EXAMINATION QUESTIONS AND ANSWERS.
(EASTER TERM, 1862.)

COMMON LAW.

I. What is required to be done in order to render a bill of sale of personal chattels, left in the possession of the party making it, valid as against execution creditors, &c.?

ANS.-The bill of sale must be registered under 17 & 18 Vic. c. 36, by which every bill of sale of personal chattels (with certain exceptions, as where for the benefit of creditors (4 Law Chron. 264), marriage settlements, bills of lading, delivery orders or warrants where goods are abroad or at sea, or of shares in ships or vessels, &c., is void in case of bankruptcy, insolvency, assignment for general creditors, and execution at law and in equity, unless the same, or a true copy thereof, with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, and of every attesting witness to such bill of sale, be filed with the proper officer in the Court of Queen's Bench, within twenty-one days after the making or giving of such bill of sale of such property, if such property be in the possession or apparent possession of the person making such bill of sale (3 Law Chron. 45, 87, 259; F. Bk. 204, 205; 1 EXAM. CHRON. 103; Law Dict. pp. 56, 59). By the 24 & 25 Vic. c. 91, s. 34, the original bill of sale must be produced, duly stamped at the time of registering it.

II. What is the difference between a specialty and a simple contract debt, and has any one priority over the other in the respective events of the bankruptcy or the death leaving an insolvent estate of the debtor ?

ANS.-Specialty debts are such as are secured by instruments under seal, which are of two kinds, first, those in which the heirs of the debtor are bound; and, secondly, those in which the heirs are not bound. On the decease of the debtor both these classes of specialty debts stand on a level so far as regards their payment out of the personal estate of the debtor; but debts by specialty, in which the heirs are bound, have a precedence over those in which the heirs are not bound, in case the real estate of the debtor is resorted to on his decease, unless he has charged his real estates by his will with the payment of his debts, in which case the assets are said to be equitable, and all the creditors of every kind, including those by simple contract, will be paid out of the produce of such real estates

without any preference. Simple contract debts are such as are not secured by record or by deed or specialty, but by mere oral evidence or by writing unsealed. These debts as to the personalty of the deceased debtor are postponed to specialties; and so as to real estate, except where it is made equitable assets. In case of bankruptcy no preference is given in payment of dividends on account of the nature of the debt, whether specialty or simple contract (9 Week. Rep. 297; 11 Jur. pt. 2, p. 112; F. Bk. 231; 1 Exam. Chron. 137, 170; Law Max. pp, 11, 55; Law Dict. 28).

III. What is required to be done by a party possessing a copy of a document, the original of which is in the hands of his adversary, to entitle him to read such a copy on a trial if the adversary should refuse to produce the original ?

ANS. The original document being in the possession of the adversary, the party desiring its production should give him a notice to produce it at the trial. If he does not produce it, secondary evidence of its contents may then be given, which will be admitted on proof of the service of the notice to produce. The service of such notice in respect of which notice to admit has been given may be proved by an affidavit of the attorney in the cause, or his clerk. Notice to admit the document should be given at the same time as the notice to produce (1 EXAM. CHRON. 23; Com. L. Pract. 159; Com. L. Princ. 12-14; F. Bk. 273).

IV. Does the executor or administrator of a sole or surviving executor, or the executor of an administrator, represent the first testator or intestate, and if not, how is a representation constituted?

ANS. The executor of a sole or surviving executor of a testator represents the original testator; but the administrator of such executor does not, nor does the executor of an administrator. In such cases, therefore, administration de bonis non must be taken out (F. Bk. 227, 228; 1 Law Chron. 105).

V.-Is a plaintiff entitled to his costs in an action for trespass in which he recovers less than 40s. damages, or is anything required to entitle him to such costs? What alteration has recently been made in the law with reference to costs in actions for alleged wrongs in which less than £5 is recovered? ANS.-By 3 & 4 Vic. c. 24, to entitle the plaintiff to his costs in an action of trespass where the damages recovered are under 40s., he must immediately after the trial get the judge or presiding officer before whom the verdict is obtained to certify on the back of the record, or on the writ of trial, or writ of inquiry, that the action was really brought to try a right besides the mere right to recover

damages for the trespass or grievance for which the action was brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious. But this does not extend to cases where plaintiff has previously served the defendant with written notice not to trespass (Smith's Act. 173, 5th ed.). By the 23 & 24 Vic. c. 126, s. 34, in actions of tort, where the verdict for the plaintiff is for a less sum than £5, no costs are recoverable, if the judge or other presiding officer before whom such verdict is obtained immediately afterwards certifies on the back of the record, or on the writ of trial, or writ of inquiry, that the action was not really brought to try a right besides the mere right to recover damages, and that the trespass or grievance in respect of which the action was brought was not wilful and malicious, and that the action was not fit to be brought (1 EXAM. CHRON. 2, 105, 143; 3 Law Tim. R. N.S., 379; 31 Law Jour., C. P., 5).

VI. Describe shortly the pleadings in a simple action to recover the price of goods sold and delivered, in which the only defence is that the defendant never ordered or received the goods; and state the times allowed to the defendant for appearing and pleading respectively.

