tiff that 'the defendant required inspection before putting
in a statement of defence (p). And a petition for inspec-
tion of documents connected with a lunatic's estate by
one chaining under him, must he supported by affidavit
showing prima facie title (q).
57. If any party after receiving a written notice to
produce for inspection omits to notify a time for, or
objects to, inspection, the party desiring it may apply to
a Judge for an Order. If the documents are not referred
to in pleadings or affidavits, or disclosed in an affidavit of
documents, such application shall be founded on an
affidavit showing, (1) what are the documents, (2) the
party's right to inspect, (3) that they are in the posses-
sion* or power of the other party (r). On objection made
by a party to discovery or inspection, and made on oath,
if on the ground that such documents tend to criminate
him (s), the Court or Judge shall determine whether or
not any issue or question should be determined first, and
the question of discovery or inspection reserved (t).
58. On non-compliance with an Order to answer in-
terrogatories, or for discovery or inspection, an Order
may, in the discretion of the Court (w), be made on appli-
cation by the party interrogating, &c, that (1) a plaintiff
have his action dismissed, or (2) a defendant his
defence (if any) struck out, or (3) that any such party
be attached (r), or any party's solicitor who, alter being
served as above, has neglected without reasonable excuse
to give notice to his client (w). But an Order for " ordi-
nary account," where the writ was so indorsed, or for
declaration of copartners, cannot be enforced by attach-
ment under this Rule (.r).
59. A party may admit
A. The truth of a case, wholly or partially, as stated
(/>) Webster r. Whewall, W. X. 1880, 142.
(q) In re Smyth (a Lunatic , W N. Ib80, 144.
(»•) 0. XXXI. rr. 17, IS.
(s) Webb v. East, 5 Ex. D. 108.
(t) 0. XXXI. r. 19.
(tt) Hartley v. Owen, W. N. 1876, 198.
(v) 0. XXXI. r. 20.
(to) Do. r. 22.
(x) Pike v. Kicue, 24 W. R. 322.
54 THE LAW OF PRACTICE.
in any pleading of another party, (1) expressly (y), or (2)
by implication, as e.g. of a minimum sum certified by his
own agent (;), or oi' a sum not denied to have been
received as stated in an affidavit put in by the other
party (a).
B. Documents, " saving just exceptions." A party
who, after written notice, unreasonably refuses or neglects
thus to admit, shall pay the costs of proving such docu-
ments, and costs of proving shall generally not be allowed
unless such notice has been given (b). But documents
thus admitted are not evidence unless formally put in
and marked by the Registrar (c).
60. Necessary inquiries or accounts, or additional
accounts, (d) may be directed by the Court or Judge at
any stage pending further questions to be tried in the
ordinary manner (e), but cannot be prosecuted in a Dis-
trict Registry except by direction of the Court or a Jus-
tice of the Division (/), nor can such Order be made on a
counterclaim before dealing with the original claim (</).
61. Evidence of witnesses at the trial of an action
shall be vivd rare and in open Court, unless
(1) By formal written (h) agreement between the
parties [on behalf of an infant defendant sufficiently given
by a guardian ad litem (/')], such agreement being equiva-
lent to an agreement for trial by a Judge without a
Jury (./) ; or
(2) If the Court or Judge have ordered that particular
&cta should be proved by affidavit, or that some affidavit
should be read ; or
(3) Where it is found necessary in the discretion (k) of
(y) 0. XXXTT. rr. 2, ?>.
(z) London SyndicaU \ . Lord, S Oh. D. 84.
(a) Freeman v. Cox, 8 Ch. D. 148.
On <>. X X XII. rr. 2, 3.
(c) Watson v. Rodwell, 11 Ch. I). 153.
[d] Barber v. MackreU, VI Cb. D. 534.
\e) 0. X X XIII.. and see 0. XL. r. 11 ; Turquand v. Wilson, 1 Ch. D.
85 ; Rumtey v. Reade, 1 Ch. D. 643.
tf i Irlam r. Irlam, 2 Ch. D. 608
< 7 ) Rdft v. Madaren, 3 Ch. I). 106
.//â– Westminster Brewery Co. v. //<nia<i/t, 1 Ch. D. 278.
(i) Knatehbuli â– . Fowler, 1 Ch. I). 604.
(j) Brooke v. Wigg, 8 Ch. I). 510.
