Settlement.

Surrender.-Transfer of Cost-Book Mine Shares. 255

Provided as follows:-(1.) Where, in the case of a policy of insurance, no provision is made for keeping up the policy, the ad valorem duty is to be charged only on the value of the policy at the date of the instrument; (2.) If in any such case the instrument contains a statement of such value, and is stamped in accordance with such statement, it is, so far as regards such policy, to be deemed duly stamped, unless or until it is shown that such statement is untrue, and that the instrument is, in fact, insufficiently stamped."

Surrender.

"Surrender of copyholds. See Copyhold," ante, p. 237.

"Of any other kind whatsoever not chargeable with duty as a conveyance on sale or mortgage :-10s."

Where some of the executors of a tenant from year to year signed an instrument "renouncing and disclaiming, and also surrendering and yielding up" to the landlord all right, title, &c., in the premises; and the landlord thereupon brought ejectment; held that such instrument was a surrender and not a disclaimer, and therefore could not be put in evidence for the plaintiff without a surrender stamp. Doe d. Wyatt v. Stagg, 5 N. C. 564.

แ

Transfer of Shares in Cost-Book Mine.

Transfer. Any request or authority to the purser or other officer of any mining company, conducted on the cost-book system, to enter or register any transfer of any share, or part of a share, in any mine, or any notice to such purser or officer of any such transfer :-6d."

Adhesive Stamp.] Sect. 128. (1.) This duty "may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the request, authority, or notice is written or executed."

The cost-book mine companies referred to in this act are certain unregistered companies or partnerships, within the Stannaries of Devon and Cornwall. Such companies elsewhere must, if consisting of more than twenty members, be registered and incorporated under the Companies Act, 1862, see sect. 4. Whether the company be such a cost-book company is a question of fact and not a matter of law. See ante, p. 80. As to what constitutes such a company, see the Introductory Notice to Procedure of the Stannary Court, ed. 1856, and Collier on Mines, 2nd. ed., Ch. 3; and the Stannaries Act, 1869 (32 & 33 Vict. c. 19). The written request, or notice mentioned in the Stamp Act, 1870, is the usual (but not the only) form of transfer shares in such a mine. See Toll v. Lee, 4 Exch. 230, cited ante, p. 236, where the mine was, in fact, a cost-book mine.

Warrant of Attorney.

"Warrant of attorney to confess and enter up a judgment given as a security for the payment or repayment of money, or for the transfer or retransfer of stock. See Mortgage, &c." ante, p. 244.

"Warrant of attorney of any other kind :—10s."

Warrant for Goods.

See Delivery Order, ante, p. 239.

COURSE OF EVIDENCE AND PRACTICE AT NISI PRIUS.

Prior to the C. L. P. Act, 1854, trials were always held before a judge and jury. Under sect. 1 of that act, a trial might by consent of the parties and leave of court take place before a judge alone. Now under Rules 1883, O. xxxvi., r. 7, the mode of trial is in general 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 with or without assessors. By r. 2, in actions of slander, libel, false imprisonment, malicious prosecution, seduction, or breach of promise of marriage, either party is entitled on notice to have a trial by jury. By r. 3, causes or matters assigned by the J. Act, 1873, s. 34, to the Chancery Divison, shall be tried by a judge without a jury unless the court or a judge shall otherwise order. By 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" J. Act, 1873, "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, 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." By r. 6, "in any other cause or matter upon the application 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." By 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." By 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.'

Trials before referees are subject to the provisions of the J. Act, 1873, ss. 57, 58, post, pp. 260, 261, where the decisions on these sections are collected.

Before whichever tribunal the cause is tried the rules of practice at the trial are nearly the same.

The following was the course of practice before the C. L. P. Act, 1854 :When the jury was sworn, the junior counsel for the plaintiff opened the pleadings; after which, if the proof of the issue rested on the plaintiff, the senior counsel stated the case to the jury, and after witnesses had been examined in support of it, the counsel for the defendant was heard. If he called any witness, the plaintiff's counsel had the general reply.

