Certified

copy of will to be sufficient evidence.

Probate or office copy to be

evidence of the will in suits concerning real

estate, save where the validity of the will is put in issue. (20 & 21

Vict. c. 77, s. 64, Eng).

course of cross-examination he was got to write something on a piece of paper, this was allowed to be shown to the jury for the purpose of comparison (Cobbett v. Kilminster, 4 F. & F. 490).

Where an anonymous letter, not regularly proved, was casually handed to a witness without the attention of the Court, or the opposite counsel being called to it, and was made use of for the purpose of comparison of handwriting, whereupon the plaintiff denied that the letter was in his handwriting, the Court set aside a verdict had for the defendant (Egan v. Cowan, 2 Ir. Jur. N. S. 394). In the same case the Court intimated that the genuineness of a document not in issue and used solely for the purpose of comparison, is a question for the Judge and not for the jury, and the decision of the Judge upon the point may be reversed by the Court above.

31. In any action at law or suit in equity where, according to the existing law, it would be necessary to produce and prove an original will or other testamentary instrument in order to establish a devise or other testamentary disposition, probate or letters of administration of such will or other testamentary instrument, or a copy thereof purporting to be certified as a true copy by some officer of the testamentary Court in which the same shall have been lodged, shall be sufficient evidence of such will or other testamentary instrument and its contents; provided that the party intending to produce such probate, letters of administration, or copy shall have given seven days' notice of such his intention to the opposite party, and unless the party receiving such notice shall, within three days thereafter, by a counter notice, require the production and proof of the original will or other testamentary instrument (y).

(y) This section has been repealed by 20 & 21 Vict. c. 79, 8. 70. By sect. 68 of that Act, it is, however, enacted that, "in any action at law or suit in equity, when, according to the existing law, it would be necessary to produce and prove an original will in order to prove a devise or other testamentary disposition, of or affecting real estate, it shall be lawful for the party intending to establish in proof such devise or other testamentary disposition, to give to the opposite party seven days, at least, before the trial or other proceeding in which the said proof shall be intended to be adduced, notice that he intends at the said trial or other proceeding, to give in evidence as proof of the devise or other testamentary disposition, the probate of the said will, or the letters of administration with the will annexed, or a copy thereof stamped with any seal of the Court of Probate, and in every such case such probate, or letters of administration, or copy thereof respectively, stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents, notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid in a contentious cause or matter as herein provided, unless the party receiving such notice shall, within three days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition."

proved at Common Law.

counter

notice served

At Common Law in order to prove a devise of lands the will itself should How will be produced, for probate of the will was not even secondary evidence. This, however, has been altered by the enactment referred to above. If the requisite notice be given under the above enactment of the inten- Where no tion of the party to give the probate, &c., in evidence, and the opposite party does not give the counter-notice prescribed, he may, nevertheless, at the trial dispute the validity of the will, for "sufficient evidence" only means prima facie evidence ( Barraclough v. Greenough, L. R. 2 Q. B. 612). When the notice required is given and no counter-notice served, probate of a will obtained prior to the passing of the Act and sealed with the seal of the Prerogative Court is admissible, and does not require to be sealed with the seal of the Probate Court (Irwin v. Callwell, 12 Ir. C. L. R. 144). The notice Form of must specify the particular purpose for which the probate is to be given in notice. evidence (Cope v. Mooney, 9 Ir. Jur. N. S. 184, overruling upon this point Irwin v. Callwell, ubi supra). The notice in question should be given to the attorney of the opposite party (Barraclough v. Greenough, ubi supra). For a form of notice, see Field Dunn and Biddle's Chancery Forms, 730. Probate of a will is not admissible evidence under this section to prove the appointment of a testamentary guardian (Cope v. Mooney, 9 Ir. Jur. N. S. 184).

32. Provided always, that in case any such counter-notice shall be served, it shall be lawful for the party intending to produce such probate, letters of administration, or copy, to apply to the Court or a Judge for an order that such probate, letters of administration, or copy shall be deemed and taken as sufficient evidence of such will or other testamentary instrument, and its contents, and thereupon the Court or Judge may make such order in relation thereto as may be fit, and the said Court or Judge may thereupon determine by whom the costs of such application shall be paid, and upon what terms, if any, such will or other testamentary document shall be produced (z).

(z) This section has been repealed by 20 & 21 Vict. c. 79, 8. 70.

Judge may,

Court or on applica Court or Judge for order certam

tion to such

such purpose,

documents to be taken as

sufficient

evidence of

will, &c.

proof of will.

33. In every case in which, after the notices mentioned in As to costs of the last section, the original will or other testamentary instrument shall be produced and proved, it shall be lawful for the Court or Judge before whom such evidence shall be given to direct by which of the parties the costs thereof shall be paid (a).

(a) This section has been repealed by 20 & 21 Vict. c. 79, s. 70, and in its place it is enacted by sect. 69 of the same Act, that "in every case in which in any such action or suit, the original will shall be produced and proved, it shall be lawful for the Court or a Judge before whom such evidence shall

Provision as to documents produced at trial and not sufficiently stamped. 17

125, s. 28.

be given to direct by which of the parties the costs thereof shall be paid." A similar provision is contained in the English Probate Act, 20 & 21 Vict. c. 77, s. 65.

34. Upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the Court whose duty it is to read such document to call the atis Vict. c. tention 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 (b).

Stamping

trial.

(b) The provisions of the present section only apply to such documents as documents at might have been stamped in the ordinary way up to the period of the trial, and they do not therefore extend to cases where the document in question should have been stamped at the time of the execution or within a limited period afterwards (Londonderry Steamboat Co. v. Middleton, 7 Ir. C. L. R. 361).

In Connor v. Cronin, 7 Ir. C. L. R. 480, it was held that a stamped copy of a lost unstamped original document cannot be received in evidence. This case has, however, been doubted (Herbert v. Rae, 13 Ir. Ch. 25).

35. 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 determine 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 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 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 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

glect to pay

proceeded

directed by

authorize to receive the same; and in case such officer shall If officer neneglect or refuse to furnish such account, or to pay over any over monies of the monies so received by him as aforesaid, he shall be he shall be liable to be proceeded against in the manner directed by the against as eighth section of an Act passed in the Session of Parliament 114 Vict; holden in the thirteenth and fourteenth years of the reign of c. 57. 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 Stamp Duties; and the said Commissioners shall, upon request, and production of the receipt hereinbefore 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.

36. No document made or required under the provisions of No document this Act shall be liable to any stamp duty.

37. 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 (c).

to require a Stamp. 17 &. 18 Vict. c. 123, s. 30.

No new trial to sufliciency

for ruling as

of stamp. 17 & 18 Vict.

c. 125, s. 31.

stamp.

(c) It has been held that the Judge should not reserve a question for the Reserving Court above as to whether an instrument is properly stamped or not question as to (Siordet v. Kuczinski, 17 C. B. 251); and even where the parties consent, it would appear that the question should not be reserved, and that under the above section the Court has no jurisdiction to entertain any motion upon a point reserved upon the stamp law (Heiser v. Grout, 5 H. & N. 35); but see Eames v. Smith, 1 Jur. N. S. 1025. In Herbert v. Beyhan, 8 Ir. C. L. R. Ap. 55, it was, however, held that if a question arose at Nisi Prius as to the liability of a document to stamp duty, the Judge may reserve the question for the opinion of the Court, and order a conditional lodgment of the stamp duty and penalty; and such a lodgment is not a determination of right in favour of the Crown.

If the Judge refuses to admit a document on the ground of an instrument being insufficiently stamped, his ruling is open to review (Sharples v. Rickards, 2 H. & N. 57).

38. Error may be brought upon a judgment upon a special case stated under this Act in any award in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary; and the proceedings for bringing such 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

Error may be

brought on a special case.

17 & 18 Vict.

c. 123, s. 32.

Grounds to

be stated in rule nisi tor

new trial. 17 & 18 Vict. c. 125, s. 33.

New trial.

Grounds on which granted.

Misdirection.

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 (d).

(d) This section differs from the corresponding English section, in expressly providing for special cases stated under the Act, "in any award.' Under the English Act error does not lie upon the judgment upon a special case stated by an arbitrator (Gumm v. Fowler, 2 E. & E. 895).

39. In every rule Nisi for a new trial or to enter a verdict or nonsuit, the grounds upon which such rule shall have been granted shall be shortly stated therein (e).

(e) This and the following sections deal with motions for a new trial, and for leave to enter a verdict or nonsuit upon a point reserved. Formerly no appeal lay from the order of the Court upon applications of this description, but now under sects. 40 and 41, an appeal may be brought in the cases therein provided for.

A motion for a new trial is the remedy applicable where a miscarriage of justice has taken place at the trial. Where the contention of the party is, that notwithstanding the finding of the jury he is entitled to the judgment of the Court, his course is to move in arrest of judgment, or for judgment non obstante veredicto, as to which see ante, p. 192. In place of moving for a new trial in cases where that remedy is applicable, the party aggrieved may in certain cases tender a bill of exceptions, as to which, see ante, p. 135. Where a party moves for a new trial, he will not in general, be allowed to proceed at the same time with a bill of exceptions involving the same question (Bloomfield v. Johnson, 13 Ir. C. L. R. Ap. 57; Butier v. Mountgarrett, 1 Ir. Jur. N. S. 474); nor will he be allowed upon such a motion to impeach the validity of his adversary's pleadings (Lysaght v. Delacour, 8 Ir. C. L. R. 453).

As to the grounds upon which a new trial may be applied for, see Broom's Commentaries, 3rd ed., p. 206; where most of the cases are collected. As a general rule, the grounds upon which a new trial will be granted, are (1), in consequence of a mistake on the part of the Judge; (2) the default or misconduct of the opposite party; (3) the default or misconduct of the jury, and (4), where though the verdict is not open to objection upon any of the grounds just mentioned, yet a new trial is necessary in order that complete justice may be done.

As regards the first of the grounds referred to above, a new trial will generally be granted when the Judge has misdirected the jury. A misdirection consists in the mis-statement to the jury of some legal principle involved in the case, or submitting as the basis of their verdict questions immaterial, irrelevant, or not warranted by the evidence, or not sufficiently explaining the law involved in the case (see Elliott v. The South Devon Railway Co., 2 Ex. 725; in which case a new trial was granted in consequence of the Judge not having sufficiently defined the word "town" at the trial). When a mi: