9. Order for such a Subpœna (ƒ).

[Formal parts as usual.] It is ordered that a writ of subpoena ad testificandum [or of subpoena duces tecum] do issue, commanding G. H., of —, in that part of the United Kingdom of Great Britain and Ireland called [Scotland], to attend the trial of this action, wherever he shall be within the United Kingdom, as a witness on the part of the plaintiff [or defendant] [and to bring with him and produce on the trial the following documents, namely, - (specify the documents. Omit this clause if a subpæna duces tecum is not required)].

Dated

10. Subpana in that Case.

[As usual, adding the notice at the foot of No. 2, supra.]

11. Affidavit to obtain Habeas Corpus ad Testificandum (g).
[Title, &c., as usual; see post," Affidavits."]

I, X. Y., of ——, solicitor in this action for the above-named plaintiff [or defendant], make oath and say as follows:

1. This action is set down for trial at [these present Middlesex sittings, or notice of trial in this action has been given for the next assizes to be held at in and for the county of ].

2. W. W., now a prisoner in custody in the gaol of [as the case may be], under sentence [or under commitment for trial at] for [state cause of imprisonment], is a material and necessary witness for

on

the trial of this action. [It should be shown that the prisoner is a material witness, by stating concisely, but clearly, in what manner his testimony will be material.]

3. I am advised and verily believe that cannot safely proceed to the trial of this action without the testimony of the said W. W.

(f) The order is obtained from a Master at Chambers upon application ex parte, supported by affidavit. It is not usually drawn up (see Ord. LII., r. 14).

(g) The 44 Geo. 3, c. 102, gives power to a Judge to order a habeas corpus ad testificandum. This writ is now used only in cases where a prisoner is in custody on civil process. A prisoner, who is a party to the action, may have the writ for the purpose of bringing himself up as a witness (Ex p. Cobbett, 3 H. & N. 155); but not merely for the purpose of conducting his case in person (Weldon v. Neal, 15 Q. B. D. 471). The writ is obtained by applying ex parte to a Judge at Chambers, upon an affidavit to the above effect. It is usual to state in the affidavit that the witness is willing to attend the trial as a witness, but this is not absolutely necessary.

By Ord. XXXVI., r. 35, “ Where a party is brought up to attend the trial or hearing of a cause or matter by virtue of any writ of habeas corpus duly issued from the Central Office, and by reason of the pressure of other business, or from any other cause, the trial or hearing of the cause or matter in which such party is concerned is postponed to a future day, a new writ of habeas corpus may be issued for such future day, if the Court or a Judge shall so direct, without payment of any fee."

4. The said W. W. is ready and willing to attend as a witness at the trial of this action [omit this if not according to the fact].

Sworn [&c., as usual; see post, "Affidavits"]. This affidavit is filed [&c., as usual].

12. Præcipe for Habeas Corpus ad Testificandum (h).

[Title, &c., as usual.]

Seal in pursuance of order [of -] dated the

a writ of habeas corpus ad testificandum directed to the

before

day of, 19—, to bring

Edward the Seventh, by the Grace of God, of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the Seas, King, Defender of the Faith, to [the keeper of our prison at ]:

We command you that you bring — prison under your custody, before day of, at the hour of

who it is said is detained in our

in the

to day until the above action is tried, to give And that immediately after the said

evidence you safely conduct him to the prison been brought.

Witness

Britain, the hundred and

at

on -day, the -—noon, and so from day evidence on behalf of the

shall have so given his from which he shall have

[name of Lord Chancellor], Lord High Chancellor of Great
day of
in the year of our Lord One thousand nine

for

[Indorse the writ thus:] This writ was issued by of -], solicitor for the

who resides at

14. Order for bringing up a Witness in Custody on Criminal Process (1).

[Title, &c., as usual.]

Upon reading the affidavit of [A. B.], filed the

day of

19-:

It is ordered that the keeper of his Majesty's prison at [name of the prison] shall have before [name the tribunal and place, as in form

(1) This form follows that given in R. S. C., App. G., No. 16.

(i) The 16 & 17 Vict. c. 30, s. 9, enables any Judge of the High Court of Justice,

No. 13, supra], on the

day of

19-, at

o'clock in the -noon, the body of [W. W.], a prisoner in his custody (as it is said), then and there to testify the truth and give evidence in this action on behalf of and so from day to day until his attendance as such witness shall be no longer required, and thereupon he be taken back without delay to the said prison and there detained until he be discharged by due course of law. Dated

"in any case where he may see fit to do so, upon application by affidavit, to issue a warrant or order under his hand for bringing up any prisoner or person confined in any gaol, prison or place, under any sentence or under commitment for trial or otherwise (except under process in any civil action, suit or proceeding), before any Court, Judge, Justice or other judicature, to be examined as a witness in any cause or matter, civil or criminal, depending or to be inquired of, or determined in or before such Court, Judge, Justice or judicature." An application for such order should be made ex parte to a Judge in Chambers, and must be supported by an affidavit similar to that in form No. 11, supra.

