notice of trial 111. Where the defendant in any case, or plaintiff in replevin, gives notice of Remedy for his intention to try the cause by a special jury, and the venue is in London delay by or Middlesex, the Court or a judge, if satisfied that such notice is given for by special the purpose of delay, may order that the cause be tried by a common jury, jury. or make such other order as to the trial of the cause as such Court or judge shall think fit. 112. Where notice has been given to try by special jury, either party may, six days before the first day of the sittings in London or Middlesex, or adjournment day in London, or commission day of the assizes, give notice to the sheriff that such cause is to be tried by a special jury; and in case no such notice be given no special jury need be summoned or attend, and the cause may be tried by a common jury, unless otherwise ordered by the Court or a judge. 113. In all cases where notice is not given to the sheriff that the cause is to be tried by a special jury, and by reason thereof a special jury is not summoned or does not attend, the cause may be tried by a common jury, to be taken from the panel of common jurors, in like manner as if no proceedings had been had to try the cause by a special jury. 114. A writ of view shall not be necessary or used, but, whether the view is to be had by a common or special jury, it shall be sufficient to obtain a rule of the Court or judge's order, directing a view to be had; and the proceedings upon the rule for a view shall be the same as the proceedings heretofore had under a writ of view; and the sheriff, upon request, shall deliver to either party the names of the viewers, and shall also return their names to the associate for the purpose of their being called as jurymen upon the trial. See below, p. 752. Notice to sheriff of trial by special jury. If special jury not sum moned, cause to be tried by a common jury. View to be by rule without writ. so returned same as before 115. The jurors contained in such panels as aforesaid shall be the jurors to Proceedings try the causes at the assizes and sittings for which they shall be summoned before jurors respectively; and all such proceedings may be had and taken before such juries in like manner, and with the like consequences in all respects, as before any this Act. jury summoned in pursuance of any writ or writs of venire facias juratores, distringas juratores, or habeas corpora juratorum, before this Act. Sects. 104-115 are applied to proceedings at law on the Revenue side of the King's Bench Division by Rule 75 (p. 765). The repeal for other purposes of sects. 104, 109, 111, does not affect such application. And with respect to the admission of documents, be it enacted as follows: 117. Either party may call on the other party by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is in the opinion of the master a saving of expense. See below, p. 750. Admission of Admission of documents. 118. An affidavit of the attorney in the cause, or his clerk, of the due signa- Proof of ture of any admissions made in pursuance of such notice, and annexed to the admissions. affidavit, shall be in all cases sufficient evidence of such admissions. Proof of notice to produce. 119. An affidavit of the attorney in the cause, or his clerk, of the service of any notice to produce, in respect of which notice to admit shall have been given, and of the time when it was served, with a copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of the original of such notice, and of the time when it was served. Sects. 117-119 are applied to proceedings at law on the Revenue side of the King's Bench Division by Rule 76 (p. 765). Their repeal by the Statute Law Revision and Civil Procedure Act, 1883 (46 & 47′ Vict. c. 49), does not affect such application. 154-157, 159-166. [These groups of sections were applied by Rules 101, 103 respectively (p. 769). They have been omitted, as they relate to proceedings in error, and, owing to the application of Ord. LVIII. by Ord. LXVIII. r. 2, may now be regarded as obsolete.] Husbands and wives of parties to be admissible witnesses; except in THE EVIDENCE AMENDMENT ACT, 1853. (16 & 17 VICT. c. 83.) [Applied to proceedings at law on the Revenue side of the King's Bench Division by An Act to amend an Act of the Fourteenth and Fifteenth Victoria, Chapter [Preamble repealed by the Statute Law Revision Act, 1892 (55 & 56 Vict. c. 19).] 1. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any Court of justice, or before any person having by law or by consent of parties authority to hear, receive and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action, or other proceeding may be brought or instituted, or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce or by deposition according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding. 2. Nothing herein shall render any husband competent or compellable to criminal and give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband, in any criminal proceeding, or in any proceeding instituted in consequence of adultery. other cases; and not compelled to disclose communications. Short title. Words in italics repealed by the Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68), s. 1. 3. No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage. 4. [Repealed by the Statute Law Revision Act, 1875 (38 & 39 Vict. c. 66).] 5. In citing this Act in other Acts of Parliament, or in any instrument, document, or proceeding, it shall be sufficient to use the expression, “The Evidence Amendment Act, 1853." 6. [Repealed by the Statute Law Revision Act, 1875 (38 & 39 Vict. c. 66).] THE COMMON LAW PROCEDURE ACT, 1854. (17 & 18 VICT. c. 125.) 19. It shall be lawful for the Court or judge, at the trial of any cause, where Power to they or he may deem it right for the purposes of justice, to order an adjourn- adjourn trial. ment for such time, and subject to such terms and conditions as to costs, and otherwise, as they or he may think fit. oath in 20. If any person called as a witness, or required or desiring to make an Affirmation affidavit or deposition, shall refuse or be unwilling from alleged conscientious instead of motives to be sworn, it shall be lawful for the Court or judge or other presiding certain cases. officer, or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following; videlicet, "I A. B. do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is, according to my religious belief, unlawful; and I do also solemnly, sincerely, and truly affirm and declare, &c." Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form. false 21. If any person making such solemn affirmation or declaration shall persons wilfully, falsely, and corruptly affirm or declare any matter or thing, which, if making a the same had been sworn in the usual form, would have amounted to wilful affirmation to and corrupt perjury, every such person so offending shall incur the same penalties as by the laws and statutes of this Kingdom are or may be enacted or provided against persons convicted of wilful and corrupt perjury. 22. