The party who gives a notice to try the cause by a special jury Certificate has to pay all the expenses of it; and these expenses are not for costs o allowed as costs between the parties, unless the judge certifies on special jury. the back of the record that the cause was a proper one to be tried by a special jury (6 Geo. 4, c. 50, s. 34). The judge must certify immediately after a verdict, i. e., within a reasonable time after it is pronounced (Christie v. Richardson, 2 Dowl. N. S. 503). Where the judge's signature to a certificate, which he in court intimated his intention of giving, was not procured for some weeks after the trial, it was held that he had not certified in time (Grace v. Church, 3 G. & D. 591; see also Leech v. Lamb, 11 Exch. 437; also Serrell v. Derbyshire Railway Company, 10 C. B. 910; and per Cresswell, J., Skipper v. Bodkin, 8 W. R. 589, Prob.).

The costs of a special jury, if the judge certifies, necessarily depend upon the disposal of the general costs of the cause; see Walter v. Howell (L. J. 22, Ex. 96), where the doubt of Coleridge, J., in Dewar v. Swabey (11 A. & E. 913), is disposed of.

In a case where the question between the parties was solely one of law, and the facts were not in dispute, Abbott, C. J., refused to certify (Wemys v. Greenwood, 2 C. & P. 483). In an action for a libel in a newspaper, where special pleas were pleaded, Tindal, C. J., certified, stating that he would not have done so if there had not been such pleas (Roberts v. Brown, 6 C. & P. 757). In an action for penalties, Abbott, C. J., refused to certify, as the case not having been gone into, he could not certify on a mere view of the record (Orme v. Crockford, 1 C. & P. 537); sed quære, the general application of this principle.

See R. G., H. T. 1853, r. 46.

110. In London and Middlesex special jurors shall be nominated and reduced by and before the undersheriff and secondary respectively, in like manner as by the master before this act, upon the application of either party entitled to a special jury, and his obtaining a rule for such purpose; and the names of the jurors so struck shall be placed upon a panel, which shall be delivered and annexed to the nisi prius record, in like manner and upon the same terms as hereinbefore provided with reference to the panel of common jurors; and upon the trial the special jury shall be balloted for, and called in the order in which they shall be drawn from the box, in the same manner as common jurors.

As to the practice, see R. G., H. T. 1853, rr. 44, 45, 46, and note to preceding and following sections.

The rule referred to is granted upon a "hand" motion of counsel.

Upon writs of inquiry.

Special juries

in London and Middle

sex, how

struck.

tice of trial

111. Where the defendant in any case, or plaintiff Remedy for in replevin, gives notice of his intention to try the delay by nocause by a special jury, and the venue is in London or by special Middlesex, the court or a judge, if satisfied that such notice is given for the purpose of delay, may order that the cause be tried by a common jury, or make

jury.

Notice to sheriff of

trial by

such other order as to the trial of the cause as such court or judge shall think fit.

The court or a judge may either order the cause to be tried in its order (when, if no special jury is in attendance, it will be tried by a common jury), or directly order the cause to be tried by a common jury, which will probably only be done on affidavits of facts justifying such an order, as "the general right of the subject to try a case by special jury can only be touched by affidavit" (Per Pollock, C.B., Dunn v. Cox, 16 M. & W. 439). But a special jury rule does not deprive the party of his right to try by a common jury until a special jury has been struck. Where a cause had been set down for trial, and the defendant obtained a special jury rule, on which the jury was nominated, and on the same day the plaintiff obtained a judge's order that the cause should be tried in its order, unless a special jury were first struck; and no special jury being struck, the plaintiff tried by a common jury, it was held that the cause was properly tried (Dawson v. Smith, 1 L. M. & P. 151). It would seem, therefore, that the proper way to proceed in such a case, is to obtain an order that the cause be tried in its order, unless the special jury is previously struck. The Court of Common Pleas refused a rule nisi to discharge a rule for a special jury, where the jury had been nominated but not reduced (White v. Eastern Union Railway Company, 11 C. B. 575).

