100

JUDGMENT AS IN CASE OF NONSUIT.

it be neglected, there can be no valid trial of the cause. (1)

When the time of trial arrives, the nisi prius record must be carried down to the sittings or assize town, otherwise the cause cannot be tried. This ought regularly to be done by the plaintiff; but, if he make default by not trying the cause within due time, (2) the defendant may carry down the record, giving the plaintiff the same notice as the plaintiff would have been obliged to give him, and this mode of proceeding is called the trial by proviso, in consequence of a proviso, which in such cases is inserted in the distringas, directing the sheriff, if two writs come to his hands, to execute and return only one of them. But the trial by proviso is now somewhat uncommon, for by stat. 14 Geo. 2, c. 17, the defendant is empowered, in cases where the plaintiff's default would have warranted his carrying the record down to trial, to move for judgment as in case of nonsuit, which the court may either grant, or may, upon just cause and reasonable terms, (3) allow the plaintiff further time to try the issue. If judgment be given against the plaintiff, it will have precisely the same effect as if he had been nonsuited, and the judgment had been thereupon given. As the defendant may hasten the trial by the means just pointed out, so

(1) See Rogers v. Smith, 1 Ad. & Ell. 772. Green v. Smith, 1 Dowl. 174.

(2) See Tidd, 9th ed. 760, R. Hil. 2 Wm. 4, Reg. 1, pl. 70, 71. (3) The terms are generally that the plaintiff shall give a peremptory undertaking to try at the next assizes.

he may move to put it off, if he can show good cause for such an indulgence. (1) But the cause will not be put off, at the plaintiff's instance, from assize to assize, or from sittings to sittings; for as he brought down. the record, so he may, if he thinks fit, direct his counsel to withdraw it, and then the trial cannot proceed.

When the plaintiff has made up his mind to try the cause, he must prepare his briefs and evidence. The brief contains a statement of the pleadings, case, and evidence, for the information of the counsel whom he intends to employ. With respect to the evidence, that will of course be either oral or documentary. Where the attendance of witnesses is required, he may procure it by suing out writs of subpoena, copies of which must be served, a reasonable time before the trial, on the intended witnesses, and their necessary expenses, at the same time, tendered to them; after which, if they neglect to attend, the plaintiff may proceed against them, either by way of attachment, to punish their contempt of court, or by way of action, to indemnify him for the injury he has sustained in consequence of their absence. The writ of subpœna may be issued to any part of England. If the witness be in prison, a writ of habeas corpus ad testificandum is the proper process for obtaining his appearance. If he be in India, or in any of her Majesty's colonies or dominions abroad, the court will grant a writ in the nature of a mandamus to the tribunals there to

(1) Tidd, 9th ed. 770.

examine him and return his examination to this country; (1) and if the witness be either in a foreign state, or in England under such circumstances as render his personal attendance in court impossible, application must be made to the court, which has power to order his examination before the master, prothonotary, or any other person, if he be within its jurisdiction, or to issue a commission for his examination if he be without. (2) As to documentary evidence, if the instruments, the proof of which is required, be in the party's own possession, he must produce them; if in that of his adversary, he must give him a notice to produce them, and, in case of non-compliance, will be allowed to give secondary evidence of their contents. If they be in the hands of a third person, the attendance of that person with them must be enforced by a subpœna duces tecum. The expense and difficulty of proving documents is considerably diminished by several late rules of court, which force the opposite party to admit them, or, if he refuse, and they be afterwards proved, subject him to the costs of proof. (3)

The above observations, respecting the construction of the brief, and the mode of procuring evidence, apply, of course, equally to both parties.

We will now suppose the record to be carried down to trial, which (unless in the case of a trial at bar, or in

(1) 13 Geo. 3, c. 63, s. 44; 1 Wm. 4, c. 22.

(2) 1 Wm. 4, c. 22.

(3) R. Hil. 4 Wm. 4, and R. R. 6 & 7 Hil. 2 Wm. 4.

that of a trial had before the sheriff or inferior judge, by writ of trial, under stat. 3 & 4 Wm. 4, c. 42,) will be at nisi prius, and will take place either at the sittings or assizes. The assizes are held, in each county, twice a year, after Hilary and Trinity Terms, before persons appointed for that purpose by the king's commission, amongst whom are always two of the judges of the superior courts at Westminster. The sittings are held, for the trial of causes arising in London or Middlesex in their respective courts, before the chief justices of the King's Bench and Common Pleas, and the chief baron of the Exchequer, or puisne judges appointed for that purpose, (1) and take place on several days in and after each term: the number of these days is fixed by stat. 1 Wm. 4, c. 70, s. 7, and must not exceed six days, exclusive of Sundays, after Easter Term, and twenty-four days after the other terms: unless, indeed, a day, not within such twentyfour, be specially appointed for the trial of some particular cause, by consent of the parties. The cause having been entered, will be called on, in its proper order, and the jury empannelled and sworn to determine it. The jurors are, as we have seen, returned by the sheriff, in obedience to the writ of distringas, and are either common or special jurors. This seems the proper place for inquiring into the qualifications which those of each description ought to possess, and the mode in which they are to be empannelled.

This whole subject is regulated by stat. 6 Geo. 4,

(1) Stat. 1 Wm. 4, c. 70, s. 4.

c. 50, which directs that, in England, every man (except as thereinafter excepted) between the ages of twenty-one and sixty, who shall have ten pounds ayear, beyond reprises, in lands and tenements of freehold, copyhold, or customary tenure, or held in ancient demesne, or in rents issuing out of such tenements, in fee simple, fee tail, or for life, or twenty pounds a-year in leaseholds held for twenty-one years or any longer term, or any term deteminable on a life or lives, or being a householder, shall be rated to the poor rate, or in Middlesex to the house duty, on a value of not less than thirty pounds, or who shall occupy a house containing not less than fifteen windows, shall be qualified and liable to serve on juries for the trial of all issues joined in the superior courts at Westminster, and in all courts of assize, nisi prius, &c., such issues being triable in the county where he resides. In Wales, the qualification is three-fifths of the above amount. No person, however, who is not a natural born subject of the king, is qualified to serve on juries, excepting juries de medietate linguæ : (1) nor is any man qualified who has been attainted of treason or felony, or convicted of any infamous crime, unless pardoned, nor any man under outlawry or excommunication. above qualifications do not extend to jurors in any liberties, franchises, cities or boroughs, who possess any jurisdiction, civil or criminal; and in the city of London no man can be returned to try issues joined in

The

(1) A species of jury sometimes empannelled in criminal cases for the trial of a foreigner.