ANS.-The defendant should appear within eight days after service of copy of the writ, inclusive of the day of service. The plaintiff then delivers his declaration containing counts for goods sold and delivered, and on an account stated, indorsed with a notice for the defendant to plead in eight days, otherwise judgment. If the writ were not specially indorsed, particulars of the plaintiff's demand should accompany the declaration. The defendant, within the eight days or an enlarged time obtained on summons, pleads never indebted," which will put in issue all those facts from which his liability arises (Pl. Rule Hil. Term, 1853, pl. 6; Com. Law Pract. 126, 128). The plaintiff joins issue upon this plea, which completes the pleadings (see Com Law Pract. 142-144; F. Bk. 266, 267, 269).

VII. To what cases does the lower scale of costs directed to be allowed on taxation apply?

ANS.-The lower scale of costs applies to all actions on contracts, other than cases wherein by reason of the nature of the action no writ of trial can by law be issued, where the sum recovered or paid into Court, and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, does not exceed £20 (without costs) ; but in case of trial before a judge of one of the superior Courts, or judge of assize, if the judge certifies on the postea that the cause was proper to be tried before him, and

not before a sheriff or judge of an inferior Court, the costs are taxed on the higher scale (Directions of Hil. T. 1853, pl. 7).

VIII. How are the costs adjusted in an action in which the plaintiff

seeks to recover £100, which the defendant reduces to £50 by succeeding to the extent of £50 on a plea of set-off, and the plaintiff gets a verdict for £50 accordingly?

ANS. It is assumed that the examiners are referring to a case in which the defendant has pleaded a set-off to the whole demand of the plaintiff, or at least to a greater extent than £50. Now, by sec. 75 of the C. L. P. Act, 1852, pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively; and, if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered (see Com. L. Pract. 126, 127 ; 4 Law Chron. 124, 125, 494; 1 Id. 420). In consequence of this enactment in the case above put the costs of the defendant, exclusively incurred in respect of the plea of set-off to the extent of £50, are deducted from the costs of the plaintiff, who is entitled to the costs of the cause.

IX. What is the meaning of a writ of inquiry and a writ of trial respectively?

ANS.-A writ of inquiry issues in an action for unascertained damages, not being substantially a matter of calculation capable of being made by a Master of the Court, where interlocutory judgment is signed for want of a plea, with a view to ascertain the amount for which final judgment is to be signed. The writ may be executed before one of the Judges, but is generally directed to and executed by the sheriff of the county where the venue in the action is laid. This inquiry partakes of the nature of an ordinary trial by jury, except that all the plaintiff has to prove, or the defendant can controvert, is the amount of the damages: the cause of action being admitted. When the inquiry has been executed, the finding of the jury is returned, with the writ, by the presiding Judge to the Court from which the writ issued-(Com. L. Pract. 139-142)-As to a writ of trial, it is by 3 & 4 Wm. 4, c. 42, provided that in any action depending in the Superior Courts for any demand not exceeding £20, the Court or any Judge thereof, if satisfied that the trial will not involve any difficult question of fact or law, may direct that the issue shall be tried before the sheriff of the county where the action is brought, or any Court of record in such county. For that purpose a writ of trial issues, directed to the sheriff or to such Judge,

and commanding him to summon a jury to try the cause, and thereafter return the writ with the verdict indorsed thereon. (Com. L. Pract. 149-151, 192-195; F. Bk. 271.)

X. When may a debtor be arrested on mesne process, and what is required to enable a creditor to issue a capias for that purpose? ANS. By 1 & 2 Vic. c. 110, if the defendant is liable to arrest in an action commenced in one of the Superior Courts, and it is apprehended that the defendant is going out of the jurisdiction, it must be shewn to the satisfaction of a Judge, by the affidavit of the plaintiff or some other person, that such plaintiff has a cause of action against the defendant to the amount of £20 or upwards, or that he has sustained damage to that amount; that an action has been commenced, and that there is probable cause for believing that the defendant is about to quit England, unless he be forthwith apprehended. The Judge will make a special order directing that such defendant shall be held to bail for such sum as such Judge shall think fit, not exceeding the amount of the debt or damages. And thereupon the plaintiff may sue out a writ or writs of capias. The writ remains in force for a month, and is directed to the sheriff of the county in which the defendant is supposed to be, and a warrant upon it is obtained, and the arrest made. Under the Absconding Debtors Act, 14 & 15 Vic. c. 52, s. 1, a Bankruptcy Commissioner or a County Court Judge (except in Middlesex or Surrey) may, in similar cases, grant a warrant to arrest a debtor within seven days from the date thereof. (Law Dict. 3; F. Bk. 357; 1 Law Chron. 8.) XI. What is the meaning of a distress, and how is it made? ANS.-A distress is the means by which the law, in certain cases, allows an injured party to obtain redress for himself. The principal cases are for rent in arrear, cattle damage feasant, and under various Acts of Parliament for tithe rent-charges, rates and taxes. Certain articles are, as before stated, privileged this privilege being either absolute or sub modo (ante, pp. 22, 77). The distress, except for damage feasant, must be made in the day time, that is, between sunrise and sunset. In cases of distress for rent it is made by the landlord or his bailiff (duly authorised) entering on the demised premises; this formerly must have been during the continuance of the lease, but now, if the tenant hold over, it may be within six months after the determination of the lease, provided the landlord's title or interest, as well as the tenant's possession, continue at the time of the distress. (9 Qu. Ben. Rep. 14.) The distress must be made on the premises out of which the rent issues, but by 11 Geo. 2, c. 19, the landlord may distrain any goods of his tenant carried off the premises fraudulently or clandestinely, wherever he finds them, within thirty days after, unless they have been bona fide sold for a