1. There is nothing to say in this suit. The plaintiff does not appear and Mr. Jackson and Mr. Norton, on behalf of the defendant, say that they wish to open their case. That is a procedure which is not contemplated by the Code of Civil Procedure. The decision of Sir George Jessel in Ex parte Jacobson, In re Pincoffs (1882) 22 Ck. D. 312; 52 L.J. Ch. 501; 48 L.T. 197; 31 W.R. 554 does not apply to this case at all. That case was that when the Master had heard the evidence given on behalf of the plaintiff, he said he was prepared to decide on the defendant's side without calling for any evidence to be given for or on behalf of the defendant. That, of course, is a position which the defendant is not bound to take up. Under our Code, notwithstanding that at the close of the plaintiff's case, the Judge has formed an opinion in favour of the defendant, the defendant can say that he is entitled to give evidence in proof of the case he has made in his own written statement; so that in the case of an appeal, there may be no remand but the whole case may be disposed of. That is not a case where the plaintiff offers no evidence. When the plaintiff offers no evidence, the Court has no jurisdiction except to dismiss the suit for want of prosecution. This case must be dealt with on that footing. The plaintiff must pay to the defendant the costs of this suit and of the commission to England on Scale No. 2.
2. Mr. Jackson.--'Will your Lordship also include reserve cost, if any?
3. The Court.--Yes.