(2) that no barrister accepts business upon a "Circuit" to which he does not belong, except for a special fee; (3) that all litigious business must come through a solicitor, though a barrister may advise a client, directly and personally, as to non-litigious matters (such as making his will, or a settlement of his property). [See the annual reports of the Bar Council. The resolutions of the Bar Council in matters of professional etiquette, conduct and practice are published in the Annual Practice, Part VI. Bar Councils, with similar powers, have been constituted in many of the Colonies.] A barrister's fee, like that of a physician, is an honorarium. It cannot be recovered by legal process; and, on the other hand, a barrister is not liable to an action for negligence. See ADVOCATE.

Bar Council or Bar Committee.-See BAR.

Bar, Plea in.-Under the old common-law system of pleading, pleas were divided into two main classes-1. Dilatory pleas, including pleas in abatement (see ABATEMENT), and pleas to the jurisdiction, which are sometimes but improperly described as pleas in abatement (Arch. Cr. Pl., 23rd ed., 162; Chit. Prec. Pl., 7th ed., 1868, pp. 280-287; Companhia de Moçambique v. British South Africa Co., [1893] App. Cas. 603). 2. Pleas in bar or peremptory pleas, averring facts, which, if supported by evidence, form a conclusive and substantial answer to the indictment or action, by barring the remedy, and not merely defeating, suspending or delaying the particular proceeding in which it is claimed (Baker and Leake, Prec. Pl., 3rd ed., 435; Arch. Cr. Pl., 23rd ed., 168).

The common-law rules as to the form of pleas in bar have ceased to apply to civil proceedings, but, subject to certain statutory modifications, still apply to proceedings on indictment or criminal information.

Bar, Trial at.-A trial at bar was formerly a trial before all the judges of one of the Superior Courts sitting in banc (q.v.) at Westminster. Prior to the Statute of Westminster 2 (13 Edw. 1. c. 10, repealed by 44 & 45 Vict. c. 59) all causes in the Courts of King's Bench and Common Pleas, with the exception of some minor ones which were disposed of before justices in Eyre, were so tried. That statute substituted the trial at Nisi Prius for all ordinary causes, and the trial at bar was left only for such matters "the which require great examination." The Act did not bind the Crown, and neither criminal cases nor civil actions to which the Crown was a party, could be sent down for trial at Nisi Prius without the consent of the Attorney-General.

After the Act it became a matter of course to award a writ of Nisi Prius in every case, unless either the Crown was a party concerned, and refused its assent, or the Court in its discretion thought fit to direct a trial at the bar, a direction which might more properly have been called a direction that there should be no award of Nisi Prius (R. v. Castro, 1874, L. R. 9 Q. B. 350).

The Judicature Acts have not had the effect of abolishing trial at bar even in civil matters, although no mention is made of this mode of trial either in the Acts themselves or in the rules made under them, so far as they relate to civil procedure (Anderson v. Gorrie, 1894, 10 T. L. R. 383; Dixon v. Farrer, 1886, 18 Q. B. D. 43). The provision for the trial of civil issues before two or more judges (which may take place anywhere) is a different thing (Dixon v. Farrer, supra). But in criminal cases the

grant of a trial at bar is specially provided for by the Crown Office Rules of 1906.

The only instance of a trial at bar in a civil case since the Judicature Acts came into force is the case of the A.-G. v. Bradlaugh, 1885, 14 Q. B. D. 667, but that was upon an information by the Attorney-General to recover penalties, and was not an ordinary civil action.

A trial at bar now takes place before a Divisional Court, which may be constituted of two or more judges (App. Jurisdiction Act, 1876, 39 & 40 Vict. c. 59, s. 17; Judicature Act, 1884, 47 & 48 Vict. c. 61, s. 4). In the only three cases which have occurred since the Judicature Acts came into force three judges sat (A.-G. v. Bradlaugh, supra; R. v. Jameson, 1896, 12 T. L. R. 551; [1896] 2 Q. B. 425; and R. v. Lynch, [1903] 1 K. B. 444). Only in this respect and in the fact that the trial takes place at the Royal Courts of Justice in London before a jury brought from the county where the venue is laid, does the trial at bar differ from other trials in the High Court. It can only be had in cases of very great public importance, and is of rare occurrence, for the Court has always been very reluctant to grant a trial at bar unless there is real necessity (Chit. Crim. Law, 497).

