and should feel no compunction in writing to him for his opinion on any point. This should be the feeling of all your correspondents.Apologising for troubling you with this letter, I remain, &c., THOS. J. MASON. MOOT POINTS. No. 18.-Articled clerks appearing before magistrates.-Can any of your readers inform me if an articled clerk is allowed to plead before the magistrates by law; or if the magistrates have power to allow an articled clerk to plead at all? It appears to me by 6 & 7 Vic. c. 73, s. 2, that they are expressly prohibited from doing so; and by 23 & 24 Vic. c. 127, s. 26, a penalty is enforced (to be recovered by the Incorporated Law Society), if the former statute is broken; yet I observe that many persons who are not admitted attorneys are allowed by magistrates to plead before them. On one occasion the magistrates in Southampton allowed a clerk to address them who was about thirty years of age, but refused to listen to an articled clerk eighteen years of age. Is there no penalty to be enforced against the magistrates for non-observance of the above statute? I should wish very much to obtain the truth of my question. One of your subscribers (not a correspondent whose name has appeared in your paper) has answered my moot point in last month's CHRONICLE; I returned a letter, directed to the address he gave me, W. B. Porter, Frome, but it has not reached him, as the letter was returned to me through the dead letter office.-JOEL EMANUEL, Southampton. P.S. I have just seen in the Law Times for June 14th that the judge of the Sheriff's Court has admitted managing clerks to advocate on behalf of their principals on their producing a request to that effect from their solicitor. No. 19.-Devise of trust estates-Securities for money.-A. B., by his will in 1830, gave, devised, and bequeathed as follows:- "I give, devise, and bequeath to C. D. and E. F., their heirs, executors, or administrators, all such moneys as may now be vested in me by way of mortgage or otherwise, in order that they may,with the greater ease and facility, call in and receive the principal and interest secured thereon, and give proper receipts and discharges for the same, and all other my moneys and securities for money, and all other my personal estate and effects whatsoever and wheresoever, and of what nature or description soever, upon trust to pay debts, and subject thereto for my wife for life, &c." Does real estate vested in testator by way of mortgage pass by the will?-THOS. JOHNSON MASON, Bridge-street, Louth. EXAMINATION QUESTIONS AND ANSWERS. CRIMINAL LAW. I. Is the cashier of a firm, who is paid partly by a fixed salary and partly by per centage on profit, but without being liable to losses, or having any part in the management of the business, punishable as a servant for embezzling money belonging to the firm? ANS.-Yes; for the mode of paying him does not vary the nature of his employment, nor make him the less a servant (Rosc. Crim. Ev. 423, 4th ed.; re Hartley, Russ. and Ry. 139; 27 Law Journ., M. C., 44). II. When a person obtains goods by false pretences in one county and brings them into another, is he liable in either county; and, if only in one of the two, then in which? ANS. The trial must take place in the county where the goods were obtained (Archb. Cr. Proc. 70; see 19 L. J., M. C., 162; 25 L. J., M. C., 77). III. Is a person who climbs to the top of a house with intent to enter it through the roof and steal, but is interrupted before he has made any opening in the roof, punishable for an attempt to break in; and, if not, would his having made an opening in the roof, but without actually entering through it, render him so? ANS.-In the former case the party would not be punishable, but in the latter he would, there being a constructive entry (24 & 25 Vict. c. 961, s. 57; Woolwrych, 470. IV. Can an indictment for perjury be sustained on a false answer to a question affecting only the credit of the witness, and not otherwise relevant to the issue to be tried? ANS.-A question having no general bearing on the matters in issue may be made material by its relation to the witness's credit, and false swearing thereon will be perjury (21 L. J., M. C., 18). V. Is evidence in contradiction of an answer given by a previous witness to a question solely affecting credit properly re ceivable; and if in fact received, can an indictment for perjury be sustained, if it be false? ANS.-The evidence is not admissible (3 B. & C. 746); yet it seems, if false, perjury will be committed (Archb. Cr. Prac. 595, 596). VI.-If a wife receive stolen goods unknown to her husband, and the husband, after being informed of it, bargains with the thief for the price and pays it, of what offence is the husband guilty? ANS.-Yes (Rosc. Crim. Ev. 855). VII.—In what criminal cases may a husband and wife be witnesses against each other? ANS.-Husband and wife are not competent or compellable to give evidence for or against each other (14 & 15 Vict. c. 99, s. 3). But in the case of criminal prosecutions against the husband for violence against the person or liberty of the wife, the rule is dispensed with; and upon the ground of evident necessity, she is a competent witness to prove the case against him (F. Bk. 111, 347; 8 W. R. 423; 2 Law Chron. 