under O. XVI. 52, where a third party appears, the Deft giving the third party notice may apply for directions, and the Court or a Judge may, if satisfied that there is a question proper to be tried as to the liability of the third party, order the question, as between the third party and such Deft, "to be tried in such manner, at or after the trial of the action, as the Court or Judge may direct; and if not so satisfied may order such judgment as the nature of the case may require to be entered in favour of the Deit giving the notice against the third party."

The rules as to third parties do not apply to originating summonses: Re Wilson, A. G. v. Woodall, 45 Ch. D. 266.

No question can be determined between the third party and the Deft unless the order giving directions is obtained: Piller v. Roberts, 21 Ch. D. 198; and see Tritton v. Bankart, 56 L. J. Ch. 629.

If the third party on an application for directions declines to state any defence, judgment may be given against him: Gloucestershire Banking Co. v. Phillipps, 12 Q. B. D. 533.

In Coles v. Civil Service Supply Association, 26 Ch. D. 529, the form of order was that the third party, who did not admit his liability, should have liberty to appear at the trial, and take such part as the Judge should direct, and be bound by the result, and that the question of his liability to indemnify the Deft should be tried at the trial of the action, but subsequent thereto.

This form of order will be adhered to whenever it gives the third party all reasonable protection, as a Plt ought not to be embarrassed and put to expense by persons who are not necessary parties to his action being allowed to proceed as though they were Defts: Barton v. L. & N. W. Rail. Co., 38 Ch. Div. 144. Where such an order has been made the third party may appear by counsel and have the question tried immediately after the trial without having obtained directions as to pleadings or otherwise, as the Deft should obtain such directions if he desires them: Blore v. Ashby, 42 Ch. D. 682.

As to refusal to give directions, and dismissal of third party from the action where the Plt would be embarrassed by proceedings between him and the Deft giving the notice, see The Bianca, 8 P. D. 91; Schneider v. Batt, 8 Q. B. Div. 701.

The Court has power to order the third party to pay to the Plt the costs occasioned by his defence: Piller v. Roberts, 21 Ch. D. 198.

Where the Deft set up a defence which failed he paid the costs of the

action, but the third party being found liable to the Deft paid the costs of the third party proceedings: Blore v. Ashby, sup.

ENTERING THE ACTION FOR TRIAL-MARKING

"SHORT."

Actions for trial in the Chancery Division are set down at the Chancery Registrar's office upon production of a copy of the notice of trial, on the list of the Judge to whose Court the action is attached, and unless marked "short," or advanced by order, come on for trial in their turn.

Unless within six days after notice of trial is given the trial shall be entered by one party or the other, the notice of trial shall be no longer in force: O. XXXVI. 16; see Tonsley v. Heffer, 19 Q. B. D. 153. And when the cause is not entered for trial within the time limited, the Deft may move to dismiss for want of prosecution: Crick v. Hewlett, 27 Ch. D. 354.

A Deft cannot set down the action on motion for judgment: Litton v. L., 3 Ch. D. 794.

By O. xxxvI. 8, the Court or a Judge may in any cause or matter at any time, or from time to time, 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 places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others.

An application under this rule to have one issue in an action tried before another will only be granted on very special grounds: Piercy v. Young, 15 Ch. D. 475.

Under O. XXXVI. 4, 6, an action proper to be tried by a jury will be ordered to be so tried, though commenced in the Chancery Division: Coles v. Civil Service Supply Association, 26 Ch. D. 529; but the onus rests with the party desiring this mode of trial: Cardinall v. C., 25 Ch. D. 772; and that the Court has a discretion as to the mode of trial, see Coote v. Ingram, 35 Ch. D. 117.

All actions in which witnesses are to be examined before the Court must be certified as such by the Plt's solr, and thereupon will be so marked in the cause book. Usually special days or certain days of the week are fixed for the trial of actions and causes so marked.

Where any cause or matter becomes abated, or in the case of any change of interest under O. XVII., the Plt's solr must certify the fact to the proper officer, who will cause an entry thereof to be made in the cause book: O. XVII. 9. And by r. 10, any cause or matter standing over generally, or marked as "abated for twelve months, shall be struck out. But a cause may for special reasons be ordered to stand over generally, notwithstanding this rule: Brooke v. Todd, 6 Jur. N.S. 664; 2 L. T. N.S. 480. When a cause has been struck out under this rule, the notice of trial is no longer in force, and another notice of trial must be given before the Plt can re-enter the cause for trial: Le Blond v. Curtis, 33 W. R. 561; 52 L. T. N.S. 574.

Actions may be marked "short," without the consent of the solrs for the Defts, on production of the certificate of the Plt's counsel that the cause or action is fit to be so heard.