'tuart v. Gladstone, 7 ( .'li. L>. 394..
EVIDENCE. AFFIDAVITS. 55
the Court or Judge to order on terms that the evidence
of any witnesses be taken elsewhere upon oath, by inter-
rogatories or otherwise, before an officer, commissioner,
examiner, or other such person, and tiled (/), even
where such depositions (being evidence tie bene esse) are
not in the handwriting of the examiner, but taken down
before other persons, and certified by the examiner to
have been read over and signed by the witness in his
presence (in). No Order shall be made under (2) or (3),
where it appears that the other party bond fide desires
the production of a witness for cross-examination, and
that he can be produced (n). Nor under similar circum-
stances can an affidavit used on a former occasion be
read at the trial (o). An examiner has no discretion to
admit, if objected to, (1) the public, or (2) a clerk or
agent of any of the parties who is to be subsequently
called (_/>). A commission may be ordered with costs
reserved, and without security (q).
62. Evidence upon any motion, petition, or summons,
may be given by affidavit ; but either party may apply
for an Order of the Court or a Judge for attendance for
cross-examination (r). Evidence on the Equity side of
the Exchequer Division may be generally by affidavit (s),
but in all cases of disputed facts the presumption is that
it should be oral (t).
63. The plaintiff's affidavits shall be filed and a list
delivered within fourteen days after agreement, as in 61
(1), or within time agreed upon by the parties, or allowed
by a Judge at Chiimbers ; the defendant's, within fourteen
days after such delivery, or &c, as above ; and the plain-
tiff's in reply within seven days, &c. Affidavits in reply
shall be confined to matters strictly in reply (u), but may
(at least, in the Chancery Division) also confirm the
(/) O. XXXVII. rr. 1, 4.
(m) Bolton \. Bolton, 2 Ch. D. 217.
(n) Banque Franco-JS'jyptienne v. Lutscher, W. N. 1S79, 183.
(o) Blackburn Union v. Brooks, 7 Ch. 1). t>3.
(p) In re Western of Canada <>H, Ac, Co., 6 Ch. D. 109.
(o) Spffler v. Paris Skating Rink Co., 27 W. It. 225.
(>•) o. XXXVII. r. 2.
\s) 0. LX11. r. 1, and (Exch.) Rules of March 14, 1866, r. 3.
it) Attorney General v. Metropolitan Railway Co., 5 Ex. D. 218.
(u) 0. XXXVIII. it. 1, 2, 3.
56 THE LAW OF PRACTICE.
plaintiff's evidence in chief (v). Semble, no further
affidavits can be filed, except on "terms of amending
pleadings (w).
64. Statements as to belief with its grounds are only
admitted in affidavits on strictly interlocutory motions (x),
and not in such as, while interlocutory in form, finally
decide rights of parties. But where a party in the Court
below admits such evidence, he may be precluded from
objecting to it before* the Court of Appeal (y). Affidavits
sworn before the partner of a local solicitor who has got
up the evidence are inadmissible (z).
65. "Within fourteen days (generally) after the time
limited for affidavits in reply, notice in writing may be
given to produce any deponent for cross-examination on
his affidavit (a), and where such affidavit includes accounts,
notice of the particular items for cross-examination must
be given, whether the party to be cross-examined is
merely an accounting party, or one who seeks to charge
by Ins account (b). Unless the deponent is produced
according to su<di notice, his affidavit shall not (except
by leave) be read as evidence, but it cannot therefore be
demanded that such affidavit be taken off the file (c).
The attendance of the deponent can be compelled in the
ordinary way by the party who lias received such notice (<h,
Evidence by affidavit shall be printed (e), unless semble
this is dispensed with by the consent of both parties (/).
0- /' ,<,-,,rl- v. Hooper, 7 Ch. D. 648.
(/'•i Roe v. Davits, 2 Ch. I>. 729. For former Chancery Rules as to filing
i,.-v. evidence, Bee Daniell's Ch. IV., p. 784 (5th edition). On admission of
farther vi/vd voce evidence in rebuttal, see Bigsby \. Dickinson, 4 Ch. I). 24 ;
Rogers v. Manby, W. X. 188o, luii ; and Taylor on Evidence therein referred
to.
I 0. XXXVII. r. 3.
(//) Gilbert v. Endean, 9 Ch. D. 259,
\~) Dukt of Northumberland v. Todd, 7 Ch. D. 777.
a 0. XXXVIII. r. I.
