2. The like, where only one of several Defendants has suffered Judgment by Default (g). [Add to preceding form] and take notice that the jury who try the action [or issues] will at the same time assess the damages against the above-named E. F. upon the judgment by default. 3. Notice of Application for Leave to countermand Notice of Trial (h). [Formal parts as usual in application to Master] for an order that the plaintiff [or defendant] be at liberty to countermand the notice of trial given in this action on the day of 19-. [An order may be framed from the terms of the application, adding such terms as the Master thinks fit to impose.] 4. Notice of Countermand. [Title, &c., as in form No. 1, ante.] Take notice that pursuant to the leave of [Master], given by order dated, I hereby countermand the notice of trial [dated] given you in this action. Dated To Mr. Z., [defendant's] solicitor. Yours, &c., X. Y., short notice of trial; and shall be sufficient in all cases, unless otherwise ordered by the Court or a Judge. Short notice of trial shall be four days' notice, unless otherwise ordered." (g) See Ord. XXVII., r. 5, ante, p. 149. (h) By Ord. XXXVI., r. 19, "No notice of trial shall be countermanded except by consent, or by leave of the Court or a Judge, which leave may be given subject to such terms as to costs, or otherwise, as may be just." CHAPTER II. MODE OF TRIAL (a). 1. Notice by Defendant in Action within Ord. XXXVI., r. 2, to have Issues of Fact tried by Jury (b). Take notice that the defendant desires to have the issues of fact herein tried by a Judge with a jury. Dated the day of 19-. Yours, &c., M. Z., [Agent for D. S.], defendant's solicitor. To Mr. X. Y., plaintiff's solicitor or agent. 2. Application for Trial without Jury (c). [Formal parts as usual in application to Master] for an order that this action [or the following questions or issues of fact, namely, whether -] be tried by a Judge without a jury [on the ground that], and that the costs of this application be [costs in the cause]. Dated [&c., concluding as usual]. (a) The mode of trial is one of the matters with respect to which directions should be obtained, so far as practicable, upon the hearing of the summons for directions under R. S. C., Ord. XXX. See Ord. XXX., r. 2, ante, p. 155. Subsequent applications for directions as to the mode of trial should be made by notice under the original summons. See Ord. XXX., г. 5, ante, p. 156. (b) By R. S. C., Ord. XXXVI., r. 2, "In actions of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, the plaintiff may, in his notice of trial to be given as hereinafter provided, and the defendant may, upon giving notice within four days from the time of the service of notice of trial or within such extended time as the Court or a Judge may allow, or in the notice of trial to be given by him as hereinafter provided, signify his desire to have the issues of fact tried by a Judge with a jury, and thereupon the same shall be so tried." As to notice under this rule by the plaintiff, see ante, p. 335. (c) By Ord. XXXVI., r. 4, "The Court or a Judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to the passing of the principal Act could, without any consent of parties, have been tried without a jury." By r. 5, "The Court or a Judge may direct the trial without a jury of any cause, C.F. 22 3. Application for Trial by Jury (d). [Formal parts as usual in application to Master] for an order that this action [or the following issues of fact arising in this action, namely, whether -] be tried by a Judge with a jury, and that the costs of this application be [costs in the cause]. Dated [&c., concluding as usual]. 4. Order for Trial by Jury. [Formal parts as usual.] Upon hearing [the solicitors on both sides] [and upon ]: -]: It is ordered that [this action] be tried with a [special] jury [at the -'s instance], and that the costs of this application be [costs in the cause]. Dated the day of 19-. 5. Application for Order as to Special Mode of Trial (e). [Formal parts as usual in application to Master] for an order that this action [or the issues of fact arising in this action, or the following issues of fact arising in this action, namely, whether] be tried by a Judge sitting with assessors [or by an official referee, or by a special referee (with assessors), according to the mode of trial desired], and that the costs of this application be [costs in the cause]. Dated [&c., concluding as usual]. matter, or issue requiring any prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in their or his opinion conveniently be made with a jury." (d) Ord. XXXVI., r. 6 (as amended by R. S. C., Dec., 1885, r. 11), provides that "In any other cause or matter [see rr. 3, 4 and 5] upon the application, within ten days after notice of trial has been given, of any party thereto for a trial with a jury of the cause or matter or any issue of fact, an order shall be made for a trial with a jury." (e) By Ord. XXXVI., r. 7 (a), “In every cause or matter, unless under the provisions of Rule 6 of this Order a trial with a jury is ordered, or under Rule 2 of this Order either