it of so high a nature that on failure of payment on the day assigned execution might be awarded without any mesne process to summon the debtor, or the trouble or charges of bringing in proof to convict him, and thus, it is presumed, it obtained the name of a "pocket judgment." It has fallen into disuse. A statute staple was also a bond of record, but was also acknowledged before the mayor of the staple in the presence of the constables of the staples or one of them; the only seal required for its validity was the seal of the staple, and therefore if the statute be void for any cause, it could not, as in the case of a statute merchant, be proceeded on as a common obligation, and wanting the sanction of the seal of the king, the sheriff after the extent could not deliver the lands to the conusee, but must have seized them into the king's hands; and in order to obtain possession of them the conusee must have sued out a writ of LIBERATE, which was a writ out of Chancery reciting the former writ and commanding the sheriff to deliver to the conusee all the lands, tenements and chattels by him taken into the King's hands if the conusee will have them by the extent, and appraisement made thereof until he be satisfied his debt. (Coote on Mortgages, 74.) Both the above have grown obsolete, and have been superseded by the modern form of mortgage, with its express or implied power of sale. Lands taken by virtue of the above were held for an estate by statute merchant and statute staple respectively until the debt was paid. (Wharton's Law Lexicon, 6th ed., 914.)

A writ of elegit is one of the writs which may be issued in execution of a judgment, and whereby the whole of the lands as well as the goods of the judgment debtor, except oxen and beasts of the plough, may be taken after an inquiry before a jury as to their ownership. It originated under the statute of Westminster the Second, and until the passing of 1 & 2 Vict. c. 110 only extended to half the debtor's lands. By that statute it extends to the whole of the judgment debtor's lands. When the lands are delivered to the creditor in pursuance of that writ he is technically tenant by elegit, but as in the cases of statute merchant and statute staple, he only holds his debtor's lands until payment or tender of his debt, interest and costs, which can be made so long as the debtor is not barred by statute from making such payment or tender. Whilst statute merchant and statute staple have fallen into disuse, writs of elegit have become very popular of late in consequence of their

escaping, as mentioned in the preceding answer, the provisions of the Bankruptcy Act, 1869, if the debtor goes into liquidation or becomes bankrupt, except in the case of bankruptcy, when they may be avoided under certain circumstances under the doctrine of relation back.

204. Explain the words "interlocutory order" as used in the Judicature Acts. Are they confined in their meaning to an order made between writ and final judgment, or do they extend to an order made after judgment? Would they apply to the following case?

A creditor recovers judgment in an action and sues out a writ of elegit. The sheriff returns that there are no goods which he can deliver, but the defendant being entitled to an equity of redemptiɔm in certain land, the plaintiff applies in the action for an order for the appointment of a receiver. Is he entitled to it, or must he first commence a new action? Quote, as far as you can, the terms of the section of the Act relating to the appointment of a receiver.

Mr. Wilson, in his third edition of the Judicature Acts and Rules, p. 106, has collected all the cases already decided upon what are "interlocutory" and what are "final" orders under the Judicature Acts and Rules, and which are here repeated. The distinction is important on account of sect. 12 of the Act of 1875; Order LVIII., r. 15; Order XXXVII., r. 3; and Order LVIII., r. 5.

In White v. Witt (46 L. J. Ch. 560; L. R. 5 Ch. D. 589), the Court of Appeal decided that the form of the proceeding must be looked at before it can be said whether an order is interlocutory or final. The following orders have been decided to be interlocutory :(1.) An order to vary a chief clerk's certificate.

(2.) An order on a creditor's claim in an administration action. (3.) An order made on an application that a case should be tried with a jury.

(4.) An order making a rule absolute for a new trial.

(5.) An order discharging a rule for a new trial.

(6.) An order empowering the plaintiff to sign judgment on a specially indorsed writ.

(7.) An order for judgment on an interpleader issue.

(8.) An order on a motion to vary a special referee's report.

(9.) A judgment upon a special case stated by an arbitrator who is thereupon to make his award.

(10.) The findings of a judge on issues of fact tried separately from the rest of the action.

But the following are final :

(1.) A judgment allowing or overruling a demurrer.

(2.) An order dismissing an action.

(3.) A judgment for part of a claim under Order XL., r. 11. (The authorities for the above statements are collected in Wilson, p. 106.)