[b) Bate* r. Eley, 1 Ch. D. 473.
e Meyrick v. James, W. N. 1877, 120.
• XXXVIII. r. 5.
• Do. r. 6.
if) Attorney- General v. Pagha/m Harbour Reclamation Co , W. N. 1876,
PAET IV.
TRIAL.— EXECUTION.
66. Trial shall take place, unless otherwise ordered
by a Judge,
(1) Where named in the statement of claim, or
(2) If no place be named by the plaintiff, in Middlesex.
And any Order as to place of trial made by a Judge may
be discharged- or varied by a Divisional Court(a). The
trial and hearing shall be before a Judge, Judges, Judge
with assessors, Judge and jury, or before an Official or
Special Referee, with or without assessors (/>). And any
question or issue of fact, or of fact and law, arising in any
cause, may be ordered to be tried by any Commissioner
or Commissioners (c), including thereunder Judges of the
High Court of Justice and the Court of Appeal, Serjeants-
at-Law, or any of Her Majesty's Counsel, to whom such
commission may be assigned (d). Semble, the plaintiff is
bound by his election of one of the above modes of trial i .
Semble, no trial can, even by consent, be heard in
private, except where (1) lunatics or wards of Court are
concerned, (2) public trial would defeat the object of the
action, (3) where the Court follows the practice of the
old Ecclesiastical Courts (/).
67. Notice of trial may, whether evidence is to be by
affidavit or not (</), be given by the plaintiff at any time
(«) 0. XXXVI. r. 1.
(l>) Do. r. 2.
(f) Do. r. 29.
(</) J. A. 1873, ss. 29, 37 ; J. A. 1875, s. 8.
(e) Lascdles v. Butt, 2 Ch. D. 033. Bat see the effect of r. 5, a* stated in
para. 69.
(/) Xi /'<•■<, li'manv. Christopher, i Ch. D. 173.
(a) 0. XXXVIII. r. 6.
r> 3
5S THE LAW OF PRACTICE.
after the close of the pleadings, or with the reply (A), if
{semble) it close the pleadings, and the plaintiff is in a
position to deliver two copies of the whole of the proceed-
ings (i) ; and such notice may specify one of the above
modes of trial. The notice shall state whether it is for
trial of the action or of issues, and if in a Common Law
1 >i vision, shall state the place and day for which the action
is to be entered for trial (j), and, if in a Chancery action,
may do so (A). A Vice- Chancellor is sufficiently de-
scribed as " a Judge in Middlesex " {I). Ten days' notice
shall suffice, unless (1) it be otherwise ordered, or (2) the
plaintiff has consented to "short notice" of four days (m).
The cause is to be entered, if in London or Middlesex,
within six days after notice (/*) at most, but, if not entered
on the day [of] or day after giving notice by the party
giving it, may be entered within four days by the other
party, unless the notice has been countermanded by con-
sent or leave on terms (o). If the notice be for trial in
London or Middlesex, this shall be deemed to be for any
day on which it may come on in its order(p); if elsewhere,
then for the first day of the next assizes (q); and the action
or issue may be entered by either party not less than two
days before the commission day in the District Registry
(or elsewhere, as provided), or with the Associate (r).
68. If the defendant desires a jury, he may give notice
out of Court, without moving for an Order, within four
days after service of notice of trial, or extended time, and
need not specify on which particular issues of fact he
grounds his right to a jury (s). Such right is absolute (/),
except, and only except, where it appears desirable to the
(h) 0. XXXVI. r. '.',.
i, Metropolitan Inner Circle Railway Co. v. Metropolitan Railway Co., 5
Ex, D. 196.
(j) 0. XXXVI. it. 8, 8a.
Eedmaym . . Vawjhan, 24 W. R. 983.
/ Harris v. Gamble, 7 Ch. D. 877.
0. XXXVI. r. 9.
(n) I"/, rr. 1". 10a.
Do rr. ]:;, 14.
(p) Do. r. 11.
Do. r. 12.
(r) Do. r. 15a.
(s) Do. r. 3 : and see Powell v. Will lams, 12 Ch. I). 234.
ugg â– . SUber, 1 Q B. D. 362 (Patent Case) ; West v. White, 4 Ch. 1).
63] (nui an Bordkr v. Burrell, 5 Ch. D, 512 (ancient lighta).
