Evidence. ciently stamped, is not to be received in evidence Law of until the whole or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, has been paid (s. 28). The officer of the court must give a receipt for the amount of the duty or deficiency which the judge determines to be payable, and also of the penalty, and thereupon the document will be admissible in evidence, saving all just exceptions on other grounds (s. 29). There is a class of documents which cannot be stamped after execution, even on payment of a penalty. It is thought that these instruments, if they could be stamped when the necessity arose, would not in general be stamped at all. These are not within the number of documents made admissible by the above enactment, which, it is expressly provided, is not to extend to any document which cannot now be stamped after the execution thereof (s. 29). Such are the alterations effected by the new statute in the law of evidence. They apply, as we have seen, to every Court of Civil Judicature in England, and cannot be regarded in any other light than as great improvements in the law, in every way desirable, and likely to conduce to the better administration of justice. CHAPTER X.-AMENDMENTS IN THE PRO- In a previous chapter I have mentioned the alterations in practice effected by the Common Law Procedure Act 1854, with reference to the numerous incidental applications that may be made to the courts in the course of an action; and I have explained briefly the means provided by the statute, for the examination of persons unwilling to give their evidence on affidavit. In another chapter I have endeavoured to analyse the procedure on an APFEAL, against the decision of the court, granting or refusing a new trial or leave to enter a verdict or nonsuit. The alterations in the law, and the proceedings by which these alterations are to be carried into effect, to which I have thus directed the attention of the reader, are not only important in themselves, but they form a substantive part of the recent legislation, and constitute, as it were, separate divisions of the extended jurisdiction now possessed by the Superior Courts. The Common Law Procedure Act, 1854, contains, however, various enactments, which simply alter or modify the existing rules of practice, or else supply the deficiencies, which experience has already pointed out in the recently-remodelled procedure of the courts. None of these were of sufficient importance to be treated of in separate chapters; and for that reason I thought it desira- New Trial. ble to reserve all mention of them to the last. They constitute the latest amendments in Common Law Procedure; but the effect of the enactments themselves may be stated very briefly indeed. New Trial. A new trial may be obtained on the ground of either the improper admission or the improper rejection of evidence; and when granted in consequence of a mistake in this respect on the part of the judge, the costs of the abortive trial fall almost always on the party ultimately unsuccessful. It is for the judge to admit or reject documentary evidence, when its admissibility is objected to; and, as is well known, one of the grounds of objection to such evidence most frequently stated is, that the document is not, or not sufficiently stamped. In the event of a document which is tendered in evidence being thus objected to, the judge must decide on the objection. If he holds that the document, not being stamped, requires a stamp, or being stamped, that it is insufficiently stamped, this ground of objection (which may be stated not only by a party in the cause, but ought now to be called to the attention of the judge, by the officer of the court who reads the document), may be immediately removed. One of the most important amendments in the Law of Evidence, effected by the new statute, is the provision permitting documents which require to be stamped, but which turn out to be either not stamped or insufficiently stamped, to be received in evidence, on payment to the associate of the stamp duty which the judge considers the document ought to bear, and the appropriate penalties. The section referred to provides for those cases in which the New Trial. judge decides that the document requires a stamp, or an additional stamp. Costs of Abortive Trial. The judge may, however, hold that the document tendered in evidence does not require a stamp at all, or if stamped, that it is already sufficiently stamped. If he does so, the evidence is at once admitted. Hitherto if the judge decided erroneously in either case, a new trial would be granted, if the document had been given in evidence. Where the stamp duty and penalties considered necessary by the judge are paid at the trial, it would be an abuse of the forms of justice to permit a new trial. It would be equally an abuse to grant a new trial after the judge had, upon consideration of any objection made to it, admitted the document; for, now that machinery for receiving the stamp duties on documents at the trial has been provided, every party, tendering a document in evidence, must be considered ready to pay any stamp-duty and penalties necessary to secure its admissibility. Accordingly no new trial can now be granted by reason of the ruling of the judge, that the stamp upon any document is sufficient, (which must be his ruling if the document be stamped at the trial), or that the document does not require a stamp (s. 31). The only other provision of the statute, connected with the subject of new trial, which need be mentioned here, is the enactment, that when a new trial is granted on the ground that the verdict was against the evidence, the costs of the first trial shall abide the event (s. 44). "In the "fallibility of human intelligence a judge may "sometimes take a wrong view on a question of "fact and by his observations lead the jury astray." Accordingly, when a new trial is granted for misdirection by the judge, the costs 66 of the first trial always abide the event of the New Trial. second. Hitherto, however, when a jury composed of men, equally if not more fallible than the judge who guided their decision, took a wrong view on a question of fact, and a new trial was granted, the payment of the costs of the first trial to the party who had been, though in the opinion of the court improperly, successful, was a necessary preliminary. In the case of either judge or jury taking a wrong view, it is clear that injustice is done, or supposed to be done, to one of the parties, without any fault on his part. He will no longer be punished for an error committed by the jury, any more than he has hitherto been for one committed by the judge. Since the abolition of the writ of venire facias juratores, which commanded the sheriff to summon the jurors for the trial, the award of a venire de novo is termed an award of a trial de novo. A trial de novo is awarded when, owing to some Trial de novo irregularity or defect in the proceedings themselves, the proper effect of the first venire (or coming together of the jury) had been frustrated. Thus, if a challenge had been wrongly disallowed, the jury was incomplete, and the verdict a nullity;-so, if the jury was improperly chosen ; -so, if the verdict given was uncertain or ambiguous. Accordingly, when the unsuccessful party at the trial objects to the verdict on technical grounds (rather than on the merits), he may apply for and obtain a trial de novo. The court may be wrong, however, in awarding a trial de novo. An appeal, we have seen, has been provided from their decision, giving or refusing a new trial, which is awarded on the merits of the case (ante, p. xliv.) In the same way, but principally to remove a doubt on the subject, it is specially enacted that upon an award of a trial de novo, upon matter appearing on the record, |