When a cause was set down for trial at the first sittings in term, and the defendant obtained a special jury rule, on an affidavit stating the pleadings, and showing that no notice had been given to the under-sheriff, and averring the deponent's belief that the rule had been obtained for delay, the court granted a rule nisi, calling on defendant to show cause on the third day of the sittings why the special jury rule should not be set aside on that day, unless the jury were previously nominated (Devanoge v. Borthwick, 2 L. M. & P. 277).

112. Where notice has been given to try by special jury, either party may, six days before the first day special jury. of the sittings in London or Middlesex, or adjournment day in London, or commission day of the assizes, give notice to the sheriff that such cause is to be tried by a special jury; and in case no such notice be given no special jury need be summoned or attend, and the cause may be tried by a common jury, unless otherwise ordered by the court or a judge.

In country causes, the plaintiff, after giving the defendant ten days' notice, must give the sheriff six days notice of his intention to try by special jury. In town causes the plaintiff must not only strike the jury under s. 110, according to the present practice, but must, in addition, give six days notice to the sheriff, otherwise his cause may be tried by a common jury.

So the defendant must, both in town and country causes, if the special jury has been obtained by him, give the sheriff the proper notice. The defendant's notice to the plaintiff must be more than six days (s. 109, n., ante), the notice to the sheriff, six days.

No special jury need be summoned, unless notice is given (see s. 113).

jury not sum

a common

113. In all cases where notice is not given to the If special sheriff that the cause is to be tried by a special jury, moned, cause and by reason thereof a special jury is not summoned to be tried by or does not attend, the cause may be tried by a com- jury. mon jury, to be taken from the panel of common jurors, in like manner as if no proceedings had been had to try the cause by a special jury.

As to this enactment, see Montague v. Smith (L. J. 21, Q. B. 73), and cases there cited.

rule without

writ.

114. A writ of view shall not be necessary or used, View to be by but, whether the view is to be had by a common or special jury, it shall be sufficient to obtain a rule of the court or judge's order, directing a view to be had; and the proceedings upon the rule for a view shall be the same as the proceedings heretofore had under a writ of view; and the sheriff, upon request, shall deliver to either party the names of the viewers, and shall also return their names to the associate for the purpose of their being called as jurymen upon the trial.

See R. G., H. T. 1853, rr. 48, 49.

Where it shall appear to the court to be proper and necessary that the jurors should have the view of the messuages, lands or place in question, in order to the better understanding of the evidence," the court may order," &c. (4 Anne, c. 16, s. 8). An order for a view will not be granted in an action for work and labour as a bricklayer: "The necessity of a view seems to apply chiefly to actions of a local nature, such as trespass qu. cl. fr., nuisances, and the like" (Parke, B., in Stones v. Menhem, 5 Exch. 382).

But see now C. L. P. A. 1854, s. 58.

Before applying the party must get from his opponent the name of his shower, and take it and that of his own shower, with a memorandum of the time fixed for the view, to the Master, that the rule or order may be properly drawn up, as an omission of the names will be irregular (Taylor v. Thompson, 1 Dowl. 218); and see Stones v. Menhem, supra. From the form there given an order under this section may be prepared.

before jurors

115. The jurors contained in such panels as afore- Proceedings said shall be the jurors to try the causes at the assizes so returned and sittings for which they shall be summoned re- same as bespectively; and all such proceedings may be had fore this act. and taken before such juries in like manner, and with the like consequences in all respects, as before any jury summoned in pursuance of any writ or writs

Defendant's right to try, upon default

tiff, preserved.

of venire facias juratores, distringas juratores, or habeas corpora juratorum, before this act.

TRIAL BY PROVISO.

116. Nothing herein contained shall affect the right of a defendant to take down a cause for trial, after of the plain- default by the plaintiff to proceed to trial, according to the course and practice of the court; and if records are entered for trial both by the plaintiff and the defendant, the defendant's record shall be treated as standing next in order after the plaintiff's record in the list of causes, and the trial of the cause shall take place accordingly.

Admission of documents.

The taking down a cause for trial by proviso is the mode by which a plaintiff is prevented from keeping a cause hanging over the head of a party for an indefinite time; and the court refused to make a rule for a stay of proceedings absolute, even after the defendant had become bankrupt and obtained his certificate (Whittaker v. Watson, 6 Dowl. 429).

