QUESTIONS AT THE EXAMINATION OF ARTICLED CLERKS, &c. &c. PRELIMINARY. 1. Where, and with whom, did you serve your clerkship? 2. State the particular department or departments of the law to which you have principally applied yourself during your clerkship. 3. Mention some of the principal law books which you have read and studied. 4. Have you attended any, and what, law lectures? COMMON AND STATUTE LAW AND PRACTICE OF THE COURTS. 1. If a defendant being under terms of pleading issuably plead a plea that is not issuable, what course should the plaintiff adopt? Answer. Sign judgment.-Archbold's Pract. by Chitty, b. 1, pt. 1, s. 2, div. 4 and 5; Waterfall v. Glode, 3 Term. Rep. 305; Cuming v. Sharland, 1 East, 411; Serle v. Bradshaw, 2 Cr. and Mee. 148. Even after an order to plead several matters.-Humphreys v. of Waldegrave, 8 Dowl. 768; 6 Mee. and W. 622, S. C. 2. What is the meaning of an issuable plea? Earl A. A plea tendering some matter upon which, if issue be taken, the case would be decided upon its merits.-Per Parke B. in Humphreys v. Earl of Waldegrave, 6 Mee. and W. 622; 8 Dowl. 768, S. C.; Dearden v. Holden, 1 Burr. 605; Foster v. Snow, 2 Burr. 782; Wagstaffe v. Long, Barnes, 263; Simeon v. Thompson, 8 Term. Rep. 71; Thelusson v. Smith, 5 id. 152; Archbold's Pract. B. 1, pt. 1, s. 2, div. 4; 1 Weekly Law Mag. 524. 3. Where a new trial has been granted and the plaintiff does not give notice of trial, what steps should the defendant take to terminate the cause? A. Take the record down by proviso.-Staffordshire, &c., Canal Co. v. the Trent, &c., Canal Co., 5 Taunt. 577; 2 Archbold's Pract. by Chit. B. 4, pt. 1, ch. 27; R. H. 2 W. 4, reg. 1, s. 71. 43. 1307. 4. What period must be allowed to elapse after issue joined before a defendant can move for judgment as in case of a nonsuit; firstly in a town, secondly in a country, cause? A. Town causes.-Issue joined in or in the vacation before any term, the motion may be made in the second term next after. Thus issue joined in, or in the vacation before Hilary Term, motion may be made in Trinity Term. Country causes.-Issue joined in, or in vacation before, an issuable term, motion after lapse of two assizes. Issue joined in, or in vacation before, a non-issuable term, motion after lapse of one assize. See directions to officers of the courts, &c., at end of the case of Helles v. Kidd, 10 Mee. and W. 76; 2 Dowl. N. S. 326; 1 Weekly Law Mag. 300. 5. What is the course to be pursued by a plaintiff, on a defendant, executor, or administrator, putting a plea of plene administravit without any other plea, the plaintiff believing the plea to be true? A. The plaintiff should confess the plea and sign judgment of assets quando venerint.—Mara v. Quin, 6 T. R. 1. On ascertaining that the executor has received assets subsequent to the judgment, plaintiff must proceed against him by sci. fa. before he can have execution.-2 Williams on Executors, 1221; Chit. Archbold, 828, 879, 7th ed. 6. In what cases are personal representatives personally liable for the costs of actions brought against them in their representative characters? If an executor or administrator plead a plea which is false within his own knowledge (as ne unques executor or administrator, or a release to himself, or a judgment recovered against himself or the like), he is personally liable to costs to be levied absolutely de bonis propriis; but if he plead a plea which is false, but not necessarily within his own knowledge, as that the testator or intestate did not promise, he is liable to costs conditionally, that is, to be levied de bonis testatoriis et si non de bonis propriis.-Howard v. Jemmett, 3 Burr. 1368; 1 W. Bl. 400 S. C; 2 William's Executors, 1412; Chit. Practice by Archbold, 881, 7th ed. 7. The defendant in an action having, without pleading any other plea, paid into court, under a plea of payment, a less sum than that claimed by the plaintiff, who nevertheless proceeds in the action and does not recover any larger amount, what are the respective rights of the parties as to costs? A. Before the statute 3 & 4 W. 4, c. 42, money could only be paid into court where the sum demanded was a sum certain or capable of being ascertained by mere computation.