TRIAL-continued.

(Non-appearance at Trial.)

Proof by Plaintiff of his Claim. If, when the action is called on, the plaintiff appears, but the defendant does not, the plaintiff may prove his claim, so far as the burden of proof lies on him (Ord. 36, r. 18).

Judgment for Defendant dismissing Action. If, when the action is called on for trial, the defendant appears and the plaintiff does not, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action (Ord. 36, r. 19).

Proof of his Counter-claim by Defendant. If the defendant has a counter-claim, then he may prove such claim so far as the burden of proof lies on him (Ord. 36, r. 19).

[The second part of this rule is based upon the

analogy of the procedure where the defendant does not appear; the plaintiff being, to all intents and purposes, the defendant to the counter-claim.]

Setting aside judgment for non-appearance at trial. Any verdict or judgment obtained where one party does not appear at the trial may be set aside by the Court or a Judge upon such terms as may seem fit, upon an application made within six days after trial. Such application may be made either at the assizes or in Middlesex (Ord. 36, r. 20).

Postponement or adjournment of trial. The judge may, if he think it expedient for the interests of justice,

(a) Postpone, or

(b) Adjourn

TRIAL—continued.

the trial for such time, and upon such terms (if any) as he shall think fit (Ord. 36, r. 21). Sometimes one party finds it necessary to apply for a postponement of the trial, and this is generally granted on showing good reason for the same; but it is generally granted on the condition that the applicant shall pay the "costs of the day." This means those costs which will have to be incurred again, such as the issuing fresh subpoenas, refreshers to counsel, &c.

Trials with assessors.

Trials with assessors are

to take place in such manner and upon such terms as Court or Judge may direct (Ord. 36, r. 28).

Directions by Judge as to mode of trial.

1. Without Jury.

The Court or Judge may (if it shall appear desirable) direct a trial without a jury

(a) Of any question or issue of fact, or (b) Partly of fact and partly of law, arising in any cause or matter which previously to the passing of the Act could, without any consent of parties, be tried without a jury (Ord. 36, r. 26). 2. By Judge and Jury.

The Court or Judge may, if it shall appear, either (a) Before the trial, or

(b) At the trial,

that any issue of fact can be more conveniently
tried before a jury, direct that such issue be tried
by a Judge and jury (Ord. 36, r. 27).

3. By a Commissioner or Commissioners.
The Court or a Judge may—

(a) At any time, or

(b) From time to time,

order the trial of any question or issue of fact, or

TRIAL-continued.

partly of fact and partly of law, by any commissioner or commissioners appointed in pursuance of the twenty-ninth section of the act, or at the sittings in Middlesex or London; and such question or issue shall be tried accordingly (Ord. 36, r. 29).

MOTION for new Trial.

(A.) After trial by jury. Where an action has been tried before a jury in the

1. Queen's Bench,

2. Common Pleas, or

3. Exchequer Division,

the application for a new trial shall be to a Divisional Court (R. S. C. Dec. 1876, r. 5).

(B.) After trial by Judge without a jury. Where the trial has been by a Judge without a jury, the application is to be to the Court of Appeal (R. S. C. Dec. 1876, r. 5).

Applications for new trials are to be by motion calling on the opposite side to show cause

(a) At the expiration of eight days from the date of the order, or

(b) So soon after as the case can be heard,

why a new trial should not be directed (Ord. 39, r. 1a).

Application to a Divisional Court, where trial has taken place in London or Westminster,

(a) To be made within four days after the trial,

or

(b) On the first subsequent day on which a Divisional Court, to which the application may be made, shall have sat to hear motions. [Unless the Court or a Judge shall enlarge the time] (Ord. 39, r. 1a).

MOTION for new Trial-continued.

Where trial has taken place elsewhere than in London or Middlesex. Motion to be made(a) Within seven days after the last day of sitting on the circuits for England and Wales during which the action shall have been tried; or (b) Within the first four days of the next following sittings, if such day occurs during or within a week immediately before a vacation. [Unless the Court or a Judge shall enlarge the time] (Ord. 39, r. 1a).

A copy of such order shall be served on the opposite party within four days from the time of the same being made (Ord. 39, r. 2).

A new trial shall not be granted on the ground of— (a) Misdirection, or

(b) Improper admission of evidence, or

(c) Improper rejection of evidence,

unless in the opinion of the Court some substantial wrong or miscarriage has been thereby occasioned (Ord. 39, r. 3).

If it appear to the Court that such wrong or miscarriage affects part only of the matter in controversy, the Court may

(1) Give final judgment as to part, and

(2) Direct a new trial as to the other part only (Ord. 39, r. 3).

A new trial may be ordered on any question in an action, whatever be the grounds for the new trial, without interfering with the finding or decision upon any other question (Ord. 39, r. 4).

An order to show cause shall be a stay of proceedings in the action, unless the Court shall order that it shall not be so as to the whole or any part of the action (Ord. 39, r. 5).

JUDGMENT (Entry of).

Except where otherwise provided by the acts or rules,

ENTRY of Judgment-continued.

the judgment is to be obtained by motion for judgment (Ord. 40, r. 1).

Every judgment shall be entered by the proper officer in the book to be kept for the purpose.

The party entering judgment shall deliver to the officer a copy of the whole of the pleadings in the action other than any petition or summons; such copy to be in print except such parts (if any) as are allowed to be written. by the rules (Ord. 41, r. 1).

No copy need be delivered of any pleading a copy of which has been delivered on entering any previous judgment in such action (Ord. 41, r. 1).

All judgments in the Queen's Bench, Common Pleas, or Exchequer Divisions shall, if entered in London, be entered in the central office (Ord. 41, r. 1a).

Where judgment is pronounced, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, and the judgment shall take effect from that date (Ord. 41, r. 2).

The cases where the Judge would decline to direct judgment to be entered at the trial, or where (though directing it to be entered) he would reserve leave to move, or where the party would apply to set aside the judgment, even without leave, are where there is a doubt as to which party is entitled to judgment. Usually there is no such doubt, and judgment is given in accordance with the verdict.

Where judgment is not pronounced, the entry of judgment is to be dated as of the day on which the requisite documents are left with the proper officer for the purpose of such entry, and the judgment shall take effect from that date (Ord. 41, r. 3).