EXAMINATION QUESTIONS AND ANSWERS.

(Hilary Term, 1865.)

COMMON LAW.

I. What is the meaning of local and transitory actions? Give instances of each.

ANS. An action is said to be local when the cause of it could have happened in one county only, as in an action for trespass to land or ejectment. An action is transitory when the cause of it might have happened anywhere, as in an action of assault, and in nearly all actions of contract. (Smith's Act. at Law, p. 79, 8th ed.; 4 Exam. Chron. 27, 49, 82, 111.)

II. In what cases may a plaintiff avail himself of " the Summary Procedure on Bills of Exchange Act, 1856?" And state the different steps and proceedings under that Act where the holder of a bill seeks to enforce it against both acceptor and drawer.

ANS.-The 18 & 19 Vict. c. 67 is the Act here referred to. A plaintiff may avail himself of the Act when the bill or note is not more than six months overdue. By sect. 6 the holder of any bill of exchange or promissory note may issue one writ of summons against all or any number of the parties to such a bill or note, which writ is then the commencement of an action or actions against the parties therein named respectively, and all subsequent proceedings against such respective parties are to be in the same manner as if separate writs of summons had been issued against each. But the plaintiff may issue separate writs. The plaintiff having issued his writ in the special form given by the Act, serves it, or obtains an order for substituted service, files affidavit of service or order, and if the defendant does not within twelve days obtain leave to appear, signs judgment. (See 4 Exam. Chron. 159, 245; 3 id. pp. 1, 25, 74 ; 2 id. 277; 1 id. 121, 161; ante, p. 3.)

III. Where a bill of exchange or other negociable instrument

is lost, how can a party suing upon it prevent the defendant setting up the loss as a defence ?

ANS.-By the C. L. P. Act, 1854 (17 & 18 Vict. c. 125, s. 87), in any action on a bill of exchange or other negociable instrument the Court or a Judge may order that the loss of such instrument shall not be set up as a defence, on a proper indemnity being given to the satisfaction of the Court or Judge or a Master against the claims of any other person upon such negociable instrument. (2 Exam. Chron. 21, 79, 77; 3 id. 309; 4 id. 5; ante, p. 6.)

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IV. Where there is reason to believe that a judgment debtor has debts owing to him from third parties, is there any and what mode by which the judgment creditor can obtain payment from these parties?

ANS. The judgment creditor should, under the C. L. P. Act, 1854, of 60-67 (and see C. L. P. Act, 1860, ss. 29-31), apply to the judge by summons for an order to attach the debts due to the judgment debtor; there should be an affidavit of the judgment creditor or his attorney that judgment has been obtained, that it is still unsatisfied, and to what amount, and that some other person is indebted to the judgment debtor, and is within the jurisdiction, upon which an order may be made that all debts owing or accruing from such third person (called the garnishee), may be attached to answer the judgment debt; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Judge or Master to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as will satisfy the judgment debt. Service of this order binds the debts in the hands of the garnishee; and payment by or execution levied on him is a valid discharge as against the judgment debtor to the amount levied or paid. If the garnishee disputes his liability, the judge may order that the judgment creditor be at liberty to proceed against the garnishee by writ, calling upon him to show cause why judgment should not issue against him for the alleged debt, and the proceedings are to be as nearly as possible the same as upon a writ of revivor. But the Judge may refuse to interfere where the remedy sought is frivolous or vexatious. If it appears that some third person is interested in the debt, the Judge may summon him before him to state the nature of his claim, and may then make such order as he may think fit. (3 Exam. Chron. 310; 2 id. 23; Law Dict. 33, 34; F. Book, 278; Com. Law Pract. 254-256.)

V. Where personal service of a writ of summons cannot be effected, what steps must be taken to obtain an order for substituted service?

ANS. By the C. L. P. Act, 1852 (the 15 & 16 Vict. c. 76), s. 17, if the writ of summons, being for service within the jurisdiction, cannot be served personally, the plaintiff may apply on affidavit to a Judge, and in case it is made to appear to such Judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, he may make an order that the plaintiff be at liberty to proceed personal service had been effected. (Com. Law Pract. 76; 3 Exam. Chron. 307; 4 id. 162,248.)

VI. Where A. has broken into B.'s mine and taken coal thereout, can B., besides suing in trespass for the damage, obtain protection in the same Court against a recurrence of the injury? State shortly in what manner and at what stages of the cause this may be done?

ANS.-B.may obtain the protection referred by writ of injunction, which may be obtained exparte from a Court or Judge at any time after action commenced, and even after judgment, the C. L. P. Act, 1854 (17 & 18 Vict. c. 125), s. 79, providing that in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may claim a writ of injunction as well as damages or other redress. The writ of summons

in such action is in the same form as the writ of summons in any personal action; on every such writ and copy there must be indorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction. (F. Bk. 294; Com. L. Pract. 308 -312.)

VII. If an infant be sued, in what manner can he appear to the action?

ANS.-The infant cannot appear by attorney nor in person, but must appear by guardian appointed upon petition, signed by the infant, with a consent of the person who is to be guardian subscribed to it, and an affidavit of the attorney verifying the signatures of the infant and guardian. (Arch. Prac. p. 341, 2nd ed.; 2 Chit Archb. 1234.)

VIII. At what stage of a cause will a plaintiff or defendant be entitled to the costs of briefs and of otherwise preparing for trial?