-Hallett v. East India Company, 2 Burr. 1120; and see Hodges v. Lord Litchfield, 9 Bing. 713; 3 Mocre and Scott, 201, S. C.; but now by that statute it is enacted that in all personal actions, except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversa tion or debauching the plaintiff's daughter or servant, it shall be lawful for the defendant, by leave of any of the superior courts where such action is pending, or a judge of any of the superior courts, to pay into court a sum of money by way of compensation or amends in such manner as the said judges may from time to time direct. If plaintiff proceed to trial and do not recover more than the sum paid into court. the defendant will be entitled to the whole costs of the cause. -Rule Hil. T., 1 Vic.; Griffiths v. Williams, 1 T. R. 710; Stevenson v. Yorke, 4 T. R. 10; 1 Saunders, 33, c. The plaintff might at any time before the trial have stayed his proceedings on paying to the defendant the costs incurred subsequent to the plea of payment, and will be entitled to receive from the defendants costs up to that time.-Hartley v. Bateson, 1 T. R. 629; Griffiths v. Williams, 1 T. R. 710; James v. Raggett, 2 B. and Ald. 776, 1 Chit, Rep. 471, S. C. The usual practice since the case of Heale v. Baker. 2 Dowl. 125, is for a defendant who purposes paying into court part of the sum claimed by the writ, to take out a judges' summons to stay proceedings on payment of the lesser sum and costs to that time; if the plaintiff refuses to take this sum, the judge will endorse the summons, "the plaintiff claims more ;" and if the plaintiff should at any subsequent period of the action accept this sum in full, or should proceed to trial and recover no more, the Master, in taxing the costs, will allow the defendant costs from the return of the summons. 8. In what respect is the action of debt preferable to those on promises and in covenant? A. Judgment by default in debt is final; whereas, both in promises and covenant, it is, in the first instance, interlocutory; but if the action in covenant be for non-payment of a liquidated sum, as for non-payment of money lent on mortgage, for non-payment of rent on a lease, or for the arrears of an annuity, a judge will refer it to the Master to compute principal and interest.—Thelluson v. Fletcher, 1 Doug. 316; 1 Esp. 73 S.C.; Wingfield v. Cleverley, 13 Price. 53.; Berthen v. Street, 8 T. R. 326.; Byrom v. Johnson, 8 T. R. 410.; Campion v. Crawshay, 6 Taunt. 356. ; 2 Marsh. 56 S.C.; Alloway v. Hill, 2 Chit. Reports, 32. So if the action be in assumpsit, there must be a writ of enquiry, except where it is on a bill or note.-2 Chitty's Archbold, 709, 7th ed. 9. Define a specialty, and a simple contract debt? A. Debts by specialty or special contract are such whereby a suın of money becomes, or is acknowledged to be, due by deed or instrument under seal. Debts by simple contract are such where the contract upon which the obligation arises, is neither ascertained by matter of record nor by deed or special instrument, but by mere oral evidence. -2 Blacks. 465. 10. State the respective periods at which such debts are barred by the Statute of Limitations? A 2 A. By 3 & 4 W. 4, c. 43, a debt by specialty is barred after a lapse of twenty years, except in cases of persons under disabilities (s. 4), or written acknowledgements (s. 5); before this statute, the judges recommended the jury to presume a specialty debt di charged after a lapse of twenty years.-2 T. R. 270. By statute 21, Jac. I, c. 16, all actions on simple contract debts, are limited to six years after the cause of action commenced. 11. What must be proved to take a debt otherwise barred by the statute out of the operation of such statute? A. Persons who are under age, fême coverts, non compos mentis, in prison or abroad, when the cause of action accrues, are not within the statute. (Sec. 7.) By statute 9 Geo. 4, c. 14, it is enacted, no acknowledgments should be deemed sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of the statute, unless such acknowledgment be in writing, to be made by some party chargeable thereby. The Act not to alter the effect of any payment of principal or interest made by any person. By 2 W. 4, c. 39, s. 10, it is enacted, that every writ of summons and capias may be continued by alias and pluries as the case may require, if any defendant may not have been arrested thereon, or served therewith; every such writ to be returned non