jury, or with a jury drawn from Middlesex or the city of London. If it is tried at an assize town, it will be tried by some commissioner of assize (who will probably be one of the judges of the Supreme Court) without a jury, or with a jury drawn from the shire in which that town is situate. In either case the tribunal before which it is thus tried is the High Court of Justice, and the presiding judge or commissioner can there and then pronounce the judgment of that court. The counties are visited by commissioners of assize twice a year for the purpose of trying civil actions, but at some northern towns, civil as well as criminal business is taken four times a year. Of commissioners of assize we shall have more to say below.1 The judges of the Chancery Division do not preside over trials with jury, except when they are sent out as commissioners of assize, so that if (as well may happen) an action in that division is to be tried with a London or Middlesex jury, the trial will be before a judge of the Queen's Bench Division.

There are two main modes whereby a case is tried in the High Court. It is tried with jury, or it is tried without jury. In the causes which are specially assigned to the Chancery Division there is no trial by jury unless by leave of the judge. Such actions may often involve serious questions of fact, and questions which touch the good name of the parties. An action for the cancellation of a deed, for example, will go to the Chancery Division, and will frequently involve a charge of gross fraud. But the person charged with the fraud will have no right to trial by jury. Such cases have, heretofore, been tried without a jury in the Court of Chancery; they are tried without a jury still; it seems impossible 1 See p. 152.

to give any other reason for the fact. But in an action of any one of the most common and simple types, any questions of fact that there may be will be submitted to a jury if either party has required this. A simple notice given by one party to the other will secure a jury if the action be grounded on slander, libel, false imprisonment, malicious prosecution, seduction, breach of promise of marriage; in other cases the party must obtain an order for trial by jury, but to such an order he has a right. The requirement of this formality, which is new, seems likely to diminish the number of cases tried by jury. Trial by a single judge, who decides both fact and law, is rapidly becoming a very common mode of civil trial. In the county courts a long experiment has proved that in a vast majority of cases litigants do not care to have a jury, at all events, a jury of five; and to all seeming, those who have cases in the High Court will not use their right to a jury if thereby they are put to the slightest trouble. It is believed that in mercantile disputes of a certain class, the right to a special jury is still valued; cases of libel, breach of promise of marriage, and so forth, one of the two parties will almost certainly desire to bring before a jury; but the fact should be recognised, be it liked or not, that the trial by jury of civil cases is itself on its trial, and the verdict is going against it.

The trial by jury of a civil case is so like the trial of a criminal case, that the two shall be treated together hereafter. Whether there be a jury or no, it is only in rare cases that a trial takes place before more than one judge. When he tries the case without jury he is judge of fact and law, and his judgment is the judgment of

1 As to special juries, see below, p. 165.

the High Court, from which there lies an appeal to the Court of Appeal. That court sits only at the Royal Courts; ordinarily three of its judges are sitting together in one room, and three others in another; some matters can be heard by two judges, but generally there must be three. By the appeal all questions of fact and law may be reopened, and though usually the evidence given in the High Court is the basis of the decision, still the Appeal Court can and will for special cause admit new evidence. In no case is a jury employed, either in the House of Lords or in the Court of Appeal.

When there is trial by jury, the judge leaves to the jury such questions of fact as arise, and, assuming that the verdict is correct, gives the judgment of the High Court. If, making the same assumption, the defeated litigant thinks the judgment wrong, he can go to the Court of Appeal, and thence to the House of Lords. If, however, he is dissatisfied with the verdict, he applies for a new trial, urging that the judge misdirected. the jury, that the verdict was against the weight of evidence, or the like. This application he makes to what is called a "divisional court" of the High Court, which can order or refuse a new trial, and from this decision he or his opponent may appeal to the Court of Appeal, and so the question whether there is to be a new trial may be brought even before the House of Lords.

Certain business of the High Court must be done by a "divisional court," that is to say, by two or more of its judges sitting together without a jury. It is in the form of a tribunal thus constituted that the High Court, besides hearing applications for new trials, hears appeals from inferior courts, exercises its supervisory control

over the magistracy, and in general does such part of its work as does not consist in trying civil actions.1 In some of these cases there can be no appeal from its decision, in some others none without its leave. But what matters shall be brought before a divisional court and what before a judge sitting alone is one of the many things that can be determined by rules made by the committee of judges to which Parliament has intrusted the duty of supplementing the statute-book.2

1 Since the abolition of the Common Pleas and Exchequer Divisions, the word divisional in the phrase "divisional court has lost most of its point. Practically it means a court constituted by two or more judges of the Queen's Bench Division.

2 See below, p. 66.

CHAPTER VI.

THE HOUSE OF LORDS AND THE CHANCELLOR.

FROM almost every order or judgment of the Court of Appeal an appeal may be made to the House of Lords, which, it is needless to say, is one member of our supreme legislative body. But besides this it is a court of law. Such is the theory, and such, subject to some explanation, is the fact. Every person who has a right to sit, debate, and vote, when the House is about its legislative business is also entitled to sit, debate, and vote, when the question is whether the judgment of some lower law court shall be affirmed or reversed. But concerning the constitution of this House we will not speak, for the main facts are well known, and practically our court of last resort is a very different thing from that assembly of lords, spiritual and temporal, which takes part in legislation.

In the last century it became customary for the Lords to leave their judicial business to be done by such only of their number as were distinguished lawyers. Occasionally the other lords, "lay lords," as contrasted with "law lords," interfered, but their interference became uncommon. So late as 1844 certain lay lords were with difficulty dissuaded from meddling with some grave