ANS.-The parties are not entitled to the costs of their briefs and of preparing for trial until after notice of trial has been given. (Curtis v. Platt, 10 Law Tim. Rep., N.S., 383; stated 4 Exam. Chron. 203.)

IX. Where a party is dissatisfied with the decision of one of the superior Courts upon a rule to enter a verdict, or for a new trial, in what manner and under what conditions can he review that decision?

ANS.-By the C. L. P. Act, 1854 (17 & 18 Vict. c. 125), s. 34, in all cases of rules to enter a verdict upon a point reserved at the trial, if the rule to show cause be refused, or granted and then discharged or made absolute, the party decided against may appeal to the Exchequer Chamber, and from thence to the House of Lords. And by s. 35, in cases of motions for a new trial upon the ground that the Judge has not ruled according to law, if the rule to show

cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal provided any one of the Judges dissent from the rule being refused, or when granted being discharged or made absolute, as the case may be, or provided the Court in its discretion think fit that an appeal should be allowed. Notice in writing must be given to the opposite party, or his attorney, and to one of the Masters of the Court, within four days after the decision complained of, unless further time be allowed. The appeal is upon a case to be stated by the parties; in case of difference it is settled by the Court or a Judge of the Court appealed from (3 Exam. Chron. 309; Com. Law Pract. 203, 208, 210; F. Bk. 274, 275.)

X. Where a material witness in a cause is resident at Calcutta, what different modes may be adopted to obtain his evidence? ANS.-A writ in the nature of a mandamus may be granted to the tribunals in Calcutta to examine the witness and return his examination to this country; or a commission may be issued for his examination. (Smith's Action at Law, p. 131; Com. Law Pract. 169, 175; 1 Chit. Archb. 337, 344.)

XI. If a defendant sued by two joint plaintiffs pleads that after being brought one of them released him, is this a good defence against both? And in what manner can the plaintiffs obtain their costs in such case?

ANS.-The release, unless by a party having no interest or fraudulent, is a good defence to the action against both; if pleaded puis darrein continuance the plaintiffs may confess the plea, and are thereupon entitled to the costs up to the time of its being pleaded. (Reg. Gen. T. T. 1853, ru. 23; Com. Law Pract. 167; Chitt. Contr. 691.)

XII. When all matters in difference, not in a cause, are referred to arbitration, the costs of the reference to abide the event, and the arbitrator finds partly in favour of each party, can either of them have the costs of the reference?

ANS. Neither party will be entitled to the costs of reference. (Gribble v. Buchanan, 26 L. J., C.P., 24.)

XIII. In what cases and to what extent is an innkeeper protected against losses incurred by guests in his house?

ANS. By the 26 and 27 Vict. c. 41, no innkeeper is liable for any loss of goods or property (not being a horse or other live animal, or any gear appertaining thereto,) brought to his house to a greater amount than £30, unless the goods are stolen, lost, or injured through the wilful act of the innkeeper or his servant, or the goods have been deposited for safe custody with the innkeeper, in which case he may require, as a condition of his liability, that the goods

be deposited in a box or other receptacle fastened by the person depositing the same (4 Exam. Chron. 5; 4th ed. 228, 231, 141.)

XIV. Explain shortly the nature and operation of a charter party and a bill of lading.

ANS.-A charter party is an agreement for the hire of a ship for some voyage or time for a particular purpose at a freight thereby agreed for. (2 Steph. Com. p. 184, 4th ed.) It usually contains special terms as to seaworthiness, &c. A bill of lading is a receipt from the master of the vessel to the shipper of goods (the consignor) undertaking to deliver the goods (on payment of freight) to some third person, called the consignee. It is commonly in three parts, one being kept by the consignor, another sent to the consignee, and the remaining one being kept by the master. A bill of lading is a negotiable instrument, so that not only the property in the goods passes by indorsement of it, but the indorsee may sue on it in his own name. (2 Steph. Com. p. 48, 4th ed.; F. Bk. 9; 3 Exam. Chron. 142, 196.)

XV. Can goods belonging to a third party be seized under a

distress for rent and under what limitations? Does the same principle extend to seizure under a writ of fi. fa.? ANS.-The goods of a third party can be seized for rent, unless they were delivered to the tenant in the way of his trade to improve, or are on the premises by permission of the landlord, or are goods at an inn. (Woodfall's Land. and Ten. p. 377, 8th ed.; F. Bk. 235, 236; 2 Exam. Chron. 22, 77.) But they cannot be taken under a f. fa., except the owner himself lead the sheriff to believe that the goods belonged to the debtor. (Rokard v. Sears, 6 Adol. & Ell. 469.)

CONVEYANCING.

I. Define a base fee, and illustrate your answer by an example. ANS. A base fee is a fee-simple estate, having a qualification annexed to it determining the estate; as to A. and his heirs, tenants of the manor of Dale: when A. or his heirs cease to be tenants of the manor, the estate determines, it being a base fee. Practically, a base fee is such as is defined by the Fines and Recoveries Abolition Act, the 3 & 4 Wm. 4, c. 74, to be the estate created by the alienation of the tenant in tail when the issue are barred but those theremainder or reversion are not; it arises where there is a protector of the settlement and the tenant in tail bars his estate tail without his consent: this creates a base fee, which lasts only so long as any issue of the tenant in tail exist. (F. Bk. 122.)

II. Write out the "habendum " in a mortgage of a house held on lease for a term of eighty years, and enumerate shortly the usual covenants and provisoes in such a mortgage.