If a Deft who has not consented can show any fair reason why the cause should not be heard as short, it goes into the general list, but counsel's certificate is primâ facie ground for setting it down as short: Felstead v. Gray, 18 Eq. 92. When the Deft does not appear at the hearing, an affidavit of notice that it has been marked to be heard as short is required: Molesworth v. Snead, 11 W. R. 934. In Dymonds v. Croft, 24 W. R. 700, the notice filed as against a Deft (under O. XIX. 10) who had not entered appearance was held sufficient, although it did not state that the action had been marked short.

And unless by consent of all parties, it will not be marked so as to come on before the day for which the notice of trial has been given, or in the case of causes for further consideration, until after the expiration of ten days.

A cause is not fit to be heard short unless the evidence is by affidavit. Per M. R., W. N. (75) 193.

An action for rectification of a settlement is not proper to be heard as a short cause: Clennell v. C., W. N. (84) 14.

As to motions for judgment heard as short causes, v. inf. Chap. XIII., "MOTION FOR JUDGMENT."

By O. xxxvI. 30, the party entering the action for trial must deliver to the proper officer two copies of the whole of the pleadings, one of which shall be for the use of the Judge at the trial. The other is for the use of the registrar.

If the solr neglects to deliver the papers, he may be personally ordered to pay the costs occasioned thereby: see O. LXV. 5.

DEFAULT OF EITHER SIDE APPEARING AT THE TRIAL-O. xxxvI.

By O. xxxvI. 31, 32, "if when a trial is called on, the Deft does not appear, the Plt may prove his claim, so far as the burden of proof lies upon him"; and "if the Deft appears, and the Plt does not, the Deft, if he has no counterclaim, is entitled to judgment dismissing the action, but if he has a counter-claim, then he may prove such claim so far as the burden of proof lies upon him."

The Plt is always required to prove service of notice of trial on the Deft: Cockshott v. London General Cab Co., 47 L. J. Ch. 126; 26 W. R. 31; W. N. (77) 214; but see Chorlton v. Dickie, 13 Ch. D. 160; but Deft need not prove that notice of trial was served upon him: Re Palmer, Skipper v. S., 49 L. T. N.S. 553; 32 W. R. 83; Dacres-Patterson v. Foote, W. N. (90) 70.

An affidavit of service of notice of trial must have been filed and produced in Court when the action was called on, or at latest before the rising of the Court the same day: Lord Milltown v. Stuart, 8 Sim. 34; but see Seear v. Webb, 25 Ch. Div. 84; and now the original affidavit of service, stamped with a proper filing stamp, may be handed to the registrar, who will send it to be filed: see O. XXXVIII. 15.

By a communication from Cotton, L. J., dated 29th May, 1884, "the members of the Court of Appeal, after considering the subject of affidavits of service not sworn on the date of the order, think the registrars may, until an opinion of the Court is expressed to the contrary effect, accept affidavits of service sworn and filed at any time before the order is drawn up. But if the affidavit be sworn after the date of the order, the order is not to be postdated, and the affidavit is not to be entered formally as evidence. The registrars are in such a case to make a memorandum in the margin of the order that the affidavit has been sworn and filed, and the recital may be introduced into the order, no one appearing for A. B., although duly served, &c., as by affidavit appears.'

By O. XXXVI. 33, any verdict or judgment obtained where one party does not appear, may be set aside upon such terms as may seem fit, on application made within six days after the trial.

ENTERING EVIDENCE AS READ GENERALLY.

Every order contains a reference to the evidence on which it is made, and particularly notices the documentary evidence; generally specifying the nature of the document and its date, if any, or if it be referred to as an exhibit, either specially noticing the exhibit mark, or identifying the exhibit by reference to the affidavit or deposition.

Where the Deft is not called upon for his defence, but the Plt's action is dismissed on his own case, the Deft is entitled to have entered in the judgment as read all the evidence on which he intended to rely: Manby v. Bewicke, 3 Jur. N.S. 685; 5 W. R. 867; although the Deft's witnesses have not been cross-examined, as that may be done on appeal: Chabord v. New Russia Co., M. R., 26 July, 1871, A. 2362.

Where the Plt fails on his own evidence, and the action is dismissed, the usual course is not to enter the evidence as read, but provide for the costs of it by a special direction: see Singer v. Wilson, 2 Ch. Î). 448.

Affidavits used in support of an application ought to be entered as read, notwithstanding that they have been so entered in a chief clerk's certificate: Mutual, &c. Society (C. A.), 6 Aug. 1885.

It is not for the registrar to state what facts are proved, but only what evidence is admitted; and for the Court itself to say what facts are established by it: Trulock v. Robey, 2 Ph. 396.