By Rules 1883, O. xxxvi., r. 36 (which replace the C. L. P. Act, 1854, s. 18, in similar terms), it is provided that, "upon a trial with a jury, the addresses to the jury shall be regulated as follows: the party who begins, or his counsel, shall be allowed at the close of his case, if his opponent does not announce any intention to adduce evidence, to address the jury a second time for the purpose of summing up the evidence; and the opposite party, or his counsel, shall be allowed to open his case, and also to sum up the evidence, if any, and the right to reply shall be the same as heretofore."

This rule merely allows the defendant's counsel to sum up his evidence, and does not permit the counsel to comment generally on the case; Gilford v. Davis, 2 F. & F. 23; but it must be observed that the summing-up usually amounts to a general reply. Where a counsel has not announced

Practice at Nisi Prius.

257

his intention to adduce evidence, in consequence of which the party who began sums up his case, he cannot afterwards be permitted to alter his mind and adduce evidence. Darby v. Ouseley, 1 H. & N. 1; 25 L. J., Ex. 227. The same course of practice is usually adopted on a trial before a judge alone; Metzler v. Wood, 47 L. J., Ch. 139, M. V.-C.; one counsel only being heard on questions of fact; S. C.; Conington v. Gilliat, 1 Ch. D. 694. As to the practice peculiar to Fry, J., see King v. Rudkin, 6 Ch. D. 160, 163. A trial before à referee is conducted in the same manner as a trial before a judge. Rules, 1883, O. xxxvi., r. 49, post. p. 261. Where there are several issues, some of which are incumbent on the plaintiff and others on the defendant, it is usual for the plaintiff to begin and to prove those which are essential to his case; Jackson v. Hesketh, 2 Stark. 521; the defendant then does the same; and the plaintiff is then entitled to go into evidence to controvert the defendant's affirmative proofs. The defendant's counsel is entitled to comment by way of reply upon such last-mentioned evidence in support of his own affirmative; and the plaintiff's counsel has a general reply. Where the judge decides that there is no evidence to go to the jury on the plaintiff's case, his counsel will not be entitled to sum up. Hodges v. Ancrum, 11 Exch. 214; 24 L. J., Ex.

257.

It was formerly laid down as a general rule, that when, by pleading or notice, the defence is known, the counsel for the plaintiff is bound to open the whole case in chief and cannot proceed in parts, unless some specific fact be adduced by the defendant to which the plaintiff can give an answer; and that he cannot go into general evidence in reply. Rees v. Smith, 2 Stark. 31. And this appears to be still the rule where a single fact or transaction forms the whole subject of dispute between the parties on the pleadings, which is affirmed on one side and denied on the other. Thus, where the plaintiff's title to a mine was in issue, and the plaintiff relied on primâ facie evidence from possession, he was considered not to be entitled to support his case in reply by general evidence of his title. Rowe v. Brenton, 3 M. & Ry. 139, 281 (on a trial at bar; but the objection was waived by the defendant); Lacon v. Higgins, 3 Stark. 178. But where the defendant traverses, and also justifies, the plaintiff may reserve his case on the justification until the defendant has proved it. Browne v. Murray, Ry. & M. 254, and note Ib. Or he may enter upon the disproof thereof in the first instance; in which case he will not be allowed to give further evidence of the same kind in reply. Ib.; Accord. Shaw v. Beck, 8 Exch. 392. And plaintiff is entitled so to reserve his answer to the defendant's case, although his witnesses have been cross-examined so as to disclose the nature of the defence relied upon. Ibid. Upon the trial of issues in a patent case, the plaintiff was held entitled to call evidence in reply for the purpose of rebutting a case of prior user set up by the defendant. But after the evidence for the defence was summed up, the defendant was not allowed to adduce further evidence in answer to that given by the plaintiff in reply. Penn v. Jack, L. R., 2 Eq. 314.

