ject to any statutory rule creating an exception (c), every witness, at the trial of any action or at any assessment of damages, must be examined virâ roce and in open court; although if the solicitors of all parties to an action agree, the evidence therein may be taken by affidavit. That such an agreement ought to be entered into in the majority of actions for partition and the like, as well as in all actions where the object of all the parties is to obtain a judicial decision upon facts as to which there is little if any dispute, is tolerably certain; but in all actions where the parties are at arms' length, it obviously is theoretically right that the witnesses should be examined vira voce and in open court. That affidavit evidence has its merits as well as demerits may be conceded, but the latter certainly outweigh the former. The two chief defects in affidavit evidence are, that the court has no opportunity of observing the demeanour of the witness while under examination, and that the version given of the story is too often that of the lawyer who prepares the affidavit rather than that of the deponent. The agreement to take the evidence by affidavit must be a formal one, and cannot be gathered from correspondence (d). If one of the parties to the agreement finds himself afterwards unable to procure affidavits by reason of the reluctance of his witnesses to make them, or from (c) E.g., the Bankers' Books Evidence Act, 1879, for which vide supra, p. 143. (d) New Westminster Brewery Co. v. Hannah, L. R., 1 Ch. D. 278; 24 W. R. 899. any other good cause, he must take out a summons to be relieved from the agreement, and the court can make an order that the reluctant witnesses be examined at the trial, or at the option of the other party discharge the agreement, and direct all the evidence to be taken vivâ voce (e). In one case where the agreement was that the evidence should be taken by affidavit, but the word "only" was not used, the plaintiffs gave notice to cross-examine some of the deponents, and failed to cross-examine one of them, the defendant's counsel claimed and was allowed to examine such deponent vivâ voce (f). Where the opposite party is entitled to cross-examine a witness his affidavit cannot be used for any purpose if the cross-examining party objects (g). An affidavit once filed cannot be withdrawn for the purpose of preventing the deponent's cross-examination (). Even where the parties have agreed that the evidence shall be taken by affidavit, the court can, if it thinks it necessary for the purposes of justice, decide that the evidence shall be taken vivâ voce (i). (e) Warner v. Mosses, L. R., 16 Ch. D. 100; 50 L. J., Ch. 28; 29 W. R. 201. (f) Glossop v. Heston Local Board, 26 W. R. 433; 47 L. J., Ch. 536. (9) Blackburn Guardians v. Brooks, L. R., 7 Ch. D. 68; 47 L. J., Ch. 156; 25 W. R. 57. (h) Ex parte Young, L. R., 21 Ch. D. 642; 51 L. J., Ch. 940; 31 W. R. 173. (i) Lovell v. Wallis, 53 L. J., Ch. 494. P. SS NEW TRIALS AND APPEALS. It is open to a defeated party (1) to appeal in all cases; (2) to move for a new trial when an adverse verdict has been found by a jury (k). It is, however, provided by the rules (1), that "a new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appear to such court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of the parties, the court may give final judgment as to part thereof, or some or one only of the parties, and direct a new trial as to the other part only, or as to the other party or parties." Where an appeal is preferred, it is provided by the R. S. C. 1883 (m), that "the Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such (4) Order 39, r. 1. further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the court." On this subject Jessel, M. R., in delivering judgment in the Court of Appeal in Sanders v. Sanders (n), said, "The appellant has applied for leave to adduce fresh evidence, but I am of opinion that it ought not to be granted. The application is for an indulgence. He might have adduced the evidence in the court below. he might have shaped his case better in the court below is no ground for leave to adduce fresh evidence before the Court of Appeal. As it has often been said, nothing is more dangerous than to allow fresh oral evidence to be introduced after a case has been discussed in court. The exact point on which evidence is wanted having thus been discovered, to allow fresh evidence to be introduced at that stage would offer a strong temptation to perjury." As a general rule, the Court of Appeal will not give leave to adduce any fresh evidence on an appeal which the party applying for leave might, if he had thought fit, and could, if he had used due diligence, have adduced in the court below. That (n) L. R., 14 Ch. D. 381; 51 L. J., Ch. 276; 30 W. R. 280. The R. S. C. 1883, also provide (o) that "when any question of fact is involved in an appeal, the evidence taken in the court below bearing on such question shall, subject to any special order, be brought before the Court of Appeal as follows:(a) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed; (b) as to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the court may deem expedient" (p). It is also provided, that "where evidence has not been printed in the court below, the court below or a judge thereof, or the Court of Appeal or a judge thereof, may order the whole or any part thereof to be printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall otherwise order" (2). Finally, it is provided, that "if, upon the hearing of an appeal, a question arise as to the ruling or direction of the judge to a jury or assessors, the court shall have regard to verified notes or other evidence, and to such other materials as the court may deem expedient” (1). (0) Order 58, r. 11. (2) Ibid. r. 13. |