counsel for the plaintiff has a right to reply. Should a point of law arise, the Court will hear two counsel on each side.

At the conclusion of the trial, unless the judge defers his decision, he gives an absolute judgment or a judgment subject to a reference to the registrar and merchants (see ante, O. xxxi.). But in either case the decree will then be entered in the minute book by the registrar (see O. xli., and the remarks thereon 1).

Each witness during the hearing of the cause should be kept out of Court until his evidence is required. After each witness is sworn, the solicitor who produces him should hand a slip of paper containing the name and number of the cause and the full name of the witness to the registrar. For fees payable, see App. II., p. cxxix.

21. The judge may, if he think it expedient for the interests of Adjourn justice, postpone or adourn the trial for such time and upon such ment. terms, if any, as he shall think fit.

28. Trials with assessors shall take place in such manner and upon Trials with such terms as the Court or a judge shall direct.

assessors.

masters

The assessors of the judge, where he requires advice on Trinity the nautical facts of the case, are two of the Trinity masters; their duty is solely to advise, and the responsibility for the decision of the case rests wholly with the judge (The Magna Charta, 25 L. T. N. S. 512 (P. C.); The Aid, L. R. 6 P. D. 84; 50 L. J. Ad. D. 40). In actions of damage and salvage their attendance may be obtained as a matter of course by filing a præcipe in the registry requesting their attendance (for fees payable see App. II.). In other than these actions their attendance will only be granted after application to the judge; in salvage cases the practice has been assimilated to that in actions for damage by collision. Where Trinity masters are present, evidence in regard to matters of nautical skill is inadmissible (The Ann and Mary, 2 W. Rob. 189; The Sir Robert

1 Rules 24, 25, 29a-34 of this Order are not applicable to trials in the Admiralty Division.

Peel, 43 L. T. N. S. 364 (C. A.); 4 Asp. M. C. N. S. 321). Where one party applies the judge will, in practice, exercise his discretion as to granting the request (The Houthandel, 1 Spk. 27). A fee of two guineas a day is paid to each of the assessors. In damage causes where each party is held to blame, the fees are divided between the two parties.

Inspection Either party may apply to the Court for an order perby Trinity masters. miting the assessors to view any property the inspection of which may be material to the isaue in dispute (A. C. A. 1861, s. 18); in so doing they should if necessary be accompanied by the solicitors of the parties (The Germania, 37 L. J. Ad. 59; 19 L. T. N. S. 20.

27. The Court or a judge may, if it shall appear either before or at the trial that any issue of fact can be more conveniently tried before a jury, direct that such issue shall be tried by a judge with a jury.

29. In any cause the Court or a judge of the division to which the cause is assigned may, at any time or from time to time, order the trial and determination of any question or issue of fact, or partly of fact and partly of law, by any commissioner or commissioners appointed in pursuance of 29th section of the said Act, or at the sittings to be held in Middlesex or London, and such question or issue shall be tried and determined accordingly.

Evidence.

ORDER XXXVII.

EVIDENCE GENERALLY.

1. In the absence of any agreement between the parties, and subject to these rules, the witnesses to the trial of any action or at any assessment of damages, shall be examined vivâ voce and in open Court, but the Court or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or judge may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court or judge that the other party bona fide desires the production

of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

It is now the rule that witnesses are examined viva voce before the Court, unless the parties consent that the evidence shall be taken on affidavit, or unless the judge on application orders the evidence to be taken by affidavit or the witness to be examined before a commissioner or examiner. Sometimes also witnesses are examined in Court before the actual hearing of the cause, either by consent of the parties or by an order obtained by a summons. Such a consent as above mentioned must be in writing (The New Westminster Brewery Co. v. Hannah, L. R. 1 Ch. D. 278; 24 W. R. 137). As to evidence on affidavit, see post, O. xxxviii; and, as to examination of witnesses before an officer of the Court, see post, r. 4 of this order; and, as to rejection of evidence to nautical skill where Trinity masters are present, see ante, O. xxxvii., r. 28. As regards logs of light-ships or light-houses, a copy accompanied and certified by an affidavit from the official of the Trinity House is usually admitted in evidence. Strictly speaking, the officer of the Trinity House should produce the copy (see The Maria das Dores, Br. & L. 27).