See R. G., H. T. 1853, r. 42.

When a defendant must resort to this remedy, see s. 101, n.; and as to trial by proviso generally, see Dennis v. Dennis, 2 Wms. Saund. 336.

The defendant must give the plaintiff “notice of trial by proviso" as in ordinary cases (s. 97); but it was not necessary under the old practice to give a term's notice of proceedings where four terms had elapsed (Theobald v. Crickmore, 2 B. & A. 594; but the R. G., H. T. 1853, r. 171, seems now to require a month's notice in such a case.

If the defendant does not proceed to trial after notice, he will have to pay to the plaintiff the costs of the day (s. 99; King v. Pippett, 1 T. R. 696); and when both give notice, and neither tries, they are liable to each other for these costs, unless by consent of both the cause is made a remanet (Blow v. Wyatt, 4 M. & W. 407).

The defendant's record will stand in order after the plaintiff's in the list; but if the plaintiff has not given sufficient notice of trial, his entry will be of no effect, and the defendant may go to trial on his own; and if the plaintiff does not appear to it, he will be nonsuited (Brown v. Ottley, 1 B. & A. 253), which is the proper course to take; though if, instead of nonsuiting the plaintiff, the defendant takes a verdict, the court will, in general, only set it aside in order to enter a nonsuit (Hodgson v. Foster, 1 B. & C. 110).

ADMISSION OF DOCUMENTS.

And with respect to the admission of documents, be it enacted as follows:

117. Either party may call on the other party by notice to admit any document, saving all just excep

tions; and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the judge shall certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the master, a saving of expense.

A form of notice to admit is given by R. G., H. T., 1853, r. 29, Form of which see, post.

See as to abuse of such a form, Edmunds v. Great Western Railway Company, 12 C. B. 419.

See as to costs after neglect to give notice, or to admit upon notice, R. G., H. T. 1853, r. 30.

notice.

to notice to

admit.

These provisions apply to every document a party means to Extent of adduce in evidence, and are not confined to documents in his enactment as custody or control (Rutter v. Chapman, 8 M. & W. 387); in which case the costs of proving signatures to a petition for a charter, under 1 Vict. c. 71, s. 49, were not allowed, no notice to admit having been given; and "any document" includes, semble, a foreign judgment (Smith v. Bird, 3 Dowl. 310).

A party who proposes to adduce a document in evidence is bound, therefore, in every case, in order to entitle himself to the costs of proving it, to give a notice to admit, that the other party may have an opportunity of admitting it, and thus saving costs. And this rule applies to documents, the validity of which is directly in issue (Spencer v. Barough, 9 M. & W. 425); where the attorney on the other side, when applied to, had refused to admit, on the ground that the document was a forgery.

The court will rather enlarge than restrict the provisions of the section (Per Alderson, B., in Rutter v. Chapman, supra). So, where plaintiff's attorney was in possession of a probate of a will essential to the defendant's case, and on being called upon to give an undertaking to produce it, refused to do so, and the defendant then warned him that an exemplification of the will must be procured at a heavy expense, it was held that the defendant, who obtained the verdict, was entitled only to the expense of an ordinary copy, as he might have called on the plaintiff to admit a copy (Goldstone v. Tovey, 6 Bing. N. C. 274).

66

The admission is to be made, "saving all just exceptions." A Effect of adparty admitting his handwriting to a bill, is not precluded from mission. objecting to its admissibility in evidence on the ground of its being unstamped (Vane v. Whittington, 2 Dowl. N. S. 757). But where a party admitted a document described as a counterpart lease," and at the trial the instrument turned out to be a lease with a counterpart stamp only, he was considered precluded from taking the objection (Doe d. Wright v. Smith, 8 A. & E. 255). The admission of the mere signature will not dispense with the production of the bill at the trial (Vane v. Whittington, supra; see Chaplin v. Levy, 9 Exch. 531, where there was no reserve of just exceptions). Nor will the admission that the copy is a true copy dispense with the necessity of accounting for the non-production