The general rule was recognized in Jacobs v. Tarleton, 11 Q. B. 421, where in an action against acceptor, the issue was on the indorsement of a bill to the plaintiff. The plaintiff proved the handwriting of the indorser: the defendant è contra, gave evidence that the plaintiff was too poor to have given value for the bill; that he had disclaimed knowledge of it, and had denied any authority from himself to bring the action in reply the plaintiff offered proof that he was able to discount, and had in fact discounted the bill; it was held that the proof in reply was merely confirmatory and ought not to have been received. It is observable on the report of this case that neither the evidence in defence nor in reply seems to have

VOL. I.

S

been pertinent to the issue: but another report (17 L. J., Q. B. 194) shows that fraud and want of consideration by the plaintiff were also in issue on the record. In Wright v. Wilcox, 9 C. B. 650; 19 L. J., C. P. 333, it was held that the plaintiff might, and (ut semble) ought to, be allowed to explain by evidence a fact, which appears for the first time on the defendant's evidence; and that the judge has a discretion in admitting evidence in reply. And where the judge allowed the plaintiff to put in additional proof of title at the close of the case, and when he was about to sum up, the court above refused to interfere with his discretion. Doe d. Nicoll v. Bower, 16 Q. B. 805.

Where a party tenders documentary evidence prima facie admissible, the other party will not, except under the rule mentioned below, be allowed to interpose with evidence for the purpose of excluding it. Thus, where plaintiff tendered an examination of defendant taken before bankruptcy commissioners, the defendant was not permitted to call witnesses to prove, before the examination was read, that it was incomplete, and therefore inadmissible. Such evidence, if not obtained by cross-examination, must be postponed as part of the defendant's case. Jones v. Fort, M. & M. 196. But evidence to disprove possession of an instrument, of which secondary evidence is tendered; Harvey v. Mitchell, 2 M. & Rob. 366; or to show that a contract about which the witness is questioned is in writing; Cox v. Couveless, 2 F. & F. 139, Martin, B.; may be given immediately.

It seems that under Rules, 1883, O. xxxi., r. 15 (ante, p. 13), the opposite party may show that the document sought to be put in evidence was referred to in the pleadings or affidavits of the party seeking to put it in, and was not produced on notice, and is therefore inadmissible, unless the non-production be excused under the rule. See Quilter v. Heatly, 23 Ch. D. 42, C. A., explaining Webster v. Whewall, 15 Ch. D 120.

Where the judge has expressed an opinion adverse to the admissibility in evidence of a document, the counsel seeking to put it in must formally tender it in evidence and require a note to be taken of the tender, and if this course is neglected the rejection cannot afterwards be relied on. Campbell v. Loader, 34 L. J., Ex. 50.

Both parties are bound by the view taken of their respective cases, and the mode of conducting them, by their counsel at the trial; and they cannot move for a new trial upon grounds omitted to be urged at Nisi Prius. See Doe d. Gord v. Needs, 2 M. & W. 129; Henn v. Neck, 3 Dowl. 163; Short v. Kalloway, 11 Ad. & E. 28; Haslor v. Carpenter, 3 C. B., N. S. 172. And where counsel offers evidence for one purpose which the judge rejects, he will not, after the trial, be permitted to rely upon it as admissible for another purpose. R. v. Grant, 5 B. & Ad. 1081. Nor can he complain of misdirection upon a point which he has, in effect, waived at Nisi Prius. Robinson v. Cook, 6 Taunt. 336. And, misstatements of facts by the judge should be adverted to by counsel at the time, though counsel need not object to the law as laid down by him. Payne v. Ibbotson, 27 L. J., Ex. 341. And, where evidence has been admitted, without objection, as relevant to the issue, it cannot be objected to as inapplicable after the judge has begun to sum up. Abbott v. Parsons, 7 Bing. 563. Where the judge has, in the opinion of counsel, omitted to submit some material point or view of the case to the jury, be ought, it seems, to be reminded of it. Magor v. Chadwick, 11 Ad. & E. 584, 585; Wedge v. Berkeley, 6 Ad. & E. 663. But counsel will not, it is apprehended, be taken to have acquiesced in the summing up of the judge in point of law, merely because he has not interposed at the time. See Hughes v. Gt. W. Ry. Co., 14 C. B. 637 ; 23 L. J., C. P. 153, per Cresswell, J. Where the point relied upon by counsel has been distinctly brought under the notice of the judge in the course of the cause

it would be very inconvenient to require that counsel should again advert to it, by way of protest, while the judge is charging the jury.

