CHAPTER XXI. PUTTING OFF THE TRIAL. CHAP. XXI. material Wit In what Cases.] IF there be any bonâ fide and unavoidable In what Cases. reason or fact properly shewn, on affidavit, why it is unsafe to proceed to trial, the court will in general put off the same. Thus the court will, in general, when a material witness for Absence of either party is absent, allow the trial to be put off, either to ness, &c. another day of the same sittings, or to another sitting in the same term, or to another term, or even for a longer period, under particular circumstances (a); to another day of the same sittings or assizes, at the instance of either party; to another sittings, term, or assizes, at the instance of the defendant only, for a plaintiff may have all the effect of such an application by withdrawing his record (b). They have put off a trial until a commission should go to examine a material witness abroad who refused to attend, and until the deposition should be certified (c). They have refused it, however, in another case, where it did not appear that there was any likelihood of the witness's return(d); and the same where the witness did not go abroad until after notice of trial was given, and he might consequently have been served with a subpæna in sufficient time (e); and they will also, it seems, in general refuse it, if the party applying have conducted himself unfairly, or have been the cause of any improper delay (f). They have also refused it, upon the application of the plaintiff, in a penal action (g); and, in another case, where the evidence of the absent witness was intended to sustain a defence not approved of by the court (h). In an action for libel, where a justification was pleaded, the court, upon the application of the defendant, put off the trial, to enable him to procure the attendance of witnesses from abroad, (the nature of the evidence being particularly pointed out in the affidavit), but imposed the terms of his admitting upon the trial the publication of the alleged libel (i). Even where the court had twice before put off the trial, on account of the absence of a material witness on a whaling voyage, and the defendant applied a third time to put off the trial, on account of the witness being still absent, the court granted the application, upon the terms of the defendant's bringing the money into court, or giving security for it (a) See Stratford v. Marshall, Barnes, 440: Grierson v. Aird, 1 Hodg. 76. (b) MS., H. 1826, cor. Abbott, C. J.: see Curtis v. Barker, 2 C. & P. 185; Ansley v. Birch, 3 Camp. 333; 2 Taunt. 221. (c) Rez v. Williams, 1 W. Bl. 512, cited: see Farley v. Newnham, Doug. 419, 420: Mostyn v. Fabrigas, Cowp. 174: and see Calliand v. Vaughan, 1 B. & P. 210. (d) Rer v. D'Eon, 1 W. Bl. 515: see Lord v. Cooke, 1 W. Bl. 436. (e) Bourne v. Church, Barnes, 442: and 685. BOOK IV. Other Grounds. Issue out of The Applica tion for. to the satisfaction of the master (k). So, where the copy of a judicial document in the West Indies was stated to be material and necessary evidence for the defendant, the court put off the trial to give time to procure it, and refused to go into the question of its admissibility(). There are also other grounds upon which the court will put off a trial, besides that above mentioned of the absence of a material witness. Where the defendant's attorney was so ill that he could not attend, the court, upon application, put off the trial (m). Where a libel was published immediately before the assizes, with an intent to influence the jury, the court, upon application, put off the trial (n). Where three actions were brought against three several defendants, for different parts they had taken in the same transaction, in one of which issue was joined on a demurrer, and issues in fact in the other two; the court, upon application of the defendants, put off the trials of the issues in fact, until the demurrer should first be argued, as the point of law involved in it was the foundation of the plaintiff's right to damages in the other two actions (»). But where there is only one action, and there are several issues in it in law and in fact, the court will not, in general, put off the trial on the application of the defendant, until the demurrer has been argued (p). The court has refused to put off a trial until a suit concerning the same matter in the ecclesiastical court should be determined (9). So, they have refused to put off the trial of a cause brought by the assignees of a bankrupt, because a petition is pending against