TRIAL BY JURY. 59
Court or Judge to direct a trial, without a jury, of ques-
tions or issues of fact, or of fact and law, such as under
the former practice could without consent be tried with-
out a jury (u). The discretion of the Court or Judge in so
determining is rarely interfered with, perhaps never, un-
less a Judge has exercised his discretion because on a point
of law he held an opinion which the Court of Appeal
thinks wrong (v). But the Court or Judge has discretion
to refuse such an application by a plaintiff who has been
guilty of undue delay (w), or even where the defendant has
asked for a jury (x). A defendant has no absolute right
to a jury in actions proper only for the Chancery Division
(//), as e.g. cases of fraud (z), specific performance («),
purely conveyancing cases (b), issues of fact in an action
to restrain a trade-libel (c), trade-name raising an infer-
ence of law from which the tacts are inseparable (d), or
where only minor issues of fact are involved (e). Nor can
a Judge in the Chancery Division try a case with ajury (/),
but a Judge, even of the Chancery Division, may direct
issues of fact to be tried by a Judge and jury {g) } or ques-
tions and issues of fact, or fact and law, to be tried by
Commissioners, or at London or Middlesex sittings (h) ;
and if arising in an action in the Chancery Division, the
Order for such trial shall state on its face the reason (/'),
as e.g., that the defendant desires it, and the Court
sees no reason to the contrary (j). And an action, as
well as a question or issue, may be so ordered to be tried.
{u) 0. XXXVI. r. 26 ; and see on Judge's discretion, Powell v. Williams,
12 Ch. D. 234 ; Holmes v. Harvey, 35 L. T. BOO ; Sykes v. Firth, 46 L. J.
Gh. D. 627.
(v) Per James L. J. in Ruston v. Tobin, 10 Ch. D. 558.
\w) Lloyd v. Jones, 7 Ch. I). 390.
(.<â– ) Wedderburn v. Pickering, 13 Ch. D. 769.
(</) Swindell v. Birmingham Syndicate, 3 Ch. D. 127.
(:) Back v. Hay, 5 Ch. 1). 235.
(a) Pittey v. Baylis, 5 Ch. D. 241 ; Wood v. Kay, W. N. 1879, 206 ;
Sykes v. Firth, 46 L. J. Ch D. 627.
'(6) Wedderburn v. Pickering, 13 Ch. D. 769.
(c) Thomas v. Williams, 4'.' L. J. Ch. D. 605.
(d) Singer Manufacturing Co. v. Loog, 11 Ch. D. 656.
(c) SpraWs Patent v. Ward & Co., 11 Ch. D. 240.
( f) Warner v. Murdoch, 4 Ch. 1). 750.
((/) 0. XXXVI. r. 27 ; and see Clarke v. Cookson, 2 Ch. D. 246.
('/,) 0. XX XVI. r. 29.
(t) Do. r. 29a.
( j) West v. White, 4 Ch. D. 631.
00 THE LAW OF PRACTICE.
but, s&mble, not without statement of some further suffi-
cient reason than the mere wish of the parties (A;). But
no special Order stating the reason is necessary when 1 ,
no place being named in the statement of claim in an
action attached to the Chancery Division, such action
is set down to he tried in the county of Middlesex (I).
69. Within four days after service of notice of trial, or
extended time, where (1) no notice of trial by a jury has
been given, or (2) in a case suitable for trial before Re-
ferees, the plaintiff or defendant may apply for an Order
to change the mode of trial of an action (m), but not of
such issues as may be compulsorily referred (n). And on
the application of the defendant, or of the plaintiff under
some circumstances (o), the Court or a Judge may order
different questions of fact, or mixed questions of law and
fact ( p), to he tried by different modes, or some before
others 17). On trial of a question of fact, only one
counsel will generally be heard on each side (r).
70. If the plaintiff does not give notice of trial, the de-
fendant (subject to exceptions under the Rules, as where
the Court or -Judge has discretion to order particular
modes) may (1) give notice specifying the mode, in which
east the plaintiff may claim trial by a Judge with jury (s);
or (2) apply [in the Chancery Division generally at
Chambers (t) ] to have the action dismissed for want of
prosecution, or lor such other Order on such terms as may
Se< m just (u).
