Proviso, Trial By

Proviso, Trial by. Where the plaintiff after issue joined did not proceed to trial when he ought to have done so, the defendant might, under the practice before the Judicature Acts, have the action tried by proviso; he might give the plaintiff notice of trial, make up the record, carry it down and enter it, and proceed to the trial as if he were proceeding as plaintiff. The right to try by proviso was expressly saved by (English) C.L.P. Act, 1852, s. 116, but a defendant seldom tried by proviso, as the better course was to take proceedings under the repealed s. 101 of the (English) C.L.P. Act, 1852; see now R.S.C. Ord. XXVII.