the commission of bankruptcy (r). And the same, where the ground of the application was, that an indictment for perjury, founded on the plaintiff's affidavit of debt, was pending(s). They have refused it, also, where the application was made merely because counsel was not prepared (t). Also, where the defendant was arrested as he was coming to court to attend his cause, the judge at Nisi Prius refused to put off the trial on that account, unless upon payment of costs (u). And, lastly, the court or a judge at Nisi Prius will put off the trial of an issue out of Chancery, for the same reasons and under the same circumstances as in ordinary actions(v). The Application for.] The application must be made either to the court, or to the judge at Nisi Prius; and should, it seems, he made at least two days before the day of trial (w). When and to Or, if the grounds of the application have occurred or become whom made. known to the party so recently, that he cannot make it in the above time, he may apply to the judge at Nisi Prius just before or even after the cause has been called on, who will accordingly put off the trial, if satisfied as to the sufficiency of (r) Assignees of Rep. 411. (8) Johnson v. Wardle, 3 DowL 350; 1 Har, & W. 219, S. C. (t) Colebrook v. Dobbs, 3 Burr. 1319. (u) Solomon v. Underhill, 1 Camp. 229. (v) Buxton v. Lawton, 4 Camp, 163 (w) Sce Roberts v. Downes, Barnes, 437: Roberts v. Hillsborough, Id. 438: Bourne v. Church, Id. 442: Sellon V. Chamberlayne, Id. 444: Anon., 3 Taunt. 315. the grounds stated for the application (x). A judge sitting at CHAP. XXI. Nisi Prius at Westminster cannot make an order in a cause to be tried in London (y). It seems that the sheriff, under the Writ of Trial Act, has no power to postpone a cause, but the application must be made to a judge (). The trial cannot, at least in the Common Pleas, be put off by the mere consent of the parties, unless sanctioned by the judge at Nisi Prius (a). If the application be made at Nisi Prius, notice of the in- Notice to optended application, and a copy of the affidavit on which it is posite Party. founded, should previously be given to the opposite party; which may have the effect of preventing his incurring the expense of bringing up his witnesses (b), if he do not intend to oppose the application; or, if he do oppose it, it affords him an opportunity of shewing cause against it in the first instance (c). The counsel's fee for moving is usually one guinea for a rule nisi, and the same or more for moving to make it absolute. for. The application must be founded on an affidavit stating the The Affidavit grounds upon which it is made. If made on account of the absence of a material witness, the affidavit, in ordinary cases, states the time issue was joined, the time for which notice of trial was given, the absence of the witness, and that the party cannot safely proceed to trial without him, the endeavours which have been made to find him, and the time at which he is expected to return (d). But, if the witness be abroad, or if, from the nature of the application, it may be suspected that it is made merely for the purpose of delay, the above form will not, in general, be sufficient, and the court usually require that the affidavit shall state the cause of action, and the evidence expected from the witness, in order that they may judge if it be material, and that it also state circumstances from which they may infer the probability of the witness's return within a reasonable time (e). It is, in general, best, that the affidavit should state (if possible) when the witness is expected to return (f). In no case, however, is it necessary to state the name of the witness on account of whose absence the party cannot proceed to trial (g). Formerly, it seems, the affidavit must have been made by the party himself (h); but the affidavit of the attorney in the cause(), and even the affidavit of the attorney's clerk, if it state that he is particularly acquainted with the circumstances of the cause, and has the management of it (j), has since been deemed sufficient. The affidavit, if made on the part of the defendant, need not swear to a good defence on the merits (k). (r) See R. H., 14 G. 2, Vol. I. 265: Ansley v. Birch, 3 Camp. 333: Anon., 3 Taunt. 