notice shall be filed in the registry, and the cause, unless the Judge Ordinary shall otherwise direct, shall come on in its turn.

It will thus be seen that all matters of fact may be expected to be allowed to be tried before a jury, although, as before shown, the Judge Ordinary in Marchmont v. Marchmont, threw doubt upon whether, in a judicial separation, a jury could be demanded; that an issue or issues may be sent into a common law court to be tried before a special or common jury; and that when the petitioner claims damages they must be ascertained in all cases by the verdict of a jury.

There have been numbers of cases, however, where a jury has not been impanneled, and from Norris v. Norris and Gyles, 27 L. J. 51, and notes thereto, it will be seen that generally the mode in which the petitioner for a dissolution of marriage will be directed to prove his or her petition when no answer has been filed, and twenty-one days have elapsed, as required by rule 14, is by oral evidence before the full court without a jury, Pearce v. Pearce, 27 L. J. 51, note; also in judicial separations, L. T.: a few cases have been tried upon affidavits, Armitage v. Armitage, Ling v. Ling, 27 L. J. 58, March v. March, 28 L. J. 30; and in a case where impotency was alleged: but in ordinary cases, Potts v. Potts, 27 L. J. 59, oral evidence with or without

a jury, may beg enerally expected to be ordered ; for in Norris v. Norris and Gyles, 27 L. J. 51, the Judge Ordinary held that there may be cases in which it would not be desirable that the evidence should be given orally in court: but, except in cases in which some strong reason can be shown against having recourse to that mode of trial, his Lordship thought it would be better that oral evidence should be required: also in Cooke v. Cooke and Quayle, the Judge Ordinary ordered the case to be tried on oral evidence, observing that it was a very wholesome rule to have oral evidence; in Rylance v. Rylance and Jones, Mills v. Mills, Walton v. Walton and Hibbert, 28 L. J. 31, notes, oral evidence was in each case required.

No cause is to be called on for hearing or trial until after the expiration of ten days from the day when the same has been set down as ready for hearing or trial, and notice thereof has been given, save with consent of all parties to the suit, rule 4, Second Rules and Regulations; and Sunday is not to be counted for one day, rule 5, Second Rules and Regulations.

It sometimes becomes a question of considerable importance as to which side has the right to begin; for if evidence is adduced on the other side, the side which commenced has the right to reply. And the party who begins, or his counsel, shall be allowed, in the event of his opponent not announcing at the close of the case of the party

who begins his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case and also to sum up the evidence (if any); and the right to reply shall be the same as at present, Com. Law Proc. Act, 1854, s. 18.

The right to begin is on that side which has to prove the affirmative issue, Cherry v. Cherry, 32 L. T. 198; Mercer v. Whall, 5 Q. B. 462: and the counsel for the respondent is entitled to address the court before the counsel for the corespondent, but this may be varied by agreement; but then the counsel for the respondent is not allowed to cross examine the witnesses for the co-respondent, Robinson v. Robinson and Lane, 31 L. J. 268. Counsel cannot compromise so as to prevent the opposite party from reopening the case. In Hayward v. Hayward, 32 L. J. 262, the Judge Ordinary said, "I think whatever arrangements may have been made between the parties, as the cause is still on the books, and the petition has not been dismissed, I ought to hear it; in cases of this sort I much doubt whether the court can sanction or consider any agreement between the parties." Vide also Studdy v. Studdy, 5 Jur. 22.

WITNESSES.

Previous to commencing any cause or suit, one most necessary and important question arises, as to how and by what means the facts relied upon as being sufficient in point of law are to be proved, so as to convince a jury or the judge. In this court the judge or judges can try and decide upon questions of fact, 20 & 21 Vict. c. 85, ss. 28, 29; Norris v. Norris and Gyles, 6 W. R. 640; Ling v. Ling and Croker, 6 W. R. 736; 31 L. T. 268.

When the trial is to be on oral evidence, with or without a jury, the question of who may or may not be witnesses necessarily arises; however, that difficulty has been greatly reduced of late years by the stat. 6 & 7 Vict. c. 85, c. 1, by which no person offered as a witness shall be excluded by reason of incapacity, from crime or interest, from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or proceeding civil or criminal, in any court. By 14 & 15 Vict. c. 99, s. 2, parties to suits, actions, or other proceedings in courts of justice, are made competent and compellable to give evidence for or against each other; however, parties to any action, either

for breach of promise of marriage, and to any suit in the Ecclesiastical Court, instituted by reason of adultery, are still excepted; Taylor on Evidence, 13th ed., vol. ii. 1052; Pyne v. Pyne, 27 L. J. 54, 1 S & T. 80.

By 21 & 22 Vict. c. 108, s. 11, in all cases now pending, or hereafter to be commenced, in which, on the petition of a husband for a divorce, the alleged adulterer is made a co-respondent, or in which, on the petition of a wife, the person with whom the husband is alleged to have committed adultery is made a respondent, it shall be lawful for the court after the close of the evidence on the part of the petitioner, to direct such corespondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her, Lane v. Lane and Robinson, 27 L. J. 91.

The petitioner is eligible as a witness in this court in any cause in which adultery is not alleged; and in a cause for judicial separation on the ground of desertion for two years and upwards is the best witness: but, then, it is better that she should be corroborated by other evidence. At present it seems an open question, whether a wife seeking a divorce on the ground of adultery and desertion would be allowed first to obtain a judicial separation on the ground of desertion, in which, as before stated, she can be a witness, and then proceeding for a divorce, prove the desertion