SECTION II. Trials and Assessments before the Court itself, by or without a Jury. CH. XXVII. § 2. Question to be tried to be writing as the Trial," and filed, and en reduced into "Record for tered for trial. Where any question of fact, or any question as to the amount of damages, is, in any suit or proceeding, directed by any order to be tried by a jury before the Court itself, or before the Court itself without a jury, the question must be reduced into writing, and copied on paper of the same description and size as that on which bills are printed, by the plaintiff, or such person as the Court shall direct, or by the solicitor for such plaintiff or person. It is then called the "Record for Trial;" and must be filed with the Clerk of Record and Writs in whose division the suit or proceeding may be, within three days after such order has been passed and entered; and must be entered for trial within three days after it has been filed. Upon production to the Registrar of a certificate of the Clerk of Records and Writs that the "Record for Trial" has been filed, the same will be set down for trial in the cause-book of the Judge to whose Court the suit or proceeding is attached, and be marked "Trial by Jury," or "Trial before the Court without a Jury," as the case may be; and either party may then apply to the Application Court to fix a day for the trial. This application should be made to fix a day. by motion or summons, with the consent of, or on notice to, the opposite party. How set down for trial. powers as to jury and trial. The Court may make all such rules and orders upon the sheriff, Statutory or any other person, for procuring the attendance of a special or common jury for the assessment of damages, or the trial of a question of fact, as may be made by any of the Superior Courts of Common Law at Westminster; and may also make any other orders which to the Court may seem requisite; and every such jury is to consist of persons possessing the qualifications, and be struck, summoned, balloted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the Superior Courts; and every juryman so summoned is entitled to the same rights, and subject to the same duties and liabilities, as if he had been duly summoned for the trial of any such cause in any of such Superior Courts; and every party to any such proceeding is entitled to the same rights as to challenge and otherwise as if he were a party to any such cause; and, generally, for all purposes of, or auxiliary to, the assessment of damages of the trial, of Swanst. 351, n.; 1 C. P. Coop. t. Cott. 361; but see De Tastet v. Bordenave, Jac. 516, 521; 1 C. P. Coop. t. Cott. 361; ante, 1075, 1096, in note. 1 For forms of orders, see Seton, 970, Nos. 1, 2, and 3. After issues have been directed, a new issue not raised on the pleadings will not be added. Morgan v. Fuller (No. 1), L. R. 2 Eq. 296, V. C. W. 2 21 & 22 Vic. c. 27, §§ 4, 5; 25 & 26 Vic. c. 42, § 3; Ord. XLI. 26. 8 Ord. XLI. 26, as varied by Ord. 6 March, 1860, r. 16; as to such paper, see Ord. IX. 3 ante, p. 396. 4 Ord. XLI. 26. See Morgan v. Fuller, (No. 1) L. R. 2 Eq. 296, V. C. W. supra (5). For forms of Records for Trial, see Ord. Sched. N., Nos. 1 and 2; and pest, Vol. III. 5 Ord. XLI. 28. As to advancing trial, see Hoffman v. Postel, W. N. (1868), 250, V. C. G. The Court sometimes fixes the day, by the order directing the trial; see Seton, 970, No. 1. 6 The costs of a brief to counsel to fix a day will in general be allowed. Clark v. Malpas, 31 Beav. 554, 558. For form of summons, see Vol. III. CH. XXVII. questions of fact, by a jury before the Court itself, the Court has § 2. the same jurisdiction, powers, and authority in all respects as belong to any Superior Court of Common Law, or to any Judge thereof, for the like purposes.1 Where the Court orders a question of fact, or a question as to the amount of damages, to be tried by a special jury, a direction to that effect must be contained in the order directing the trial; 2 and in such case the plaintiff, or such person as the Court directs, must, ten days at the least before the day fixed for the trial, obtain, on motion or petition as of course, and serve on the sheriff, or, if he is interested in the matter in question, then upon the coroner, and on the opposite party, an order for a special jury. The expense of the special jury is, in the first instance, to be borne and paid by the plaintiff, or such other person; but is afterwards to be paid and borne as the Court directs.* Where the Court has not specially directed the question to be tried by a special jury, either party may, fourteen days at the least before the day fixed for the trial, obtain, on motion or petition of course, an order for a special jury: which order must be served on the opposite party twelve days at the least, and on the sheriff or coroner ten days at the least, before the day fixed for the trial; and the expense of the special jury is in the first instance to be borne by the party obtaining the same; but if the Court, upon the trial, is of opinion that it was proper that the trial should be had by a special jury, the Court may give such directions as to the costs thereof as it thinks fit. Where the trial is to take place by a common jury, the plaintiff, or such person, must, ten days at the