By the Prison Act, 1898 (61 & 62 Vict. c. 41), s. 11, the Home Secretary, on proof to his satisfaction that the presence of a prisoner at any place is required in the interests of justice, or for the purposes of any public inquiry, may by writing under his hand order that the prisoner be taken to that place." To obtain an order under this section, produce at the Home Office an affidavit similar to that in form No. 11, supra.

PART VII.

TRIAL, JUDGMENT, AND EXECUTION.

CHAPTER I. NOTICE OF TRIAL

II. MODE OF TRIAL

.

III. PLACE OF TRIAL AND CHANGES THEREOF
IV. PUTTING OFF TRIAL

XVII. ATTACHMENT

XVIII. CHARGING GOVERNMENT AND OTHER STOCKS, &c. 476
XIX. REGISTRATION OF LIS PENDENS

485

.

CHAPTER I.

NOTICE OF TRIAL.

[As to the notice of trial in an action without pleadings under R. S. C., Order XVIIIA., see post, Part XI., Chapter VII.]

Take notice of trial of this action [or of the issues in this action ordered

(a) By R. S. C., Ord. XXXVI., r. 11, "Notice of trial may be given in any cause or matter by the plaintiff or other party in the position of plaintiff. Such notice may be

to be tried, or as the case may be (b)] by a Judge [with a jury (c)] in Middlesex (d) [or at the next assizes (e) to be holden at

the county of

for the

or city and county of

in and for or town and county of or as the case may require, according to the place proposed for trial (b)] day of next (b) (ƒ).

given with the reply (if any) whether it closes the pleadings or not, or at any time after the issues of fact are ready for trial."

By r. 12, "If the plaintiff does not within six weeks after the close of the pleadings, or within such extended time as the Court or a Judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, or may apply to the Court or Judge to dismiss the action for want of prosecution; and on the hearing of such application, the Court or a Judge may order the action to be dismissed accordingly, or may make such other order, and on such terms, as to the Court or Judge may seem just."

By r. 15, "Notice of trial shall be given before entering the trial: and the trial may be entered notwithstanding that the pleadings are not closed, provided that notice of trial has been given."

(b) By Ord. XXXVI., r. 13, "Notice of trial shall state whether it is for the trial of the cause or matter or of issues therein; and [in actions in the Queen's Bench Division] the place and day for which it is to be entered for trial. It shall be in the form No. 16 in Appendix B., with such variations as circumstances may require."

By r. 13A," Order XXXVI., Rule 13 shall be read as if the words 'in actions in the Queen's Bench Division' were omitted therefrom."

The above form No. 1 is framed from that given in R. S. C., App. B., No. 16. The notice must be in writing (Ord. LXVI., r. 1). If given by the plaintiff it may be indorsed on the reply, in which case the title of the action may be omitted.

(c) In actions for slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage, the plaintiff, if he desire a trial by jury, should signify such desire in his notice. See Ord. XXXVI., r. 2, post, p. 337.

(d) By Ord. XXXVI., r. 16, “In London and Middlesex, unless within six days after notice of trial is given the trial shall be entered by one party or the other, the notice of trial shall be no longer in force."

By r. 17, "Notice of trial for London or Middlesex shall not be or operate as for any particular sittings; but shall be deemed to be for any day after the expiration of the notice on which the trial may come on in its order upon the list."

(e) By Ord. XXXVI., r. 18, "Notice of trial elsewhere than in London or Middlesex shall be deemed to be for the first day of the then next assizes at the place for which notice of trial is given."

Leave may be given to serve the notice of trial for a day subsequent to the commission day (Baxter v. Holdsworth, [1899] 1 Q. B. 266).

By r. 18A," In any case where it is found impracticable to give notice of trial in time for the first day of the Autumn or Easter Assizes respectively, at Manchester or Liverpool respectively, such notice shall be allowed for the second, third, or fourth day of such respective assizes; and in any case where notice could not have been given for any of those days at the Autumn Assize notice may be given for the 20th Nov. for trial at the resumed assizes in Manchester."

The resumed Assizes referred to in this Rule were abolished in 1897.

(f) By Ord. XXXVI., r. 14, “Ten days' notice of trial shall be given, unless the party to whom it is given has consented, or is under terms or has been ordered to take