298 Timehri. 
jury have disagreed another chance at the expense of those who have 
been waiting. Sometimes it seems to be absurd to postpone to a 
future assize a case which ought to be tried forthwith, and we call a new 
jury; or what is more likely to be the case, we discharge the jury and 
try it then and there and thus dispose of it. 
If the jury find a verdict, the judge has no power to award a new 
trial. There must be an appeal. 
An appeal may be taken to the Divisional Court of the High Court 
of Justice. The Divisional Court consists of three Judges. We have 
four Divisional Courts, and any member of any Divisional Court may sit 
in any Divisional Court. When counsel, as they sometimes do, skirmish 
for Judges—I suppose that is entirely unknown in your practice,—but it 
is said that in Ontario they do, and they postpone their cases not uncom- 
monly, it is said, on account of the absence of necessary and material 
Judges. (Laughter.) Now, I am glad that excites your amusement, 
because it proves to me you cannot have anything of that kind in your 
practice—when counsel have skirmish for Judges, very often they find 
that very Judge whom they are anxious to avoid sitting up in the 
Divisional Court smiling at them. The grounds of appeal to the Divi- 
sional Court are very much as your appeals here, verdict against evidence, 
against the weight of evidence , surprise, absence of witnesses, exclusion 
of evidence and admission of evidence, and all that sort of thing. We 
do not have very much bother about admission or rejection of evidence 
in our Courts; unless we can see that the exclusion of evidence or the 
admission of evidence has led to some injustice, then we pass it by. 
Matters of law as a rule are the determining matters in the Appellate 
Court; although there are occasionally cases in which appeals succeed 
upon the ground of the non-admission of evidence, or the admission of 
evidence, which ought not to have been admitted. If a case is tried 
before a Judge, and he has improperly rejected evidence—and I may say 
that this is the rarest of all contingencies, because as a rule we admit 
the evidence subject to objection, and then we never allow it to influence 
our mind, of course, if a Judge has refused the evidence improperly, the 
Divisional Court as a rule does not send the case back for a new trial, 
but the Court often says, ‘‘ We will sit on such a day, you can bring the 
evidence you desired the Judge to hear and we will hear it here.” We 
hear the evidence and determine the case then and there, without send- 
ing it back with all the risk, expense, inconvenience, annoyance and 
trouble of a new trial. (Applause.) If there is a row about the plead- 
ings—because even yet we have some people who talk about pleadings, 
though pleadings are pretty nearly defunct in our Courts, we know them 
by name and know them by sight, but we pay very little attention to 
them—if there is any row about the pleadings we say, ‘ Very well, we 
will amend the pleadings.” If a lawyer says, “ If that amendment had 
been made in the Court below, we should have had other evidence,” we 
may say, ‘Very well, what day will suit you? We will hear your wit- 
nesses.” One of our substantial rules and one of the rules more bene- 
