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testimony, but before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such a statement.

How would you try to avoid the expense of proving a document in your own possession ?

Give the other side notice to admit saving all just exceptions, and if this be not done you are justified in putting the other side to the expense of the proof, unless the Master certifies that the refusal to admit was reasonable.

If a deed or document is in the possession of the adverse party, what is the course to be pursued?

Give the other side notice to produce it and to allow copies to be taken, or serve interrogatories, or both, and at the same time apply for an order for production.

How must the execution of an instrument which has been attested by a witness be proved? and can the contents thereof be given in evidence without producing the instrument itself?

By 17 & 18 Vict. c. 125, instruments to the validity of which attesting witnesses are not necessary may now be proved by admission or otherwise, therefore it is not necessary to call the attesting witness unless attestation is necessary to give the instrument validity. Secondary evidence of its contents may be given where a notice to produce has been served and not complied with. And as regards documents of a public character they may be proved by the Queen's printers' copies thereof, or even by copies purporting to be printed under the superintendence of her Majesty's Stationery Office. Documentary Evidence Act, 1882 (45 & 46 Vict. c. 9).

Under what circumstances can application be made for a new trial? (i.) For default of the judge; (ii.) of the jury, and (iii.) of the successful party.

In the case of the judge for wrongfully admitting or rejecting evidence, or misdirecting the jury on a point of law if the Court to which the application is made is of opinion that some substantial wrong or miscarriage has been occasioned.

In the case of the jury for casting lots for their verdict or giving excessive or too small damages.

In the case of the successful party on the ground of surprise or perjury of witnesses,

Explain and illustrate the difference between an interlocutory and final judgment.

An interlocutory judgment is one given in the course of a suit, and which does not finally ascertain the question of damages, as in

the case of a judgment obtained by default for breach of promise of marriage. A writ of inquiry would have to issue to the sheriff, who sits by his under-sheriff, to assess the damages, whereas a final judgment is one which does put an end to the action, as in the case of a judgment for a debt or liquidated sum of money, and upon which execution can issue.

The judgment having been entered, how is it enforced?

By a writ of execution (a fieri facias) against the goods and chattels, or by a writ of elegit against the lands of the debtor, which writ is by 1 & 2 Vict. c. 110 extended to all the lands, tenements, or hereditaments of the debtor of which he or any other person in trust for him may be seized or possessed, thus including leaseholds and lands over which the debtor has a power of appointment.

How has the question of judgment been affected by 23 & 24 Vict. c. 38?

In addition to the judgments entered up after the passing of the Act being registered and re-registered, a writ of execution must be issued and registered in the name of the creditor, and actually put in force within three calendar months of the date of registration before bona fide purchasers or mortgagees can be affected.

How has 27 & 28 Vict. c. 112 affected the question of judgments?

No land will be bound by a judgment entered up after the passing of the Act until actually delivered in execution; such writ of execution now to be registered in the name of the debtor and not of the creditor. And the execution creditor may, if he prefers it, petition the Chancery Division of the High Court for a sale.

What is the principal provision of the County Courts Amendment Act, 1867 (30 & 31 Vict. c. 142) as to costs?

That in actions of contract unless the plaintiff recover more than £20, and in actions of tort more than £10, he will be deprived of costs unless the Court or a judge certifies for them.

What is now the rule with respect to the costs of and incident to proceedings in the High Court of Justice, and does this rule apply when an action is tried by a jury?

Subject to the 5th sect. of 30 & 31 Vict. c. 142 (the County Courts Act, 1867) costs are in the discretion of the Court unless the action is tried by a jury, when costs follow the event unless upon application made at the trial for good cause shown the judge before whom such action or issue is tried or the Court shall otherwise order.

Mention some of the provisions of the Judicature Acts and Rules as regards appeal.

Appeals are by way of rehearing on motion with notice to the parties affected by the appeal, and notice must also be served on any other persons the Court or judge may deem necessary. Should the judgment be a final one the period for appealing is one year, if an interlocutory one twenty-one days, except by special leave. appeal does not operate as a stay of execution.

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What is a "fieri facias," and what rules must a sheriff observe in executing it?

It is an execution against the goods and chattels of the party against whom the judgment is recovered, and it is so termed from the words of the writ, whereby the sheriff is commanded, quod fieri facias de bonis, that he cause to be made, of the goods and chattels of the party, the amount of the judgment debt. The sheriff must not break open any outer door to execute the writ; but must enter peaceably, and he may then break open any inner door to take goods. He cannot execute the writ on a Sunday, nor within the precincts of a royal residence.

What may be taken under a writ of fi. fa.?

