And the jury, after this summing up, it they express a wish so to do, are permitted to withdraw from the court to consider their verdict, and they are kept until they are agreed; [and if they eat or drink at his charge for whom they afterwards find, that will vitiate the verdict (t). And if they speak with either of the parties (or their agents) after they have gone out of the jury box, or if they receive any fresh evidence in private, or if (to prevent disputes) they cast lots for whom they shall find, any of these circumstances will vitiate the verdict (u). In case the jurors do not agree before the judges are about to leave the assize town, though they are not to be threatened or imprisoned (r), yet the judges are not bound to wait for them, but may carry them round the circuit, from town to town, in a cart (y),]-an antient practice which was not at all unpleasant in the summer-time; but in our own days, if the jury are unable, within a reasonable time, to agree upon their verdict, the jury is, with or without the consent of the parties, discharged by the judge (z), or a juror is withdrawn by consent of the parties, so that no verdict is given (a).

(t) Hughes V. Budd (1840),

8 Dowl. P. C. 315; Morris v. Vivian (1842), 10 M. & W. 137. By the Juries Act, 1870 (33 & 34 Vict. c. 77), s. 23, the jury may (at the discretion of the judge) be allowed the use of a fire when out of court, and reasonable refreshment, to be procured at their own expense.

(u) In antient times, the principal remedy for reversal of a verdict unduly given was by writ of attaint; which was a proceeding for setting aside, by a jury of twenty-four, the verdict of a jury of twelve. The effect of which was, that if the first jury were found to have given a false verdict, they incurred infamy, with

imprisonment and forfeiture of their goods, which two latter punishments were, in course of time, commuted into a pecuniary penalty. This writ of attaint was as old as the reign of Henry the Second, and remained in force (though quite fallen out of use). till abolished by the Juries Act, 1825, s. 60.

(x) Mirrour, ch. 4, s. 24.

(y) 3 Bl. Com. p. 376, citing Lib. Ass. fol. 40, p. 11; and see 7 B. & S. 490; L. R. 1 Q. B. 305. (2) R. v. Charlesworth (1861), 1 B. & S. 460.

(a) Stodhart v. Johnson (1790), 3 T. R. 657; Harries v. Thomas (1836), 2 M. & W. 38; Gibbs v. Ralph (1845), 15 L. J. Ex. 7.

The jury, when they are all agreed, return back into their places, and by their foreman, deliver in their verdict, for the plaintiff or (as the case may be) for the defendant ; and if the verdict is for the plaintiff, they also, in actions where damages are claimed, at the same time assess the damages by him sustained in consequence of the injury of which he has made complaint ().

If there should arise at the trial, upon the facts proved, any difficult matter of law, the jury may find a special verdict, this proceeding being founded on the 13 Edw. I. ́ c. 30, s. 2 (c) ; and in a special verdict, the jury state the facts, as they find them to be proved, concluding conditionally, that if upon the whole matter the court should be of opinion that the issue ought to be found for the plaintiff, then they find for the plaintiff, and assess the damages accordingly, and if otherwise, then for the defendant. And there is also another method of finding a special verdict; and this is, when the jury find a verdict, generally, for the plaintiff, but subject to the opinion of the court on a special case, stated by the counsel on both sides, and containing a statement of facts mutually agreed

upon.

In case the judge should, at the trial, mistake the law, either in directing the jury or otherwise, counsel on either side might formerly have required him to seal a bill of

(b) By the Civil Procedure Act, 1833, s. 28, the jury may, upon the trial of any issue or inquisition of damages, allow interest, at the current rate, upon debts from the time when they were payable, if made payable by a written instrument, and at a time certain ; or if payable otherwise, then from the time when demand of payment shall have been made in writing, with notice that interest will be claimed (Mowatt v. Lord

S.C.-III.

2 R

Londesborough (1854), 4 El. & Bl. 1; Duncombe v. Brighton Club Company (1875), L. R. 10 Q. B. 371). And (by sect. 29) they may give damages in the nature of interest, in actions of trover and trespass de bonis asportatis, over and above the value of the goods; and also, in actions on policies of assurance, over and above the money insured.

(c) Mayor of Devizes v. Clark (1835), 3 A. & E. 506.

exceptions to his ruling (d), which bill of exceptions was afterwards dealt with in the old court of Exchequer Chamber (e); and although bills of exceptions have now been abolished (ƒ), yet the right of the parties to have the issues for trial properly submitted to the jury, with a full direction upon the law thereon, still continues, and may be enforced by an application to Court of Appeal (g).

