Practice and Procedure

Evidence on Commission.

Cases often arise in which it is impossible owing to illness or absence to secure the attendance of a witness at the trial. In such circumstances the court has power (conferred by 0. 37, r. 5 et seq.) to direct that the evidence be taken anywhere before an officer of the court or any other person. It must be shown, however, that the witness will be unable to attend, either because of illness or because he is out of the juris diction, and cannot be compelled to attend by subpoena. Even a plaintiff may be allowed to give evidence on commission, but this is a privilege seldom granted. The evidence of the witness is written down and signed by him and can be put in at the trial. In certain foreign countries, where evidence cannot be taken on commission, it is secured by letters of request, which are sent through the Foreign Office.

Admission.—Although the pleadings show that everything is in issue in an action, it is competent for either party to give notice that he admits the truth of the whole or part of his opponent's case (0. 32, r. I). This secures the costs of proving those facts, and, if the whole cause of action is admitted, enables the party to whom the admission is made to apply for judgment (0. 32, r. 6). Apart from this, either party may give notice to the other to admit facts and if he refuses to do so unreasonably he may have to pay the costs of the necessary proof of those facts (ib. r4D• Similarly notice may be given to admit documents ; indeed the costs of proving any document may be disallowed if the notice is not given (0. 32, r. 3).

Special Case.-The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the court (0. 34, r. I), and the court may order a question of law to be decided either by special case or otherwise before any question of fact is tried (0. 34, r. 2).

Transfer and Consolidation of Action.-Action may be trans ferred from one division of the High Court to another, or from one judge to another by order of the lord chancellor but subject to the consent of the president of the division (0. 59, r. I). Causes depending in the same division may be consolidated with each other (0. 59, r. 8).

Application and Proceedings at Chambers.-All applications at chambers (i.e., before a master or a judge) are made by summons unless they are made ex parte, that is to say, by one side only. Applications at chambers generally are regulated by 0. 54, while

0. 55 prescribes the rules observed in chambers in the chancery division.

Proceedings in District Registries.-To meet the convenience of suitors who do not live in or near London, district registries have been established in various parts of the country. Proceed ings can only be taken in a district registry, in an action in which the writ has been issued out of that registry. Broadly speaking, the powers of a district registrar are similar to those of a master of the supreme court. In certain cases, however, where an action has been commenced in a registry the defendant can as of right have it moved to London, and the court has power in all cases to move an action from a registry to London or vice versa. (See generally 0. 35.) As to appeals from district registries see APPEAL. Proceedings by poor persons under the Matrimonial Causes Acts in district registries are provided for by 0. 35a.

Trial.-The places and mode of trial having been fixed by the order made on a summons for directions, the plaintiff must give notice of trial (0. 36, r. II), and if he fails to do so, within the time prescribed by the rules, the defendant may do so, or else apply to have the action dismissed for want of prosecution (0. 36, r. 12). Trial follows upon the completion of the steps necessary to bring the parties before the court and to adjust the issues upon which the court is to adjudicate, which may be summed up in the term pleading. In England the trial is usually in open court, and it is rare to try cases in camera, or to attempt to exclude the public from the hearing. In practice hearing in camera is only ordered where to try in open court would be to defeat the ends of justice. The essential part of the trial is that there should be full opportunity to both sides for evidence and argu ment on the questions in dispute. At present in England, as dis tinguished from the rest of Europe, the evidence is ordinarily taken viva voce in court, and affidavits and depositions are sparingly accepted, whereas under the continental system the bulk of the proofs in civil cases are reduced to writing before the hearing.

In the High Court of Justice in England several modes of trial are now used I. Trial by judge with a jury used in the king's bench division and in probate and matrimonial cases. There is a right to have a jury as a matter of course in actions of defamation, false im prisonment, malicious prosecution, seduction and breach of prom ise of marriage.