The Crown has a right by virtue of its prerogative to try its cause at bar (1579, Sav. 2; Cro. (3), 1633, 348), a right which extends to all cases even when the litigation is between subjects and the Crown is interested or has any right to interfere (Dixon v. Farrer, 1886, 18 Q. B. D. 43; see also R. v. Hales, 1728, 2 Stra. 816; Sir Samuel Astrey's Case, 1703, 2 Salk. 651; 6 Mod. 123).

It has been held that it has no right so to interfere where the prosecution of an indictment was being conducted by a private prosecutor (Anon., 1670, 1 Vent. 74).

And even upon an information filed by the Attorney-General ex officio, a trial at bar was refused because he did not allege that the prosecution was carried on at the expense of the Crown (R. v. Hales, 1728, 2 Stra. 816).

Although the Attorney-General was never bound to consent to a trial at Nisi Prius when the Crown was concerned, yet he could not prevent a trial at bar when the Court considered that it was reasonable to try it there (Sir Samuel Astrey's Case, supra).

To the subject it is entirely in the discretion of the Court to grant or refuse it (R. v. Carmarthen Burgesses, 1753, Say. 79), but the Courts have always been very reluctant to grant it unless there was a real necessity (Chit. Crim. Law, 497). At one time it was considered a sufficient ground if one of the parties was a judge or an officer of one of the Superior Courts (Morton v. Hopkins, 1669, 1 Sid. 407; Sir Samuel Astrey's Case, 1703, Salk. 651), or even a member of the bar (Sir Samuel Astrey's Case, supra); but in later times it was refused when the Lord Chancellor was the defendant and a solicitor was the plaintiff (Dimes v. Lord Cottenham, 1850, 5 Ex. Rep. 311; 19 L. J. Ex. 290); and since the Judicature Acts it has been refused in a case where the defendants were Colonial judges (Anderson v. Gorrie, ubi supra).

In that case it was pointed out that though the jurisdiction to grant a trial at bar in civil actions still remains, it was a jurisdiction which ought not to be lightly exercised, and was much modified by reason of the changes brought about by the Judicature Acts, such as there being now an appeal in civil matters to the Court of Appeal of the fullest kind on all grounds of law or fact, and the application for a trial at bar was

refused because the case did not present any feature of extreme importance or extreme difficulty. The first-mentioned reason, of course, does not apply in criminal cases.

It being in the discretion of the Court to grant or refuse a trial at bar, it follows that the Court may, as a condition of granting it, impose such terms as they may think fit (Homes v. Brown, 1780, Doug. K. B. 420; Lord Sandwich's Case, 1698, 2 Salk. 648; and see C. O. R. 152).

When the Court sat at Westminster a trial at bar could not be had where the venue was laid in the city of London, because the citizens were exempt by their charter from serving as jurors out of their city (Anon., 1694, 2 Salk. 644; Bambridge v. Castell and Another, 1729, 2 Stra. 856). And for the same reason it was doubtful if it could be had where the venue was laid in a County Palatine (Gally v. Clegg, 1752, Say. 47; R. v. Amery, 1786, 1 T. R. 363), or other exempt jurisdiction, such as Bristol (2 Lil. Abr. 750).

But such a trial was actually had in a city of London case, the jury consenting and waiving their privilege (Lockyer v. East India Company, 1761, 2 Wils. 136); and in a Crown prosecution arising out of the riots at Bristol, the venue was changed by consent from the city of Bristol to the county of Berks, and the case was tried at bar at Westminster before a jury from that county (R. v. Pinney and Others, 1832, 3 St. Tri. N. S. 17).

It has been granted even to a person who sued in formâ pauperis (Sherwin v. Clarges, 1698, 12 Mod. 318); but refused when moved for by the defendant because the plaintiff was poor (Lord Sandwich's Case, supra).