71. VVhen an action is called on for trial, if
A. The plaintiff only appears, he may, semble, without
proving service of notice of trial (v), prove his claim, so
far as the burden of proof lies on him (w) :
(I.) Wood <fe Irery v. Hamblett, 6 Ch.D. 113.
(/; 11 a nt v. 1 iii/ of London Ileal Property Co., 3 Q. B. D. 19.
XXXVI.' r. 5.
(n) Ward v. PiUey, :> Q II. D. 1:27.
i:, mi, a Silver Mine Co. v. Grant, 11 Ch. I). 694.
« Tn -inn, in Main Line JUiilu-ay Co. v. Clark, 27 W. R. 077.
,. <>. XXXV I. r. 6.
en Conington v. Gilliat, 1 Ch. D. 694.
(«) o. XXXVI. r I.
() Freason w. Loe, 20 W. R. 138.
I XXXV i. r. 4a.
' i,n, lii-it v. Ijirkir, 13 Ch. D. 102; referring to Cockshott v. London
■i, ■• . 26 W. R. 81. («r) 0. XXXVI. r. 13.
NOTICE OF TRIAL. — ADJOURNMENT. 61
B. The defendant only appears, he is entitled, without
proving service of notice of trial on him(.r), to judgment
dismissing the action, unless lie lias a counter-claim,
which he must then prove so far as the burden of proof
lies on him I//). But where an action abates, as where the
plaintiff has gone into liquidation, pendente lite, and the
trustee has not appeared, and there is no evidence of ser-
vice of notice on him, the Order will be to strike out the
action from the list (z).
72. Application may be made at assizes or in Middle-
sex, within six days after trial, or, semble, after the party
hears of it (a), to set aside a verdict or judgment on de-
fault of appearance on terms (6), as e.g. on payment of
costs of the day, where the defendant was not represented
because his solicitor had overlooked the transference of
the action (c), where the plaintiff was not prepared (d),
where one side had trusted to expectation of a settlement
of the dispute (e).
73. The trial may, if the Judge thinks it expedient, be
postponed or adjourned upon terms (/), as e.g. payment
of costs incurred by the action being in the paper, where
it was adjourned on the application of a party to add other
parties (;/). At or after the trial, (1) judgment, including
a Referee's report if adopted (h), may be directed by
Order to be entered, or ('2) the case may be adjourned for
further consideration, or (3) leave may be reserved to
move for judgment (i). But no motion for judgment is
necessary where the Registrar has certified to the superior
Court the result of a trial ordered to be tried in a
County Court (j).
(as) James v. Crow, 7 Ch. D. 410 ; following Re parte Lows, 7 Ch. D.
160 ; not following Cockle v. Joyce, 7 Ch. 1). 5b'.
(y) 0. XXXVI. r. 19.
(:) Eldridge v. Bwrgess, 7 Ch. D. 411.
(a) Michell v. Wilson, 25 W. K. 380.
(b) O. XXXVI. r. 20.
(c) Burgoine v. Taylor, 9 Ch. D. 1. . . . On dclav in application, see
Ma,/ v. Head, W. X. 1880, 26 ; WUHns v. Bedford, 35 L. T. 6 ■_•_>.
(d) Kin<i v. Sandeman, 38 L. T. 461.
(e) Wright v. Clifford, '26 W. R. 369.
(/) O. XXXVI. r. 20.
(y) LydaU v. Martinson,, 5 Ch. 1>. 7S0.
{h) WaUis v. Lichfield, W. N. 1S76, 130.
(t) 0. XX XVI. r. 22a.
(j) Scutt v. Frcaiutn, 2 Q. B. D. 177.
62 THE LAW OF PRACTICE.
74. Where there is no preliminary question of law to
be settled (k), a cause or matter, or question in a cause
or matter, [but not the action itself (I)] may be referred
to a Referee, who may, subject to Order, hold the trial as
nio^t convenient (m), enforce attendance by svibpoena (n),
but no1 commit or attach any person (o), and may submit
any question to the Court, or state facts for the Court to
draw inferences therefrom. The Court may require of
him explanation or reasons, and remit the matter wholly
or partially to him or another for re-trial or further con-
sideration, or may decide the question referred to him on
evidence taken before him with or without additional
evidence (/>). A motion to set aside or vary the judg-
ment in such a case must be supported by affidavit or
other evidence of what took place at the trial (q). But
when the matter referred to the Referee is simply the
amount of damages in an action, the report cannot be
altered or varied, though it may be accepted wholly or
partially, or wholly disregarded, or remitted for amend-
ment (r). The appeal from an Order of compulsory
reference made by a Judge at Nisi Prius or Assizes is to
the Court of Appeal (s).