An order may or may not be interlocutory if made after judgment. It depends, as above stated, upon the form of the proceeding. An order for the appointment of a receiver under sect. 25, sub-sect. 8, of the Judicature Act, 1873, is by the express words of that section an "interlocutory" order. The plaintiff can in his action, and in the division in which the action then is, obtain the appointment of a receiver by motion in a summary manner, without commencing, as was formerly necessary, a fresh action for that purpose. He should generally register the order appointing the receiver when made as a lis pendens. This is termed obtaining "equitable execution." (Smith v. Cowell, 50 L. J. (App.) Q. B. 38; L. R. 6 Q. B. D. 75.) The terms of sect. 25, sub-sect. 8, are as follows :—

"A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person against whom such injunction is sought is or is not in possession under any claim or title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title; and whether the estates claimed by both or by either of the parties are legal or equitable."

205. Are there any, and, if any, what means and under what stututes and rules, if any, by which delivery of property (other than land) the subject of an action can be enforced?

Yes, under the rules of the Supreme Court made under the Judi

cature Acts, 1873-1881. The delivery of property (other than land or money) the subject of an action can be enforced by any Division of the Court by

(1.) A writ for delivery of the property, without giving the defendant the option of retaining such chattel upon paying the value assessed, and distraining on the defendant's lands until it is delivered; or if the plaintiff wishes it, he can have its assessed value raised and paid to him out of the defendant's other goods. (Order XL., r. 4; Order XLIX.; Appendix F., Form No. 8.) (2.) A writ of attachment.

Form No. 9.

(Order XLII., r. 4; Appendix F.,

(3.) A writ of sequestration. (Order XLII., r. 4; Appendix F. Form No. 10.) (For further information consult Haynes's Chancery Practice, 186 et seq.; Daniel's Chancery Forms, 3rd ed., 687, 734, 743, 1375-1392.)

206. In an action for recovery of land at the suit of a landlord against a tenant, and in which the writ only claims possession, are there any, and, if any, what means by which, on the trial, the plaintiff can obtain a verdict for mesne profits as well as judgment for possession of the land?

Yes, by virtue of sect. 214 of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), which in effect provides that, on the trial of an action by a landlord against his tenant the landlord can, after proof of his right to recover possession of the whole or any part of the premises mentioned in the statement of claim, go into evidence of the mesne profits thereof which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the same, down to the time of the verdict given in the action or to some preceding day to be specially mentioned therein; and the jury shall give their verdict and the landlord shall have judgment accordingly; but this action does not prevent the landlord bringing any action for the mesne profits which shall accrue from the verdict or the day so specified therein down to the day of the delivery of possession of the premises recovered in the former action. This section applies to all actions of ejectment as between landlord and tenant. The writ need not contain any claim for mesne profits to recover them under this section. (Smith v. Tett, L. R. 9 Exch. Ch. 307; Woodfall's Landlord and Tenant, 11th ed., 745.)

N

207. Describe the nature and effect of the writs of certiorari and procedendo respectively, and state the necessary steps to be taken in order to obtain the same.

The writ of certiorari is issued for the purpose of removing a cause or matter from an inferior Court to the High Court of Justice, and is not granted as of course, though an applicant having a peculiar grievance of his own may be entitled to it ex debito justitiæ. A certiorari is directed to the judge or officers of an inferior Court, commanding him or them to return the record of a cause or matter there depending, to the end that more sure and speedy justice may be done between the parties. The right of thus removing a cause or matter exists at common law, but has from time to time been limited to some extent in its applicability by statute.

If the High Court or Court of Appeal should consider that a cause has thus been improperly removed, it may direct the issue of a writ of procedendo commanding the inferior Court to proceed, or the writ of certiorari may be quashed on motion. (Broom's Common Law, 5th ed., 233-4.)

In practice the application for leave to issue either writ is made either by summons in chambers (in vacation) or for, first, a rule nisi, and afterwards, on cause being shown, a rule absolute. In the Queen's Bench Division of the High Court leave may be obtained by motion. The application is supported by an affidavit setting out the facts. (See Daniel's Chancery Forms, 3rd ed., 995 et seq.)

PRESCRIPTION.

208. What is meant by "prescription," as distinguished from custom, and what were its leading characteristics at common law? When was the Prescription Act passed, and what changes did it make in the law?

Custom is a local usage not annexed to any person, whereas prescription is a strictly personal right, as that A. and his ancestors, or those whose estate he has, have used time out of mind to have such an advantage or privilege. (Broom's Common Law, 5th ed., 14.) Borough-English is an instance of a custom.