est inventus, and entered of record, within one calendar month next after the expiration thereof; every writ issued in continuation of any preceding writ to be issued within one calendar month after the expiration of such writ, and having memorandum of the date of the original writ indorsed thereon, the return to be made to bailable process by the sheriff or other officer to whom directed, and in non-bailable by the attorney suing out the the same. In order, therefore, to take a case out of the operation of the Statute of Limitations it is necessary either to prove a subsequent promise in writing, a part payment of principal, or a payment of interest within the period, or the due entry of continuances on the roll. 12. Define slander and libel, and state what is the form of action, and what is the present law as to costs? A. Slander is the publishing of words in writing or by speaking, by reason of which the person to whom they relate becomes liable to suffer some corporeal punishment, or to sustain some damage.-Bac. Abr. tit. "Slander." Libel is a malicious defamation, expressed either in printing or writing, or by signs, pictures, &c., tending to injure the reputation, and thereby exposing the person to public hatred, contempt, and ridicule. This species of defamation is usually termed written scandal. -Bac. Abr. tit. "Libel." The remedy in both cases is by action on the case.-Com. Dig. tit. "Action on the case for Defamation." Formerly any damages, however small in an action for libel, would carry costs; but in slander, if the damages were under 40s. by 2 Ja. 1, c. 16, the plaintiff recovered not more costs than damages; but now by Lord Denman's Act the costs are in the discretion of the judge, for where plaintiff recovers less than 40s. in actions of trespass and trespass on the case, unless the judge certifies immediately that the action was brought to try a right, or that trespass was wilful, &c., plaintiff will recover no costs. 13. On being called in to attest a warrant of attorney or cognovit, as the attorney of a person previously a stranger to you, what inquiries should you make of him, and what explanations should you give to him of the nature thereof? A. The statute which requires the presence of an attorney as the attesting witness (1 & 2 Vic. c. 110, sec. 9) is in the following terms: No warrant of attorney to confess judgment in any personal action or cognovit actionem given by any person, shall be of any force, unless there shall be present some attorney of one of the superior courts on behalf of such person, expressly named by him and attending at his request to inform him of the nature and effect of such warrant or cognovit before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney. The attorney attesting the execution on the part of the person giving the instrument should therefore inquire whether the person has of his own free will, and without any influence or suggestion from the opposite party, nominated him as his attorney, should ascertain that the debt is really due, and should in all cases read over the instrument to the party about to execute it, and give such explanation of the purport thereof, proportionate to the capacity and knowledge of the party, as will enable him conscientiously to subscribe his name as attorney for the defendant to the ordinary attestation clause. 14. At what period should an application be made to set aside an award? A. If there be no action pending, and the submission does not contain a clause that it may be made a rule of Court, the award cannot be set aside.-2 Chitty's Archbold, 1251, 7th ed. When the submission contains the clause of consent above mentioned, this application must be made before the last day of the term next after the award is made and published.-9 & 10 W. 3, c. 15, sec. 2. As to when award is said to be published, see Musselbrook v. Darkin, 1 Dowl. 722, S. C.; 2 Moore and Scott, 740; 9 Bingh. 605; Mc Arthur v. Campbell, 5 B. & Ad. 518 ; 2 Nev. & Man. 444 S. C. The above mentioned statute does not extend to those cases where the reference has been by order of Nisi Prius (Synge v. Jervois, 8 East. 466; Lucas v. Wilson, 2 Burr. 701; Manser v. Heaver, 3 B. & Adol. 295; Rawsthorne v. Arnold, 6 B. & C. 629); nor to other cases where an action is pending and the reference has been by rule of court or |