accounts. Inquiries and report in writing of such district registrar as to the result of such accounts or inquiries may be acted upon by the court, as to the court shall seem fit."1 Special case. How to be drawn and dealt with. Preliminary question of law. Special case to Course where married women, infants, or lunatics are parties to it. Ord. XXXIV. r. 1. The parties to any cause or matter may concur in stating the questions of law arising therein in the form of a special case for the opinion of the court. Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby. Upon the argument of such case the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.2 2. If it appear to the court or a judge, that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the court or judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court or judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.3 3. Every special case shall be printed by the plaintiff, and signed by the several parties or their counsel or solicitors, and shall be filed by the plaintiff. Printed copies for the use of the judges shall be delivered by the plaintiff. 4. No special case in any cause or matter to which a married woman, (not being a party thereto in respect of her separate property or of any separate right of action by or against her,) infant, or person of unsound mind not so found by inquisition is a party, shall be set down for argument without leave of the court or a judge, the application for which must be supported by sufficient evidence that the statements contained in such special case, so far as the same affect the interest of such married woman, infant, or person of unsound mind, are true. 1 Sect. 66 of the Judicature Act, 1873. This section, however, is not intended to apply to district probate registries. 2 See 3 & 4 Will. 4, c. 42, s. 25, and ss. 46, 47, and 179 of the C. L. P. Act, 1852. In chancery, 13 & 14 Vict. c. 35. Special cases do not often arise in probate; see as to the form, Republic of Bolivia v. Bolivian Navigation Co., 24 W. R. 361. 3 See where the point of law does not arise on the pleadings, Metropolitan Board v. New River Co., 1 Q. B. D. 727, and on appeal 2 Q. B. D. 67. An order may be made after writ and before statement of claim. And a very strong case only will induce the court of Appeal to interfere; ibid. The facts, whether arising by pleading, affidavit or otherwise, made known to the court, will be acted upon. 1 Q. B. D. 727. As to the trial of separate questions of law and fact, see Pooley v. Driver, 5 Ch. D. 458. 5. Either party may enter a special case for argument by deliver- Form of entry ing to the proper officer a memorandum of entry, in the Form for argument No. 25 in Appendix G., and also if any married woman, infant, or person of unsound mind not so found by inquisition be a party to the cause or matter, producing a copy of the order giving leave to enter the same for argument. 6. The parties to a special case may, if they think fit, enter into Agreement of an agreement in writing, which shall not be subject to any stamp parties on duty, that, on the judgment of the court being given in the affirma- decision of tive or negative of the questions of law raised by the special case, special case. a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of the parties to the other of them, either with or without costs of the cause or matter; and the judgment of the court may be entered for the sum so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed on appeal. 7. This order shall apply to every special case stated in a cause Application of or matter, or in any proceeding incidental thereto. 8. Any special case may hereafter be stated, for the same purposes and in the same manner as was provided by the act 13 & 14 Vict. c. 35, and the same shall be deemed to be a special case stated in a matter within the meaning of this order. Ord. XXXV. relates only to general district registries of the High Court, which, as already pointed out, should not be confused with district probate registries. the order. Special cases stated, as by 13 & 14 Vict. c. 35. Place of trial. Place. Only ordinary tried elsewhere. CHAPTER XII. TRIAL. Ord. XXXVI. r. 1. There shall be no local venue for the trial of any action, except where otherwise provided by statute. Every action in every division sball, unless the court or a judge otherwise orders, be tried in the county or place named on the statement of claim, or (where no statement of claim has been delivered or required) by a notice in writing to be served on the defendant, or his solicitor, within six days after appearance. Where no place of trial is named, the place of trial shall, unless the court or a judge shall otherwise order, be the county of Middlesex. This rule appears to leave the selection entirely in the discretion of the judge, to be decided according to convenience and expense. The trial of all probate actions usually takes place under the Probate Act in London, or at a district county court under s. 10 of the Probate Act of 1858. The powers of the court are those in this rule contained. Probate actions are tried either in the Probate Division, or, if the estate be sufficiently small, in the local county court.1 To save expense and delay a probate issue has at times questions are been sent to an assize; but where the questions are peculiar or not ordinary, as revocation of probate, the property large, and delay in calling in the probate considerable, trial has been ordered in London.2 Place of trial, how determined. An application to send a probate cause for trial elsewhere than in the Probate Court-as to the assizes-must have been on an affidavit in support of the application. Here the affidavit failing, the trial was in London. 1 See ante, p. 1. 2 Ridgway v. Abington, 32 L. J., Prob. 107; 11 W. R. 500. 3 Brandreth v. B., 2 Sw. & Tr. 448, and 31 L. J., Prob. 153. But if the estate were within the County Court jurisdiction, doubtless an affidavit to try the suit elsewhere would be requisite. Consent was not sufficient. An affidavit giving reasons Trial. must have been filed. Where one party applied for trial at assizes on the ground of expense, and the other for trial in London on the ground of delay (November till the spring assizes), the court ordered the trial at the assizes.2 Where, on application by consent for trial at an assize, the affidavit showed only that the whole estate was under 3007., a further affidavit was directed to prove, if it were so, that the personalty was not under 2007., which would give the county court jurisdiction.2 A question of destruction animo revocandi where the will was missing was held on motion for trial at an assize as a 'proper case to be tried before the Court of Probate." 993 "The practice as laid down in the orders must be observed, and a judge will not use the powers conferred upon him without good cause shown," and hence an application for a local trial three months after delivery of the statement of claim, on apparently an afterthought, was rejected under this Order. rection. In directing an issue to be tried at the assizes, the court Power on dihas only power to order it to be tried before a judge of assize, with a jury; but if the parties consent to a trial before a judge only, they can effect that object by applying to the judge, who will try the cause." When ordering a trial at the proper county court on the requisite affidavit, the Probate Court will only direct that all papers in the cause be transmitted there. The Trial. Issues of fact, or partly of fact and partly of law. Mixed issues, how tried. Cases inconvenient for juries. In other cases Plaintiffs may Also defen- Practice as to trial by jury. mode of trial, with or without a jury, is in the discretion of the county court judge.1 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 principal act could, without any consent of parties, have been tried without a jury. Of issues of fact and law, the court ordered trial of the former by jury, and of latter before itself alone.2 Where the main question is one of mixed law and fact, and, as such, more satisfactorily determined by a judge than a jury, the court has heard it before itself alone.3 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. 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. 7. (a.) In every cause or matter, unless under the provisions of Rule 6 of this Order a trial with a jury is ordered, or under Rule 2 of this Order either party has signified a desire to have a trial with a jury, the mode of trial shall be 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 or special referee with or without assessors: (b.) The plaintiff in any cause or matter in which he is entitled to a jury may have the issues tried by a special jury, upon giving notice in writing to that effect to the defendant at the time when he gives notice of trial: (c.) The defendant, in any cause or matter in which he is entitled to a jury, may have the issues tried by a special jury, on giving notice in writing to that effect at any time after the close of the pleadings or settlement of the issues and before notice of trial, or if notice of trial has been given, then not less than six clear days before the day for which notice of trial has been given. When an order is made for trial by special jury, it has Probate may send the cause to such 1 Norris v. Allen, 2 Sw. & Tr. 2 Crispin v. Doglione, 31 L. J., Prob. 64; 2 Sw. & Tr. 493. 3 Smith v. Hoad, 3 Sw. & Tr. 463. 4 Sugg v. Silber, 1 Q. B. D. 362; Clements v. Norris, W. N., 8th Dec., 1877, p. 248. |