13). VIII. In what cases are depositions before magistrates on a preliminary examination receivable in evidence at the trial? ANS. By sec. 17 of 11 & 12 Vict. c. 42, if upon the trial of any person it shall be proved that any person whose deposition shall have been taken before the magistrate is dead or so ill as not to be able to travel, and that the deposition was taken in the presence of the accused, and that he or his counsel had an opportunity of cross-examining the witnesses, then if such deposition purport to be signed by the justice before whom such deposition purports to have been taken, the same may be read in evidence without further proof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same (F. Bk. 338, 347; Key Crim. L. 102; 1 Exam. Chron. 115). IX. What summary punishment can two justices inflict for a common assault on any person; and what for an aggravated assault upon a boy under fourteen, or a female? ANS.-By 24 & 25 Vict. c. 100, s. 42, such fine as to the justices shall seem meet, not exceeding (together with costs if ordered) the sum of £5. In the latter case, by s. 43, the justices may cause the offender on conviction to be imprisoned with or without hard labour for a period not exceeding six months, or pay a fine not exceeding £20 (Greaves, 45, 46). X. When a charge of common assault made under the summary jurisdiction given by 9 Geo. 4, c. 31, s. 27, is dismissed by the justices as not proved, or justified, or so trifling as not to merit punishment, is the delivery of a certificate of the dismissal discretionary with the justices, or obligatory upon them; and can the complainant prevent it by withdrawing his complaint after service of the summons, but either before or during the hearing of the case by the justices? ANS.-The grant of the certificate is discretionary with the justices, the words of the Act being "may" (see 1 Exam. Chron. 1). The withdrawal of the complaint during the hearing does not affect the right to grant the certificate (1 Exam. Chron. 1, 118; 3 Law Tim Rep. 373). The statute has been repealed and re-enacted by the 24 & 25 Vict. c. 100, s. 44, and the words are now shall," and the case must be heard upon the merits (see Greaves' Acts, 47, 48). XI. In what case can a landlord recover possession from his tenant by summary proceedings before justices? ANS.-By the 1 & 2 Vict. c. 74, where the interest of a tenant of any house held at will, or for not exceeding seven years, at a rent not exceeding £20 a year, shall have ended, or been determined, the landlord may give a notice of his intention to apply to the justices, who, if case made out, may issue warrant to recover possession (3 L. C. 261). The 11 Geo. 2, c. 19, applies where the premises are deserted (Oke, 945, 7th ed.). There is now a more complete summary remedy in the County Courts (9 & 10 Vict. c. 95, s. 122; 19 & 20 Vict. c. 108, ss. 50; F. Bk. 134, 135). XII. Where, upon an information before justices for a breach of the Highway Act, a question is bond fide raised whether the place of the alleged offence is a highway or not, have the justices power to decide that question? ANS.-The justices should not take upon themselves to decide this question. XIII. Can justices make an affiliation order more than a year after the birth of the child, when the mother is the only witness to any payment by the alleged father within the twelve months, but is corroborated in another material particular? ANS.-Any single woman delivered of a bastard child may, at any time after such delivery, on proof that the alleged father has, within twelve months next after the child's birth, paid money for its maintenance, apply for an affiliation order, and it is not necessary that the woman's statement, on oath, as to the payment of the money should be corroborated in this respect (Archb. Just. Peace, 174). XIV. Is there any difference between a defendant in an information for a penalty under the Game Laws and a defendant on an application for an affiliation order in bastardy as far as regards their right to be examined as witnesses for themselves; and, if so, what is the reason of such difference? ANS. Since the 14 & 15 Vict. c. 99, the putative father is a competent witness, and may give evidence in his defence, or may be compelled to do so on behalf of the mother; but in the case of an information for a penalty under the Game Laws, he cannot be required to answer any question, as it would tend to criminate himself (27 Law Journ. 641). XV. Are persons walking four miles from home on a Sunday afternoon for amusement or exercise, travellers to whom an innkeeper is allowed to sell wine during the prohibited hours? ANS.-It has been decided on the Amendment Act (1 Exam. Chron. 118) that a person is not less a traveller within the meaning of the exception in the Act, because he travels for pleasure (Atkinson v. Tellers, 28 L. J., M. C., 12; 1 L. C., N. S., 48). EXAMINATION EXPERIENCES. CONVEYANCING. Continued from page 108. 6. I did not answer this question as I was not quite clear the requisites and exemptions for registration. 7. This (I said) would depend on the testator's domicile at the time of his decease. If domiciled in England legacy duty would be payable, the rule being that personal estate follows the person. 8. Two kinds of waste, voluntary and permissive-waste in this instance, would be in not upholding the house in accordance with the terms of the lease, and so by converting a meadow into arable land. The additional rent on conversion would have to be, not as a penalty, but as, simply, rent. 9. The copyholds will escheat to the lord, and the freeholds to the Crown. The personal estate will revert to the Crown, subject, however, to payment of bastard's debts. |