party has signified a desire to have a trial with a jury, the mode of trial shall be by a judge without a jury; provided that in any such case the Court or a Judge may at any time order any cause, matter, or issue to be tried by a Judge with a jury, or by a Judge sitting with assessors, or by an official referee or special referee with or without assessors." By r. 43, "Trials with assessors shall take place in such manner and upon such terms as the Court or a Judge shall direct." By r. 44, "In any cause or matter the Court, or a Judge of the Division to which the cause or matter is assigned, may, at any time, or from time to time, order the trial and determination of such cause or matter, or of any issue of fact, or partly of fact and partly of law, therein, by any Commissioner appointed in pursuance of the 29th section of the principal Act, or at the sittings to be held in London and Middlesex, and such cause, matter or issue shall be tried and determined accordingly." 6. Application that different Questions of Fact be tried by different Modes or at different times (ƒ). [Formal pars as usual in application to Master] for an order that the following question [or questions] of fact arising in this action, namely, whether, be tried by a Judge with a jury at, before the trial of the other questions of fact arising in this action [and that the said other questions of fact be tried subsequently by (the form will vary with each particular case)], and that the costs of this application be [costs in the cause]. Dated [&c., concluding as usual. 7. Order for Trial at Bar (g). [Formal parts as usual.] It is ordered that the trial of this action be had at the bar of this Court, on the day of now next ensuing [and that the costs of this application be costs in the cause.] 8. Notice of Trial at Bar. [Title of Court and cause and reference to record as usual.] Take notice that, pursuant to order of dated the 19-, this action will be tried at the bar of the Court, on day of at the Yours, &c., Y. Y., [Agent for P. S.], plaintiff's solicitor. To Mr. D. Z., defendant's solicitor [or agent]. (f) By Ord. XXXVI., r. 8, " Subject to the provisions of the preceding rules of this Order, the Court or a Judge may, in any cause or matter, at any time or from time to time, order that different questions of fact arising therein be tried by different modes of trial, or that one or more questions of fact be tried before the others, and may appoint the places for such trials, and in all cases may order that one or more issues of fact be tried before any other or others." 66 (g) By Ord. XXXVI., r. 9, “ Every trial of any question or issue of fact with a jury shall be by a single Judge, unless such trial be specially ordered to be by two or more Judges." As to trial at bar, see 1 Pr. 14th ed. 586. CHAPTER III. THE PLACE OF TRIAL AND CHANGES THEREOF (a). 1. Notice by Plaintiff fixing Place of Trial (b). [Title, &c., as usual.] Take notice that the place of trial in this action is Dated the day of 19-. Yours, &c., X. Y., [agent for P. S.], Plaintiff's solicitor. To the defendant, and to Mr. Z. his solicitor [or agent]. 2. Affidavit by Defendant's Solicitor, or his Clerk, to obtain Change of Place of Trial. 66 [Title, &c., as usual; see post, “ Affidavits.”] I, D. Z., of [solicitor's place of business], the solicitor [or (managing) clerk to Mr. T. S., of the same place, the solicitor] in this action for the above-named defendant, make oath and say as follows: 1. [It is usual to begin by saying] This action is brought to recover [&c., stating shortly for what the action is brought. If there is a counter-claim, it is advisable to add] The defendant by his defence and counter-claim herein, delivered the day of, 19-, seeks to recover [&c., stating shortly for what the counter-claim is made]. 2. [It is usual here to state shortly the stage which the action has reached, e.g.] Issue in this action was joined on the day of 19-. 3. Upon the instructions [and advice] which I have [or the said Mr. T. S. has] received, I verily believe that the defendant has a good defence to this action on the merits [and good cause for making his said counterclaim]. [If the solicitor's clerk be the deponent, it may be advisable to add, As (managing) clerk to the said Mr. T. S., I have had the conduct of the (a) The place of trial is one of the matters with respect to which directions should be obtained, so far as practicable, under R. S. C., Ord. XXX. See Ord. XXX., r. 2, ante, p. 155. Subsequent applications for directions as to the place of trial should be made by notice under the original summons. See Ord. XXX., г. 5, ante, p. 156. (b) By R. S. C., Ord. XXXVI., r. 1, “There shall be no local venue for the trial of any action, except where otherwise provided by statute. Every action in every Division shall, unless the Court or a Judge otherwise orders, be tried in the county or placed named on the statement of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appearance. Where no place of trial is named, the place of trial shall, unless the Court or a Judge shall otherwise order, be the county of Middlesex." |