The log is not evidence for the person who produces it; and, even if purporting to be made by the first mate,. cannot be produced in evidence if he has died since the collision; and the same rule applies to depositions of a master made before a receiver of wreck (The Henry Coxon, L. D. 3 P. D. 156; 47 L. J. Ad. D. 83). There is an important distinction to be kept in view between declarations by a master and declarations by the officers and crew, since the former are evidence against the owners as being made by their agent, while the latter are inadmissible (The Actaon, 1 Spk. 176; The Manchester, 2 W. Rob. 62). The admission of a pilot is also inadmissible (The Lord Seaton, 9 Jur. 603; 2 W. Rob. 291), unless it is part of the res gesta (The Schwalbe, Swa. 521).

Enforcing attendance of witness.

Costs.

Evidence on affidavit.

Examina

tion of witnesses before officer

of court or other person.

The attendance of witnesses and the production of documents, &c., is enforced by the usual writs of subpana ad testificandum and subpœna duces tecum (see 3 & 4 Vict. c. 65, s. 9). By A. C. Act, 1861, s. 21, service in any part of Great Britain and Ireland of either of these writs issued under the seal of the Court of Admiralty was as effectual as if the same had been served in England or Wales: this would apply to the Admiralty Division. The writ is issued from the registry.

The costs of material witnesses, who, though in attendance at the hearing, have not been called, are allowed (The Biddick, 38 L. J. Ad. 24; 19 L. T. N. S. 705), but not those of a receiver of wreck, when certified copies of the statements made before him would have answered all purposes (The Cromwell, L. R. 3 Ad. 316).

2. Upon any motion, petition, or summons, evidence may be given by affidavit; but the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit.

3. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. The principles of evidence stated in this rule must be strictly adhered to. As to filing, see next page.

4. The Court or a judge may, in a cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before any officer of the Court, or any other person or persons, and at any place, of any witness or person, and may order any deposition so taken to be filed in the Court, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct.

Proceedings under this rule are still also regulated by rules 88-95 of A. C. R., 1859. See Appendix III. p. 389. The following rules were added in April, 1880:

:

3a. Every affidavit shall be drawn up in the first person, and shall Form of affidavits. be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule.

3b. Every affidavit shall state the description and true place of Descripabode of the deponent.

tion and address of

stated.

3c. In every affidavit made by two or more deponents the names deponent of the several persons making the affidavit shall be inserted in the to be jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both (or all) of the "above-named" deponents. 3d. Every affidavit shall be filed in the Central Office. shall be appended to every affidavit a note showing on whose it is filed.

Affidavits made by two or

There more behalf

deponents. Affidavit to be filed.

Altera

affidavits.

3e. No affidavit having in the jurat or body thereof any interlineations, alteration, or erasure shall, without leave of the Court or tions in a Judge, be read or made use of in any matter depending in Court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, if taken at the Central Office, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it.

rate per

3f. Where an affidavit is sworn by any person who appears to the Affidavits officer taking the affidavit to be illiterate, the officer shall certify in by illitethe jurat that the affidavit was read in his presence to the deponent, sons. that the deponent seemed perfectly to understand it, and that the deponent made his or her signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court or a Judge is otherwise satisfied that the affidavit was read over to and apparently perfectly understood by the deponent.

of affidavits, and use of

3g. In cases in which by the present practice an original affidavit Stamping is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left with the proper officer in Court or in Chambers, office who shall send it to the Central Office. An office copy of an affi- copies. davit may in all cases be used, the original affidavit having been previously filed in the Central Office, and the copy duly authenticated with the seal of that office.