It used to be a rule not to grant a trial at bar until after issue joined (Lomax v. Holden, 1732, 2 Barn. K. B. 125; Cantillon v. Lord Montgomery, 1730, Fitz.-G. 267; R. v. Amery, 1786, 1 T. R. 364n.; Christchurch Case, 1725, 2 Stra. 696), except in cases of ejectment (Anon., 1754, Say. 155), because until then the Court could not well judge whether the issue would be a matter of difficulty or not (Borough of Christchurch Case, supra); but in the case of R. v. Jameson, 29th June 1896, the order was made before any plea was entered.

In criminal cases the practice with reference to a trial at bar upon the Crown side of the Court is regulated by the Crown Office Rules, 1886. It cannot be had except by order of the Court (C. O. R. 150), to obtain which an application must be made to a Divisional Court of the King's Bench Division. If made by the Attorney-General on behalf of the Crown the order is made absolute in the first instance as of course (C. O. R. 151), but if at the instance of the subject the application must be by motion for an order nisi (ibid.), supported by an affidavit showing very sufficient and strong grounds, such as extreme difficulty or extreme public importance, as above stated. The particular difficulty should be pointed out, as it is not sufficient to say generally that the cause is expected to be a difficult one (R. v. Carmarthen Burgesses, 1753, Say. 79).

If the prosecution be upon an indictment found elsewhere than in the King's Bench Division, it must first be removed thither.

The order will not be made absolute on the mere consent of the parties (Borough of Christchurch Case, 1725, 2 Stra. 696); and on making it absolute, as it is entirely in the discretion of the Court to do, such terms may be imposed on the applicant, as to payment of costs or otherwise, as the Court may think fit (C. O. R. 152; and see Holmes v. Brown,

1780, 2 Doug. K. B. 437). If the order be made absolute, it must be drawn up at the Crown Office and served upon the other side. When the case is ripe for trial, it must be entered at the Crown Office for hearing, and a day must be fixed for that purpose by application to a Divisional Court, if it has not already been fixed by the order for the trial at bar. A ten days' notice of trial, as in other cases on the Crown side, must then be given. The notice may be countermanded, by leave of the Court or a judge, with or without terms (C. O. R. 143). But in such case it would seem that there should be a new order for trial at bar (Cantillon v. Lord Montgomery, 1730, Fitz-G. 267).

The jury is almost invariably special, and is usually struck under the old practice, as provided for by the Crown Office Rules (C. O. R. 147; the mode of obtaining a jury under the old practice is described in Short and Mellor's Crown Office Practice, p. 213). It may be summoned, from the county in which the offence was committed, or from any other county not exempt by law, at any time after issue joined (C. O. R. 153; and see R. v. Pinney, 1832, St. Tri. vol. iii. col. 17n. (d); Dixon v. Farrer, 1886, 17 Q. B. D. 667, 18 Q. B. D. 43). If the offence was committed in a jurisdiction where the jurors are exempted from serving outside, by their charter or otherwise, the venue must be changed to a county from whence they may be brought, otherwise it would be a reason, as previously shown, for refusing a trial at bar. In the case of the Bristol Riots in 1832, the venue was changed from the city and county of Bristol to the county of Berks (R. v. Pinney, supra; and see Peirse v. Lord Fauconberg, 1757, 1 Burr. 292; Denn v. Lord Cadogan, 1757, 1 Burr. 273). The jury may be summoned by an order of Court, to be obtained at the Crown Office as of course, without motion in Court (C. O. R. 232). Such order must be lodged with the proper sheriff in sufficient time to allow of the jury being summoned six days before the trial (C. O. R. 153).

The applicant for the trial at bar must deliver at the Crown Office, four days before the day fixed for the trial, three copies of the roll upon which the trial is to take place, for the use of the judges at the trial (C. O. R. 154). These copies consist of copies of the record as far as the award of the jury, but it is not necessary that the roll itself should be carried in.

The trial, as above shown, takes place before a Divisional Court of the King's Bench Division at the Royal Courts of Justice, or wherever the Court may sit, and the jury, from wherever summoned, must attend at their peril (see Denn v. Lord Cadogan, supra).

If a sufficient number of jurors do not attend, the trial must be postponed, and a further number summoned (Denn v. Lord Cadogan, supra).

A tales cannot be prayed under the statute 6 Geo. IV. c. 50, s. 37, as the Act does not apply to trials at bar.

The trial may be continued de die in diem or adjourned to a subsequent day at any time in the discretion of the Court, without reference to the sittings of the High Court, without drawing up any formal order for the purpose (C. O. R. 155). Formerly such a trial could only be had in term, which necessitated the passing of an Act to remedy the inconvenience and difficulty (1 Will. IV. c. 70, s. 1, now repealed by 42 & 43 Vict. c. 59); but sec. 26 of the Judicature Act, 1873, now provides, subject to Rules of Court, for the sitting of the High Court and the judges thereof at any time and place.

The Master of the Crown Office, assisted by one of the clerks from the Crown Office, attends the trial, calls the jury, administers the oaths, marks and reads the documents produced in evidence, records the verdict, and draws up the judgment. The senior judge sums up the evidence, but each of the presiding judges has a right to direct the jury separately (see the trial of the Seven Bishops, 1688, 12 How. St. Tr. 478); and the senior puisne judge usually passes the sentence when a verdict of guilty has been returned; but in the recent case of R. v. Jameson, July 1896, this order was departed from, and the Lord Chief Justice passed the

sentence.

In criminal cases there is no appeal to the Court of Appeal, save for some error of law apparent upon the record (Jud. Act, 1873, s. 47), by writ of error; nor can a case be stated for the consideration of the Court for Crown Cases Reserved under 11 & 12 Vict. c. 78; but an application may be made, after conviction, to the Divisional Court for a new trial, whether upon the ground that the verdict was against the weight of evidence, or of misdirection, or with regard to the reception of evidence; or a motion may be made in arrest of judgment, as in other cases (4.-G. v. Bradlaugh, 1885, 14 Q. B. D. 667; Bright v. Eynon, 1757, 1 Burr. 395; R. v. Bewdly, its Bailiffs, etc., 1712, 1 P. Wms. 207; 24 E. R. 357).

Although the Crown Office Rules above referred to do not specifically apply to civil actions nor to proceedings on the Revenue side of the King's Bench Division, and though no rules have been made under the Judicature Acts in relation to such matters, when once a trial at bar has been awarded, either for the trial of a civil action or of an issue on the Revenue side, the trial is proceeded with in much the same manner as in a criminal case; but the application for the trial at bar must be made on a notice of motion to the other side (Anderson v. Gorrie, 1894, 10 T. L. R. 383), and not, as in criminal cases, for an order nisi. When a date has been fixed for the trial, notice of trial should be given as in other cases; and should the notice of trial be countermanded, a new order for trial at bar must be obtained (supra). In the case of civil actions in the King's Bench Division, the cause must be entered with one of the Masters at the Court Order Department, and copies of the issue should also be left there four days before the date fixed.

The action is tried before a jury of the county where the venue is laid (see Peirse v. Lord Fauconberg, 1757, 1 Burr. 292; Holmes v. Brown, 1780, 2 Doug. 437; and R. C. C., Order 36, r. 1, as to place of trial in general); and, as in criminal cases, and for the same reason, no tales can be prayed in the event of there being an insufficient number of jurymen (vide supra). One of the Masters on the civil side, assisted by clerks from the Court Order Department of the Associates' Department, attends, and acts as officer of the Court; but if the cause be one on the Revenue side of the Court, the King's Remembrancer (q.v.), assisted by clerks from the King's Remembrancer's Department, attends for that purpose; in which latter case, in addition to the respective pleadings delivered between the parties, each party must file a copy of his pleadings at the King's Remembrancer's Department for the purpose of being enrolled, and the trial takes place on the roll (Revenue Rules, 22nd June 1860, r. 130).

A new trial may be moved for in the same manner as in a civil action, and an appeal lies in like manner to the Court of Appeal (AttorneyGeneral v. Bradlaugh, supra).