75. in the Common Law Divisions, an application for
new trial must be made
A. to a Divisional Court of the Division to which the
Judge belongs who tried the action (/),
(1) after trial of an action by a -Jury (u), even though
tie' case was originally attached to the Chancery
Division (v), and whether the verdict has been given in
the ordinary way, or a rinding directed by a Judge on
{k) Lascelles v. Butt, 2 Ch. D. 588.
(/) Pontifex v. 8evern, 'â– '< Q. B. I>. 295; Longman v. East, 3 C. P. D.
14-2; Braginton \. Yates, W. N. 1SS0, 150.
i. XX XVI. r. 30.
n) !>â– <â– r. 31.
o Do. r. :;:;.
(;,, I ).,. r. :;\ (March, 1879).
(,,) Sktbbs v. Boyle, 2 Q. I'.. I>. 124.
Dunkirk iMUi-ry Co. v. Lcnr. '.» Cli. D. 20. But quare, whether this
would not in- now covered by Rule 34 aa enlarged I
(«) Hoch \. Boor, 19 I.. •'. C. L. J). 665.
(t) .A///-.; v. Baxter, 5 Ex, I>. 275. But see Jenkins v. Morris, 14 Ch. D.
07!.
0. XXXIX. r. 1.
(cj Hani v. City of London Idal Property Co., 3 (l 15. D. L9.
REFEREES. — NEW TRIAL. 63
facts as undisputed (w), or a nonsuit directed (x), or
either refused {ij) ;
(2) When the case has been remitted from the High
Court to a County Court and tried by a Judge alone (z) :
B. to the Court of Appeal when the trial has been by
a Judge [of the High Court] without a Jury (a), whatever
be the particular ground of objection on which the
application is founded (b). But the finding on a
particular issue in an action commenced in the Chancery
Division directed to be tried by a Judge alone (semble,
if actually tried in a Common Law Division) is an inter-
locutory Order, and the proper course is to appeal (<).
So, too, where the Jury are discharged after the opening
of the trial, and the case is in fact tried by a Judge {<!).
76. In the Chancery Division, where definite issues of
fact have been settled at the commencement of the trial,
and a Judge of the Chancery Division has found a verdict
on a matter of fact, this is equivalent to an interlocutory
Order, and application for a new trial must be made
to the Court of Appeal within the time limited for
appeal, i.e. twenty-one days (c). But where no such
definite issues have been settled at the commencement,
an appeal against a verdict on matters of fact as well
as of law, including an application for a new trial (/),
lies within a year (g). Where there is no such separate
verdict on matters of fact, but the case is decided by a
Judge as a whole, no application for a new trial can
be made on the ground of improper rejection of evidence,
but an appeal lies (It).
77. Application for a new trial shall be by motion to
show cause, at the expiration of eight days, or so soon
(w) Yetts v. Foster, 3 C. P. D. 437.
(x) Ett*i v. Wilson, :'. Ex. D. 359.
(>/) London v. Roffey, 3 Q. B. D. 6 ; Davis v. Goodbehere, 4 Ex. D. '215.
(z) Dames v. Felix, 4 Ex. D. 32.
(a) O. XX XIX. r. 1.
(b) Oastler v. Henderson, 2 Q. B. D. 575.
(c) McAndrezo v. Barker, 7 Ch. D. 701, and see Jones v. Baxter, 5 Ex. V.
275.
" (d) Metropolitan Bank v. Heiron, W. N. 1880, 132.
(e) Krehl v. BwrreU, in Ch. 1>. 420.
(/) 0. LVIII. r. 5a., March, 1879.
(.</) Lowe v. Lowe, 10 Ch. D. 432.
(h) DoUman v. Jones, 12 Ch. D. 553.
G t THE LAW OF PRACTICE.
after as the case may be heard, and when made to a
Divisional Court, (1) if the original trial was in London
or Westminster, shall be within four days, or on the first
subsequent day on which the Court sits to hear motions;
(2) if elsewhere, within seven days after the last day of
sitting on the Circuit, or (if the last day falls during
vacation or within a week before), within the first four
davs of the next following sittings (i).
78. Where, and only where, the Court thinks sub-