least before the day fixed for the trial, obtain, on motion or petition as of course, and serve on the sheriff or coroner, an order for the sheriff or coroner to summon a common jury for the trial." Where an order has been made for a special jury, the sheriff or coroner must, in addition to the special jury, summon twelve common jurymen for the trial, in order that, in the event of a sufficient number of special jurors not being in attendance to make a jury, a tales may be directed by the Court, or prayed for by either party.s The mode and practice of proceeding to nominate and reduce a special jury are the same, in all respects, as are for the time being in force in the Superior Courts of Common Law, when a special 1 21 & 22 Vic. c. 27, § 3. The practice 2 Ord. XLI. 27; see Seton, 970, No. 1. 8 For form of order, see Ord. Sched. N., 2 6 jury is ordered to be struck, or as near thereto as the practice of the Court of Chancery will admit. By the Juries' Act, 1870, special juries for London and Middlesex are to be provided in the same manner as in other counties; and the former practice of nominating and reducing special juries in London and Middlesex is to cease, except that any of the Superior Courts, or any Judge thereof, may order that a special jury be struck according to the former practice. It is therefore expedient to state the former practice, where a cause was to be tried before a special jury of the county of Middlesex; which was as follows: On serving the sheriff with the order for a special jury, an appointment was obtained to nominate the jury before the under-sheriff; a copy of such appointment had to be served on the opposite party. At the time so appointed, the parties attended before the under-sheriff, when the jurors' book was produced and the special jurors' list, and numbers written on pieces of parchment or card, corresponding with the names in such list. The under-sheriff then put the numbers into a box, and, having shaken them together, drew out fortyeight of them one after another, and, as each number was drawn, referred to the corresponding number in the special jurors' list, and read aloud the name designated by such number. At the time of reading each name, either party or his solicitor might object to such person named as being incapacitated from serving on the jury; and if he proved the same to the satisfaction of the undersheriff, such name was set aside and another number drawn instead: which might in like manner be challenged; and so on, until forty-eight names were chosen. If the whole of the forty-eight names could not be obtained in this way, the under-sheriff might nominate the remainder. The clerk of the under-sheriff furnished each party with a list of the names of the forty-eight jurors, their additions, and places of abode. He also gave out another appointment for the purpose of striking them: which had to be served on the opposite solicitor. At the time so appointed the parties again attended the under-sheriff; who then struck out twelve names for each party, at their desire, beginning with the plaintiff'; or, if either of the solicitors did not attend, the under-sheriff proceeded ex parte, and struck out twelve names for the party absent. The clerk to the under-sheriff then made out lists of the twenty-four names remaining, and gave them to the solicitors. At Law, a Judge might make an order to oblige a party to proceed to the striking of a special jury; and it was no objection that there had 1 21 & 22 Vic. c. 27, § 3; Ord. XLI. 38. 2 33 & 34 Vic. c 77, § 16. See, for the mode of summoning a special jury in the counties, Chitty's Arch. 366, 367. 3 The Juries' Act, 1870 (33 & 34 Vic. c. 77), § 17. See Chitty's Arch. 369 et seq. 5 Ante, p. 1084. 6 15 & 16 Vic. c. 76, § 110. In London, the special jury is nominated and struck before the secondary. Ibid. 7 See 6 Geo. IV. c. 50, § 32. 8 See White v. Eastern Union Railway Company, 11 C. B. 875; 21 L. J. C. P. 112. 9 Joseph v. Perry, 3 Dowl. 699. CH. XXVII. been a change of sheriffs after the forty-eight were nominated, and § 2. before the parties attended to strike the jury.1 Return of order and jury panel by the sheriff. Application for a view. Form of summons and order. Deposit. Proceedings after an order for a view. Record, &c., to be transmitted to registrar in Court. Copy for the Attendance of witnesses: how compelled. The order for a common or special jury must be returned by the sheriff or coroner to the solicitor or person who has lodged the same, together with his return, and the jury panel; and the order and jury panel must, two days at the least before the day of trial, be left with the Clerk of Records and Writs, to be annexed to the Record for Trial.2 Either party may apply, by summons to a Judge at Chambers, for a view by the jury summoned for any trial; and on the hearing of such summons, each party is to name a shower for such view.3 The summons for a view, and the order to be made thereon, must state the place at which the view is to be made, and the distance thereof from the office of the under-sheriff. The sum to be deposited in the hands of the under-sheriff is 107. in case of a common jury, and 167. in case of a special jury, if such distance does not exceed five miles, and 157. in case of a common jury, and 217. in case of