315. (y) Atkinson v. Dickinson, 3 Camp. 41. (2) Packham v. Newman, 3 Dowl. 165; 1 C., M. & R. 584, S. C. (a) See R. M., 50 G. 3, C. P. (b) If no notice be given, or if not given until expense has been incurred by the opposite side, the applicant will have to pay that expense. (Attorney-General v. Hull, 2 Dowl. 111). (e) See form of notice, Chit. Forms, 614; and of affidavit, Id. (d) See the form, Chit. Forms, 614. (e) See Rex v. D'Eon, 3 Burr. 1513: 1 W. Bl. 510. S. C.: Lord v. Cooke, Id. 436. (f) 1 Chit. Rep. 730 a. (g) Smith v. Dobson, 2 D. & R. 420: (h) Carter v. Uppington, Barnes, 437. BOOK IV. PART I. Costs. In deciding upon an application of this kind, the court will not, in general, enter into any inquiry as to the admissibility of the evidence required (1). Costs.] When the trial is thus put off, it is usually upon the terms of paying any costs the opposite party may have thereby been put to (m). And when the plaintiff sued as a pauper, and the defendant had the trial put off, upon undertaking to pay the costs of the day, the Court of Common Pleas granted an attachment against the defendant for the nonpayment of these costs (n). The order for putting off the trial, when made at Nisi Prius, ought to be drawn up on the terms of the party who obtains it, undertaking to pay the costs of the day, otherwise there might be some doubt whether an attachment could be granted for not paying them. But, at all events, if drawn up generally on payment of costs, such payment being a condition precedent, if they be not paid, you may proceed to try the cause. The party gets these costs taxed upon the rule or order, in the usual way. (1) See Mackenzie v. Hudson, 1 D. & R. 159. (m) See Walker v. Lawe, 1 Gale, 52: Attorney-General v. Hull, 2 Dowl. 111. The costs are generally the same as if the record had been withdrawn. (n) Rice v. Brown, 1 B. & P. 39: see Attorney-General v. Hull, 2 Dowl. 111. CHAPTER XXII. TRIAL BY PROVISO. CHAP. XXII. In what Cases.] IN all cases, where the plaintiff, after issue In what Cases. joined, does not proceed to trial, where, by the course and practice of the court, he ought to have done so, the defendant may, if he wish, have the action tried by proviso: that is, he may give the plaintiff notice of trial, make up the Nisi Prius record, carry it down and enter it with the marshal, and proceed to the trial as in ordinary cases (a). This, however, can be done only in cases where the plaintiff has been guilty of some laches or default after issue joined; except in replevin, prohibition, quare impedit (b), and error in fact (c), in which cases, both parties being actors, the defendant may make up the Nisi Prius record, and thereupon proceed to trial, although no laches or default be imputable to the plaintiff. The court have also allowed a defendant to carry down the record of an issue, directed by the Court of Chancery, to trial by proviso, upon its being suggested to them that the plaintiff wished to delay the cause (d). Where, upon a special jury cause being called on for trial, there was not a full special jury, and neither party prayed a tales, it was held that the defendant could not afterwards take down the record by proviso (e). The court have no right to interfere with defendants in ordinary cases, and prevent them from taking down a cause by proviso, for that is the mode by which it has been determined, that a plaintiff shall be prevented from keeping a cause hanging over the head of a party for an indefinite time (ƒ). adopted. As the delay and expense attending the trial by proviso, Seldom however, are material objections to this mode of proceeding, it is seldom adopted, unless in cases where the defendant is particularly anxious that the cause should be finally settled by verdict, and in some other cases specified in the next Chapter: in ordinary cases, the defendant usually moves for judgment as in case of a nonsuit, in preference to proceeding to trial by proviso. how. When and how.] By rule of all the courts of H., 2 W. 4, When and r. 71, "no trial by proviso shall be allowed in the same term in which the default of the plaintiff has been made, and no rule for a trial by proviso shall be necessary" (g): and by (a) After the issue has been joined, if the plaintiff, in causes in London or Middlesex, make default in trying it, or, in country causes, do not proceed to trial at the next assizes, the defendant may afterwards proceed to trial by proviso. (R. M., 4 A. c.) As to the time within which the plaintiff ought to bring on the cause for trial, see post, 1072, 1073. (b) Reg. v. Banks, 2 Salk. 652; 2 Ld. Raym. 1082, S. C.: and see Smith v. Blundell, 1 Chit. Rep. 226: Worcestershire (c) 2 Saund. 336 a. (d) Humpage v. Rowley, 4 T. R. 767. (g) See the former practice in the 6th |