Under a fi. fa. the sheriff may by 1 & 2 Vict. c. 110, in addition to the debtor's goods and chattels, take money or bank notes, cheques, bills of exchange, promissory notes, specialties or other securities for money belonging to the defendant, delivering the notes and money to the plaintiff, and holding the cheques, bills, &c., as security for the amount levied, and suing in the name of such sheriff for the recovery of the sums when the time of payment arrives, and paying over the money, when recovered, to the creditor. It should be remembered, however, that the sheriff must satisfy the landlord's rent in arrear for one year.

What is a writ of elegit, and why is it so called?

By 13 Edward I. c. 18, it was enacted that the creditor should have the election either to have a writ of fi. fa., or that the sheriff should deliver to him the chattels of the debtor (saving the oxen and beasts of the plough) and a half of the lands.

It was called a writ of elegit because the creditor thereby elected to have his remedy against the lands instead of proceeding by a fi. fa. By 1 & 2 Vict. c. 110, the whole of the lands may be taken under an elegit, but in order that judgments may bind purchasers, mortgagees, and creditors, they must be duly registered in manner required; and by 2 & 3 Vict. c. 11, the registration must be repeated every five years.

What is a charging order?

It is an order made by a judge of the Court in which judgment has been recovered that any government stock, funds, annuities, &c., standing in the name of the judgment debtor in his right or in the name of any person in trust for him, may be charged with the payment of the judgment debt and interest. This charge it must be remembered cannot be enforced until six months after the order.

What is a garnishee order?

It is an order obtainable from a judge at Chambers under the Common Law Procedure Act of 1854, attaching the debts due from third persons to the judgment debtor,. who may be compelled to produce his books, or may be orally examined, for the purpose of ascertaining such facts, and service of the order binds the debt in the hands of the third party or garnishee. The garnishee may, if he choose, attend and dispute the point; but if he do not appear and the order be made and served, execution may issue against him without any further writ of summons.

What is an interpleader?

Where two or more persons claim the same thing of a third wherein he claims no interest and is ignorant to which of them it belongs, he may apply to the Court or judge to compel them to interplead or litigate the right between themselves without involving him therein.

What is the practice on an interpleader ?

Under 1 Will. IV. c. 58, a summons is taken out, and served on both parties, supported by affidavit showing (i.) that the applicant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who has sued or is expected to sue for the same; (ii.) that he does not collude with such third party; and (iii.) is ready to bring the subject matter into Court, or pay or dispose of it as ordered. If either party do not appear, his claim is barred. If both appear, and there is really a question between them, the judge may direct a feigned issue, that is, an issue without any pleadings, or when the amount in dispute is small, or the question is one of law, and the facts are not in dispute, decide the matter summarily.

At what period in an action may a defendant now interplead?

At any time after having been served with a writ of summons, and before delivering defence.

CHAPTER XI.

WRIT OF MANDAMUS.

What is a writ of mandamus?

The prerogative writ of mandamus, which issues out of the Queen's Bench alone on motion, is a remedial writ of a very extensive nature, chiefly confined to cases where relief is required for infringement of public rights, in which the public at large are interested.

The writ of mandamus, granted under 17 & 18 Vict. c. 125, applies to the cases of infringement of duties of a public or quasipublic nature, in which the plaintiff is personally interested.

By the 25th sect. of the Judicature Act, 1873, sub-section 8, a mandamus is now granted upon interlocutory order, in all cases in which it appears to any Court just or convenient.

Explain the nature of a writ of prohibition; and to what Courts, and under what circumstances, will it issue?

It is a writ directed to the judges and parties of a suit in any inferior Court commanding them to cease from the prosecution thereof, upon a surmise either that the cause originally, or some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other Court. The writ may issue to any species of inferior Court if it concerns itself with some matter not within its jurisdiction. It may likewise issue if in handling matters clearly within its cognizance such Court should transgress the bounds prescribed to it by the laws of England, as where a spiritual Court requires two witnesses to prove a release or payment of tithes, or the like.

How does a writ of Habeas Corpus issue, and does it run in the Colonies?

On an order or rule of Court granted on application by motion supported by an affidavit of the facts, and granted where the Court is satisfied that some reasonable ground exists for issuing it.

The writ formerly ran into all parts of the dominions of the Crown wherever situate; but, by 25 & 26 Vict. c. 20, it was enacted that no writ of habeas corpus shall issue out of England by authority of any judge or Court therein into any colony or foreign dominion of the Crown, wherein her Majesty has authority to grant and issue such writ and ensure its due execution throughout such colony or dominion.

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