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, he 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 Rail, & 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. Dowce, 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. See cases cited post, pp. 277, 278.

The Arbitration Act, 1889 (52 & 53 Vict. c. 49), has repealed the provisions of the C. L. P. Act, 1854, and of the J. Act, 1873, which in some cases gave the judge the power compulsorily to refer an action or some question arising therein to arbitration. The Arbitration Act, 1889, contains similar provisions, but somewhat extends the judge's powers.

By sect. 13(1) (replacing J. Act, 1873, s. 56), "subject to rules of court and to any right to have particular cases tried by a jury, the court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the crown) for inquiry or report to any official or special referee."

By sect. 14 (replacing C. L. P. Act, 1854, s. 3, and J. Act, 1873, s. 57), "in any cause or matter (other than a criminal proceeding by the crown), (a) if all the parties interested who are not under disability consent: or, (b) if the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the court or a judge conveniently be made before a jury or conducted by the court through its other ordinary officers: or, (c) if the question in dispute consists wholly or in part of matters of account; the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the court."

By Rules, 1883, O. xxxvi. rr. 46, 47, official referees take references in rotation, unless (r. 47), the court or a judge direct a reference to a particular official referee. As to procedure on trial under this Act before a referee, vide post, pp. 276, 277.

By Rules, 1883. O. xxxiii. r. 2, "the court or a judge may, at any stage of the proceedings in a cause or matter, direct any necessary inquiries or accounts to be made or taken, notwithstanding that it may appear that there is some special or further relief sought for, or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner."

By J. Act, 1873, s. 66, a judge may order any accounts to be taken or inquiries made in the office of a district registrar for report to the court. Sect. 13(1), supra, allows only a reference of such questions as have already arisen, or are certain to arise in the action. Weed v. Ward, 40 Ch. D. 555, C. A. It includes an inquiry by examination of witnesses. Wenlock, Ly. v. R. Dee Co., 19 Q. B. D. 155, C. A.; decided under J. Act, 1873, s. 56. Sect. 14 expressly provides that in the cases mentioned therein, even the whole cause may be tried before a referee or arbitrator. This renders the decisions in Longman v. East, Pontifex v. Severn, and

Mellin v. Monico, 3 C. P. D. 142, C. A., that the J. Act, 1873, ss. 56, 57, did not give the court power to refer the whole cause of action to a referee, no longer applicable. But, even under those sections, where any of the issues in an action were proper to be sent to be tried by an official referee, as involving matters of account, all the issues in the action might be sent for trial by him. Ward v. Pilley, 5 Q. B. D. 427, C. A.; Hoch v. Boor, 49 L. J., Q. B. 665, C. A; Knight v. Coales, 19 Q. B. D. 296, C. A. But if there be a preliminary question of liability to be tried, the whole matter should not be referred. Clow v. Harper, 3 Ex. D. 198, C. A. It seems that "prolonged examination of documents" in 52 & 53 Vict. c. 49, s. 14, means an examination required by the judge to enable him to leave questions of fact to the jury, and not to determine the legal right. See Ormerod v. Todmorden Mill Co., 8 Q. B. D. 674, 677, per Brett, L. J. The judge may, under sects. 13, 14, refer any scientific question in issue to an expert agreed on by the parties, for experiment and report to him. Badische Anilin, &c., Fabrik v. Levinstein, 24 Ch. D. 156.

Trial before a referee.] The Arbitration Act, 1889, s. 13 (1), ante, p. 275, enables a judge to refer any question arising in any cause for inquiry or report to any official or special referee.

By sect. 13 (2.) "The report of an official or special referee may be adopted wholly or partially by the court or a judge, and if so adopted may be enforced as a judgment or order to the same effect."

In certain cases defined by sect. 14, ante, p. 275, the judge may order the whole cause or any question of fact therein to be tried by a referee or arbitrator.

By sect. 15. (1.) (replacing J. Act, 1873, s. 58). In all cases of reference to an official or special referee or arbitrator under an order of the court or a judge in any cause or matter, the official or special referee or arbitrator shall be deemed to be an officer of the court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by Rules of Court, and subject thereto as the court or a judge may direct. (2.) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the court or a judge, be equivalent to the verdict of a jury. (3.) The remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the court or a judge shall be determined by the Court or a judge.

By sect. 16. "The court or a judge shall, as to references under order of the court or a judge, have all the powers which are by this Act conferred on the court or a judge as to references by consent out of court." This section refers to sects. 9, 10, 11, which give power to enlarge the time for making the award, to remit the award, and to set it aside, and also, it seems, to sect. 12, by which "an award on a submission may, by leave of the court or a judge, be enforced in the same manner as a judgment or order to the same effect."

Sect. 19 gives power to state a special case.

The rules in relation to such references are as follows: By O. xxxvi. r. 48, "where any cause or matter, or any question in any cause or matter, is referred to a referee, he may, subject to the order of the court or a judge, hold the trial at or adjourn it to any place which he may deem most convenient, and have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. He shall, unless otherwise directed by the court or a judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury." R. 49: "Subject to any order to be made by the court or judge ordering the same, evidence shall be taken at any trial, before a referee, and the attendance of

witnesses may be enforced by subpoena; and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge." R. 50: "Subject to any such order as last aforesaid, the referee shall have the same authority with respect to discovery and production of documents, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge of the High Court," (r. 51) except the power to commit or enforce any order. R. 52: "The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct; and the court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee; or the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court may direct." By O. lix. r. 3, "where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law; and on the application of any party the court may set aside the award on any ground on which the court might set aside the verdict of a jury. Such appeal shall be to a divisional court who shall have power to set aside the award or certificate, or to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate or all or any of the matters in dispute that may be just." The J. Act, 1884, s. 8, extends the provisions of the J. Act, 1873, s. 45 to such appeals.

A referee has power to fix a peremptory appointment for the hearing. Wenlock v. R. Dee Co., 49 L. T. 617, Mich. S. 1883, C. A. A report under sect. 13, ante, pp. 275, 276, requires confirmation, but one under sect. 14, ante, p. 275, can only be set aside, like a verdict, on the ground that it is against the weight of evidence. Mansfield Union v. Wright, 9 Q. B. D. 686, per Jessel, M. R. Where on a reference the referee has directed judgment for the plaintiff under O. xxxvi. r. 52, the Court may on the evidence set it aside and enter judgment for the defendant. Clark v. Sonnenschein, 25 Q. B. D. 226, 464, C. A. He is not bound to take accounts sent to him for report in the same way that a chief clerk usually takes them in the Chancery Division. Turpin v. Pain, 44 Ch. D. 128. An award, made under a consent order, to refer an action and all matters in difference is still final. Darlington Wagon Co. v. Harding, W. N. 1890, 182, 207, C. A.

Power to compromise.] At common law the parties were bound by the "conduct" of the suit in court by their counsel or attorney: thus, in an action of trespass counsel might, in the absence of the parties, consent to the amount of damages; per Pollock, C. B., Thomas v. Harris, 27 L. J., Ex. 353; and in an action for malicious prosecution the defendant's counsel may also consent to withdraw all imputations from the plaintiff. Matthews v. Munster, 20 Q. B. D. 141, C. A. So in an action for libel counsel may consent to the withdrawal of a juror. Strauss v. Francis, L. R., 1 Q. B. 279. So, where the party was present and did not dissent from a compromise, he was bound thereby. Chambers v. Mason, 5 C. B., N. S. 59; 28 L. J., C. P. 10; Rumsey v. King, 33 L. T., N. S. 728, Q. B., H. S. 1876. And generally, an attorney acting bona fide, reasonably, and skilfully, and not having express instructions not to compromise, was

justified in doing so. Per Campbell, C. J., Fray v. Voules, 1 E. & E. 839; 28 L. J., Q. B. 232; Chown v. Parrott, 14 C. B., N. S. 74; 32 L. J., C. P. 197; Prestwich v. Poley, 18 C. B., N. S. 806; 34 L. J., C. P. 189. Where the plaintiff's attorney, in an action to recover the price of a piano, agreed to settle the action by the return of the piano and payment of costs, the court upheld the compromise. S. C. The power of counsel or attorney to compromise was much discussed on rules for attachment in the case of Swinfen v. Swinfen, 18 C. B. 485; 25 L. J., C. P. 303; 1 C. B., N. S. 364; 26 L. J., C. P. 97. In S. C. in Equity, it was held that neither counsel nor attorney could compromise the suit at Nisi Prius; 24 Beav. 549; 2 De G. & J. 381; 27 L. J., Ch. 35, 491; though the L. JJ. in so deciding declined to lay down any general principle on the subject. See also Green v. Crockett, 34 L. J., Ch. 606. It was not suggested in Matthews v. Munster, ante, p. 277, that the common law rules above stated were affected by the J. Act, 1873, s. 25 (11), post, p. 300. And it has been decided that consent given by counsel, by the authority of his client, to an order, there being no mistake or surprise, cannot be arbitrarily withdrawn, although the order has not been drawn up. Harvey v. Croydon Sanitary Authority, 26 Ch. D. 249, C. A. In order to set aside a compromise, e. g., on the ground of mistake or fraud, a fresh action is necessary. Emeris v. Woodward, 43 Ch. D. 185. No compromise entered into by the next friend of an infant plaintiff is valid unless it be for the infant's benefit. Thus, an agreement not to appeal from a non-suit on the terms of the defendant foregoing costs is invalid, the infant being impecunious. Rhodes v. Swithinbank, 22 Q. B. D. 577, C. A.

As to what liability a counsel or solicitor incurs to his client by settling an action contrary to the client's wishes, see Swinfen v. Chelmsford, Ld., 5 H. & N. 890; 29 L. J., Ex. 382; Fray v. Voules, and Chown v. Parrott,

supra.

Who is to begin.] It is often a subject of inquiry whether the plaintiff or the defendant is to open the facts and evidence to the jury. This may be an advantage, and is then claimed as a right; as where evidence is anticipated on the opposite side which will give a right to reply generally on the whole case; or it may be a burden; as where a party relies on the witnesses of his opponent, or on the difficulty of the proofs incumbent on him.

The right or obligation to begin generally depends on the nature of the issue, and also on the rules respecting the onus probandi at the commencement of the trial (see ante, pp. 94 et seq.); and the test has been said to be, not on which side the affirmative lies, but which side will be entitled to a verdict if no evidence be given. Leete v. Gresham Insurance Co., 15 Jurist, 1161, Ex. M. T. 1851. Thus, where the plaintiff declared for unworkmanlike execution of a contract, and defendant pleaded that it was executed in a workmanlike way, and thereupon issue was joined, it was held that plaintiff was to begin; for it was not to be assumed that the work was bad. Per Alderson, B., Amos v. Hughes, 1 M. & Rob. 464. This test, however, is only another way of stating the common rule that he on whom the burden of proof lies must begin; for this must be ascertained before it can be determined which side is entitled to the verdict. As a general rule the proof lies on him who affirms, except in cases where the presumption of law or fact is in favour of the affirmative. It must, however, be borne in mind that regard must be had to the effect and substance of the issue and not to its grammatical form. Soward v. Leggatt, 7 C. & P. 615, per Ld. Abinger; Amos v. Hughes, supra.

It will be seen, by a careful comparison of the cases collected below, that the most general criterion that can be given as to the right to begin