A party appearing in person must, examine the witnesses as well as address the jury. Shuttleworth v. Nicholson, 1 M. & Rob. 254. The party in person may conduct his own cause, examine witnesses, and give evidence in his own favour. Cobbett v. Hudson, 1 E. & B. 11; 22 L. J., Q. B. 11. But his wife cannot claim to conduct it in his absence. S. C. 15 Q. B. 988. A barrister has no privilege to be heard both personally and by his counsel in his own cause. Newton v. Chaplin, 10 C. B. 356; 19 L. J., C. P. 374; New Brunswick & Canada Ry. & Land Co. v. Conybeare, 9 H. L. C. 711; 31 L. J., Ch. 297.

The leading counsel has a right, in his discretion, to interpose and take the examination of a witness out of the hands of his junior; but after one counsel has brought the examination to a close, a question cannot regularly be put to the witness by another counsel on the same side. Doe v. Roe, 2 Camp. 280.

Counsel for the defendant, in addressing the jury, has no right to ask them whether they are satisfied that defendant is entitled to a verdict as the case stands, without calling witnesses. Moriarty v. Brooks, 6. C. & P. 684, per Ld. Lyndhurst, C. B.

A judge at Nisi Prius is not bound, at the request of counsel, to put insulated questions to the jury not distinctly raised by the issue on the record, although the verdict may turn upon them; nor is the jury bound to answer them; but with the consent of parties, and where the question is simple and decisive, a judge may in his discretion put it to the jury; per Cur. in Walton v. Potter, 3 M. & Gr. 411, 433, 444; and it may be proper to do so; as where it is desirable to know on which of several grounds the verdict is given. Ib. 433. Where distinct and divisible wrongs, ex. gr. several imprisonments under different warrants are complained of, the jury may be directed to make a separate assessment of damages; and this is desirable where the legality of each warrant stands on a different footing. Eggington v. Mayor of Lichfield, 5 E. & B. 100; 24 L. J., Q. B. 360.

Trial of several causes together.] Where there are several different actions all depending on the same point-e.g. whether defendant was guilty of negligence whereby each of the several plaintiffs was injured-all the causes may, by consent, be tried together by the same jury; but semb. they must be sworn in each of the causes. Pike v. Polytechnic Institution, 1 F. & F. 712.

Trial of several issues separately.] By Rules 1883, O. xviii. r. 1, a judge may order the separate trial of causes of action, united in the same action, if they cannot be conveniently tried together. See Frean v. Watley, 4 F. & F. 1038.

Power to refer.] Generally, the counsel and attorneys in a cause were at common law presumed to have power to consent to refer the cause at Nisi Prius, and the court would not set aside an award made under such order; Filmer v. Delber, 3 Taunt. 486; Faviell v. E. Counties Ry. Co., 2 Exch. 344; but enforced it, though the client repudiated the reference and did not attend. Smith v. Troup, 7 C. B. 757. But semb. as between the attorney and his client, the former might be liable if he referred improperly, or against the will of the latter; and it was certainly inexpedient to refer at Nisi Prius without the consent of parties. And, where a party was an infant, Biddell v. Dowse, 6 B. & C. 255; or a lunatic, Cumming v. Ince, 11 Q. B. 112; there was no adequate authority to refer, so as to bind that party, Now see J. Act, 1873, s. 25 (11), post, p. 282, and cases cited post, p. 262.