a special jury, if it is above five miles. If such sum is more than sufficient to pay the expenses of the view, the surplus will be forthwith returned to the solicitor or party who obtained the view. If such sum is not sufficient to pay such expenses, the deficiency is to be forthwith paid by such solicitor or party.1 The proceedings after an order for a view has been made are the same in all respects as are in force in the Superior Courts of Common Law where a view is to be had, or as near thereto as the practice of the Court of Chancery will admit. It seems, therefore, that the order, when passed and entered, should be left at the sheriff's office, together with a list of the jury, where it is special, and the jurymen have been struck. The under-sheriff will then summon the special jurymen, or, in the case of a common jury, he will summon such of the common jurymen as he thinks fit. The expenses of the view must be deposited with the under-sheriff. On the day appointed for the trial, and previously to the commencement thereof, the record for trial, with the return and jury panel (if any) annexed thereto, is transmitted by the Clerk of Records and Writs to the Registrar of the Court in attendance; and a copy thereof must be left for the Judge before whom the trial is appointed to be had, by the person at whose instance the same has been entered for trial. Either party may sue out, at the Record and Writ Clerks' office, subpœnas ad testificandum, and subpœnas duces tecum, to compel the attendance of witnesses on any trial, according to the forms in 1 Rex v. Hart, Cowp. 412. 2 Ord. XLI. 33. 3 Ord. XLI. 36. As to a view see Taylor on Evid. §§ 502-505 A.; Best, 197. For form of order for a view, see Ord. Sched. N., No. 5, and Vol. III.; and for form of summons, see ibid. 4 Ord. XLI. 37; which order also specifies the mode in which the under-sheriff is to pay and account for the money so deposited. Ord. XLI. 38. For the practice at Law, see Chitty's Arch. 371, 372. 6 Ord. XLI. 41. use in the Court of Chancery, or as near thereto as the circum- CH. XXVII. stances of each case will admit.1 2 § 2. Jurisdiction Upon every trial by a jury before the Court itself, the Court has the same powers, jurisdiction, and authority as belong to any Judge at the trial. of any of the Superior Courts of Common Law sitting at Nisi Prius; and where the question is tried before the Court itself without a jury, the evidence may be taken by the oral examination of witnesses and other proofs in open Court; and the verdict of the Judge has the same effect as the verdict of a jury; and the proceedings upon and after such trial, as to the power of the Court, the evidence, and otherwise, are the same as in the case of a trial by a jury.s All persons between twenty-one and sixty, possessing the prop- Who may be erty necessary by law to qualify them to serve on juries, may be jurors. jurors, with the following exceptions: namely, aliens, unless, being otherwise qualified, they have been domiciled in England or Wales for ten years, or upwards; persons attainted of treason or felony, or of any crime that is infamous, unless they have obtained a free pardon; and men under outlawry." Persons exempted from serving as The following persons are exempted from serving on juries: namely, peers; members of parliament; judges; clergymen; Roman Catholic priests; ministers of any congregation of Protestant jurors. dissenters and of Jews, whose place of meeting is duly registered, provided they follow no secular occupation, except that of a schoolmaster; serjeants, barristers-at-law, certified conveyancers and special pleaders, if actually practising; members of the society of doctors of law and advocates of the civil law, if actually practising; attorneys, solicitors, and proctors, if actually practising, and having taken out their annual certificates, and their managing clerks, and notaries public in actual practice; officers of the Courts of Law and Equity, and of the Admiralty and Ecclesiastical Courts, including therein the Courts of Probate and Divorce; and the clerks of the peace, or their deputies, if actually exercising the duties of their respective offices; coroners; jailers and keepers of houses of correction, and all subordinate officers of the same; keepers in public lunatic asylums; members and licentiates of the Royal College of Physicians in London, if actually practising as physicians; members of the Royal Colleges of Surgeons in London, Edinburgh, and Dublin, if actually practising as surgeons; apothecaries certified by the Court of Examiners of the Apothecaries' Company, and all registered medical practitioners and registered 1 Ord. XLI. 51. As to documentary evidence, see ante, p. 862 et seq.; 21 & 22 Vic. c. 27, § 7; and as to compelling the attendance of witnesses, see ante, p. 912. For forms of subpoenas and notice to admit documents, see Vol. III. 2 21 & 22 Vic. c. 27, § 4. As to the functions of the Judge, as distinguished from those of the jury, see Taylor on Evid. §§ 21-41; Best, § 82; Powell, 7-17. 8 21 & 22 Vic. c. 27, § 5; and see Fernie v. Young, L. R. 1 H. L. 63; 12 Jur. N. S. 437. For directions as to the briefs of counsel, see Vol. III. 4 The Juries' Act, 1870 (33 & 34 Vic. c. 77), § 8. 5 The Juries' Act, 1870 (33 & 34 Vic. c. 77), § 10. |