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. be subject to the same punishment as for perjury. How far a party may discredit his own witness. statements of 23. If a witness, upon cross-examination as to a former statement made by Proof of conhim relative to the subject matter of the cause, and inconsistent with his tradictory present testimony, does not distinctly admit that he has made such statement, adverse proof may be given that he did in fact make it; but before such proof can be witness. given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. nation as to previous statements in 24. A witness may be cross-examined as to previous statements made by Cross-examihim in writing, or reduced into writing, relative to the subject-matter of the cause without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory writing. proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit. Proof of previous conviction of a witness may be given. Attesting witness need not be called, except in certain cases. Comparison of disputed writing. Provision documents at the trial. 25. A witness in any cause may be questioned as to whether he has been convicted of any felony or misdemeanor, and, upon being so questioned, if he either denies the fact, or refuses to answer, it shall be lawful for the opposite party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for such offence, purporting to be signed by the clerk of the Court, or other officer having the custody of the records of the Court where the offender was convicted, or by the deputy of such clerk or officer, (for which certificate a fee of five shillings and no more shall be demanded or taken,) shall, upon proof of the identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same. 26. It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by admission, or otherwise, as if there had been no attesting witness thereto. 27. Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the Court and jury as evidence of the genuineness, or otherwise, of the writing in dispute. 28. Upon the production of any document as evidence at the trial of any for stamping cause, it shall be the duty of the officer of the Court whose duty it is to read such document to call the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid. Officer of the Court to receive the duty and penalty. 29. Such officer of the Court shall, upon payment to him of the whole or (as the case may be) of the deficiency of the stamp duty payable upon or in respect of such document, and of the penalty required by statute, and of the additional penalty of one pound, give a receipt for the amount of the duty or deficiency which the judge shall d termine to be payable, and also of the penalty, and thereupon such document shall be admissible in evidence, saving all just exceptions on other grounds; and an entry of the fact of such payment and of the amount thereof shall be made in a book kept by such officer; and such officer shall, at the end of each sittings or assizes (as the case may be), duly make a return to the Commissioners of the Inland Revenue of the monies, if any, which he has so received by way of duty or penalty, distinguishing between such monies, and stating the name of the cause and of the parties from whom he received such monies, and the date, if any, and description of the document for the purpose of identifying the same; and he shall pay over the said monies to the Receiver General of the Inland Revenue, or to such person as the said Commissioners shall appoint or authorize to receive the same; and in case such officer shall neglect or refuse to furnish such account, or to pay over any of the monies so received by him as aforesaid, he shall be liable to be proceeded against in the manner directed by the eighth section of an Act passed in the Session of Parliament holden in the thirteenth and fourteenth years of 13 & 14 Vict. the reign of Her present Majesty, intituled An Act to repeal certain Stamp Duties, and to grant others in lieu thereof, and to amend the Laws relating to the c. 97. Stamp Duties; and the said Commissioners shall, upon request, and production of the receipt herein before mentioned, cause such documents to be stamped with the proper stamp or stamps in respect of the sums so paid as aforesaid: Provided always, that the aforesaid enactment shall not extend to any document which cannot now be stamped after the execution thereof on payment of the duty and a penalty. Sects. 28 and 29 were repealed by the Inland Revenue Repeal Act, 1870 (33 & 34 Vict. c. 99); see now the Stamp Act, 1891 (54 & 55 Vict. c. 39), s. 14. 30. No document made or required under the provisions of this Act shall be No document liable to any stamp duty. 31. No new trial shall be granted by reason of the ruling of any judge that the stamp upon any document is sufficient, or that the document does not require a stamp. 32. Error may be brought upon a judgment upon a special case in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the Court of Error shall, as nearly as may be, be the same as in the case of a special verdict; and the Court of Error shall either affirm the judgment or give the same judgment as ought to have been given in the Court in which it was originally decided, the said Court of Error being required to draw any inferences of fact from the facts stated in such special case which the Court where it was originally decided ought to have drawn. Sects. 19-32 are applied by sect. 103 of this Act, which in its turn is applied to proceedings on the Revenue side of the King's Bench Division by the Crown Suits, &c. Act, 1865, ss. 22, 35. As to sects. 28, 29, see note to sect. 29. The repeal of sects, 19, 21—27, 30, 31, 32, for other purposes does not affect their application here, but sect. 32 is now rendered obsolete by the application of Ord. LVIII., as to appeals, by Ord. LXVIII. r. 2. under this Error may be brought on a special case. 34. In all cases of rules to enter a verdict or nonsuit upon a point reserved If rule nisi at the trial, if the rule to show cause be refused or granted and then discharged refused, party or made absolute, the party decided against may appeal. may appeal. 35. In all cases of motions for a new trial upon the ground that the judge Appeal upon has not ruled according to law, if the rule to show cause be refused, or if rule discharged or granted be then discharged or made absolute, the party decided against may absolute. appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or, provided the Court in its discretion think fit that an appeal should be allowed; provided, that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed. 36. The Court of Error, the Exchequer Chamber, and the House of Lords Courts of shall be Courts of Appeal for the purposes of this Act. Error to be Courts of Appeal. 37. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and to one of the masters of the Court, Notice of within four days after the decision complained of, or such further time as may appeal. be allowed by the Court or a judge. Sects. 34-37 are applied by the Crown Suits, &c. Act, 1865, s. 31. Their repeal for other purposes does not affect their application here, subject, however, to the effect of Ord. LVIII., applied by Ord. LXVIÏÏ. r. 2. 39. The appeal hereinbefore mentioned shall be upon a case to be stated by Form of the parties, (and in case of difference to be settled by the Court or a judge of the appeal. |