judge on summons or motion can dispense with notice of trial, or abridge it and fix an early day for the hearing of the cause, as is often done when there is any pressing reason for a speedy trial.

10a. Unless within six days after notice of trial is given the cause Entry for shall be entered for trial by one party or the other, the notice of trial trial. shall be no longer in force.

11. Notice of trial shall not be or operate as for any particular Notice. sittings; but shall be deemed to be for any day after the expiration of the notice on which the action may come on for trial in its order upon the list.

As soon as notice has been given to the opposite side, the party who is desirous of having the action tried should enter his cause at the registry, where it will be placed on the list for hearing, and will then come on according to its position on the list, or according to the terms of any order which may have been made by the judge on application to fix a day for the hearing. Actions proceeding in district registries must be entered at such registries, and the papers are then forwarded to London. And as to fixing an early day for the trial, see note to preceding rule.

13. No notice of trial shall be countermanded, except by consent, Counteror by leave of the Court or a judge, which leave may be given subject manding to such terms as to costs, or otherwise, as may be just.

notice of trial.

14. If the party giving notice of trial (for London or Middlesex), Entry of omits to enter the cause for trial on the day of or day after giving action. notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under the last rule, within four days, enter the action for trial.

17. The party entering the action for trial shall deliver to the officer Copies of two copies of the whole of the pleadings in the action, one of which pleadings. shall be for the use of the judge at the trial. Such copies shall be

in print, except as to such parts, if any, of the pleadings as are by

these rules permitted to be written.

These pleadings must be delivered at the registry.

18. If, when an action is called on for trial, the plaintiff appears, Non-apand the defendant does not appear, then the plaintiff may prove his pearance of claim, so far as the burden of proof lies upon him.

defendant

at hearing.

Non-appearance of plaintiff.

Practice at the hearing.

19. If, when an action is called on for trial, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counterclaim, shall be entitled to judgment dismissing the action, but, if he has a counter-claim, then he may prove such claim so far as the burden of proof lies upon him.

One of the first occasions on which rule 18 was used in the Admiralty Division was in the case of The William Lecklie, Nov. 10, 1881. The case was shortly opened, and one witness called to prove the facts. Generally, however,to come to ordinary defended actions,—it is the practice to dispense with any opening statements, and to proceed at once to the evidence. Unless the case is one of great length or difficulty the costs of two counsel only on each side will be allowed on taxation. But in a salvage suit plaintiffs whose interests are adverse to each other may be represented by separate counsel (The Scout, L. R. 3 Ad. 514 n.; 41 L. J. Ad. 42).

The rule that the party on whom the burden of proof lies must begin is applicable to Admiralty actions. And after some diversity of practice it is now settled that in all damage causes, whether inevitable accident be pleaded or not, the plaintiff must begin (The Otter, L. R. 4 Ad. 203; 30 L. T. N. S. 43). Where there are rival salvors, and the actions have been consolidated, those have the right to begin who have first entered their causes (The Morocco, 24 L. T. N. S. 598).

Opening statements by counsel are, as above stated, unusual, and the witnesses are at once examined by their counsel, are cross-examined by the opposite counsel, and then re-examined. But the counsel of rival salvors may cross-examine each other's witnesses on points as to which they are at issue (The Morocco, 24 L. T. N. S. 598). When the evidence is given on affidavits, these have only to be read to the Court. After the evidence on both sides is concluded, the leading counsel for the plaintiff addresses the Court, who is followed by that of the defendant, and the

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.

ment.

21. The judge may, if he think it expedient for the interests of Adjourn justice, postpone or adourn the trial for such time and such upon 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 bonâ 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 Acteon, 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). Q