Formerly the plaintiff was required to appear in court at the time when the jury delivered their verdict; and was liable to be amerced for a false claim (h), when he was nonsuited. In more modern times, it was still usual for a plaintiff, when he or his counsel perceived that he had not given evidence sufficient to maintain the issue, to be voluntarily nonsuited or to withdraw himself; whereupon the crier was ordered to call the plaintiff, and if neither he nor anybody for him appeared, the jurors were discharged, and the defendant had judgment of nonsuit and was entitled to his costs. After a nonsuit the plaintiff might have commenced the action again, which he could not have done after a verdict. Under the present practice, the plaintiff cannot elect to be nonsuited (); but if the judge considers the evidence insufficient he, after hearing it (k), gives judgment for the defendant.

(2.) Trial before a Judge.-A trial before a judge of questions of fact as well as of law, dispensing with a jury,

(d) 13 Edw. 1 (1285), c. 31. (e) The sufficiency in law of the facts proved at the trial to maintain the issues, might also formerly have been raised by a demurrer to the evidence; but that practice has been long discarded, in favour of an application for a new trial.

(f) Ord. XXXIX. rr. 3, 6; Ord. LII. fr. 2.

(g) Judicature Act, 1875, s. 22; Appellate Jurisdiction Act, 1876, s. 17; Cheese v. Lovejoy (1877), 2 P. D. 161.

(h) Finch, L. 189, 252.

(i) Fox v. Star Newspaper Co., [1898] 1 Q. B. 636.

(k) Fletcher's Case, [1892] 1 Q. B. 122.

was first introduced into the common law courts by the Common Law Procedure Act, 1854, though it had always been (as it still is) the usual practice in the Court of Chancery (now the Chancery Division) and in Admiralty. Under the Judicature Acts, this is one of the recognized modes of trial in all Divisions of the High Court, though either party may, in a proper case, obtain an order to have the facts tried by judge with a jury (1).

(3.) Trial before an Official or Special Referee.—It was provided, by the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), sections 3, 6, that if, at any time. after the issuing of the writ of summons in an action, it was made to appear to the court or a judge, that there was no preliminary question as to the defendant's liability, but that the matter in dispute consisted wholly or in part of matters of mere account, which could not conveniently be tried in the ordinary way, an order might be made, that such matter should be compulsorily referred to some arbitrator selected by the parties, or else to a Master or other officer of the Court (m). And by the Judicature Act, 1873 (36 & 37 Vict. c. 66), section 56, it was enacted, that, subject to the right of the parties to have disputed facts submitted to the verdict of a jury (n), any question arising in any cause or matter, other than a criminal proceeding by the Crown, might be referred for inquiry and report to an official or special referee (o), whose report (if

(7) Ord. XXXVI. rr. 3, 4, 5, 6; Sugg v. Silber (1876), 1 Q. B. D. 362; Ruston v. Tobin (1879),

10 Ch. D. 558; Hunt v. Chambers (1882), 20 Ch. D. 365.

(m) Browne v. Emerson (1856), 17 C. B. 361; Chapman v. Van Toll (1857), 8 El. & Bl. 396; Clow v. Harper (1878), 3 Ex. D. 198.

(n) Sugg 1 Q. B. D. 362.

(0) There are now three official referees who are permanent officers attached to the Supreme Court; and they perform the duties entrusted to them in such places, whether in London or in the country, as may be directed by order of court (Judicature Act, 1873, s. 83; Ord. XXXVI. rr. 45 -55).

adopted) might be enforced as a judgment (p); and (by sects. 57-59), that, with the consent of the parties, and, in certain cases, without such consent, any question or issue of fact or question of account might be ordered to be tried before an official or special referee, and in that case, his report should be equivalent to the verdict of a jury (q). These references are now, however, regulated by the Arbitration Act, 1889 (52 & 53 Vict. c. 49), which has modified section 56, and repealed sections 57 to 59, of the Judicature Act, 1873, besides repealing the Common Law Procedure Act, 1854, sections 3-17, and certain other Acts relating to arbitration. And now, under the Judicature Act, 1873, and the Arbitration Act, 1889, the law may be stated as follows. Subject to any right to have particular cases tried by a jury, the court or a judge may refer any question arising in any cause or matter, other than a criminal proceeding by the Crown, to any official or special referee, for inquiry and report; and the report. may be adopted, wholly or partially, by the court or a judge, and, if adopted, it may be enforced as a judgment or order to the same effect. And if all the parties interested (who are not under disability) consent, or if the cause or matter requires any prolonged examination of documents, or any scientific or local investigation which cannot, in the opinion of the court or a judge, conveniently be made before a jury, or conducted by the court through its other ordinary officers, or if the question in dispute consists, wholly or in part, of matters of account, the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before any special referee to be agreed on by the parties, or else before an official referee or officer of the court, in which latter case, the official or special referee is to be

(p) Dunkirk Colliery v. Lever (1878), 9 Ch. D. 20; Ord. XXXVI. rr. 45-55.

(q) Rowcliffe v. Leigh (1876), 3 Ch. D. 292; Leigh v. Brooks (1877), 5 Ch. D. 592.