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5. After the defendant has been taken on the capias, must he be served with any other writ before declaration ?
Ans. He must be served with the writ of summons. By sec. 5 it is enacted, that a defendant in custody not previously served with writ of summons may be lawfully served therewith. The court will grant a rule to discharge defendant, unless he be served with writ within a limited time.-Brooke v. Snell, 8 Dowl. 370, 4 Jur. 340.
6. Within what time after service of writ must a plaintiff declare?
Ans. Before the end of the term next after the execution of the writ; otherwise, a judgment of nonpros may, if the defendant have appeared be signed at the expiration of four days next after, a written demand of declaration served upon the plaintiff, his attorney or agent. 2 Chitty ; Archbold, p. 137, 1052, 7th ed. But if no such nonpros be signed, plaintiff may declare at any time within a year after the execution of the writ, but if he do not declare within that time, he will be out of court.-R. H. T., 2 W. 4, r. 35.
7Define an issuable pleq ? i Ans, A plea tendering some matter upon which, if issue he 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..
8. Define respectively pleas by way of traverse, and by way of confession and avoidance.
Ans. A plea by way of traverse must deny all, or some essential part of, the averments of fact in the declaration, and is a short and conclusive answer to the action. • A plea by way of confession and avoidance, admitting the facts in the declaration to be true, alleges some new facts, which obviate or repel their legal effect.-—Stephen on Pleading, p. 52.
9. What is the name of the pleading put in by the defendant in answer to the plaintiff's replication ?
Ans. The rejoinder.—Steph. on Pleading, p. 50. · 10. Define interlocutory and final judgments respectively? s Ans. If the action sound in damages (according to the technical ... phrase)—that is, be brought not for specific recovery. of lands, goods,
or sums of money (as is the case in real and mixed actions, or the personal actions of debt and detipue), but for damages only, as in covenant, trespass, &c., and if the issue be an issue in law, or any issųe, in fact, not tried by a jury, then the judgment is only that the plaintiff ought to recover his damages without specifying their amount; for as there
has been no trial by jury in the case, the amount of damages is not yet - ascertained ; the judgment is then said to be interlocutory. On such interlocutory judgment the court does not in general itself undertake
the office of assessing the damages, but issues a writ of inquiry directed to the sheriff of the county where the facts are alleged by the pleading to have occurred, commanding him to inquire the amount of the damage sustained“ by the oath of twelve good and lawful men of his county,” and to return such inquisition, when made, to the court. Upon the return of the inquisition the plaintiff is entitled to another judgment, viz., that he recover the amount of damages so assessed ; and this is called final judgment. But if the issue be in fact, and was tried bya jury, then the jury at the same time that they tried the issue would assess the damages. In this case, therefore, no writ of inquiry is necessary, and the judgment is final in the first instance. Again, if the action do not sound in damages, the judgment is in this case also (in general) final ; and to this effect, that the plaintiff recover seizin, &c.; or that he recover the debt, &c.—Steph. on Pleading, 3rd ed., pp. 105, 106.
The judgment is interlocutory in assumpsit, covenant, trespass, case, and replevin. If the amount of damages be a mere matter of calculation, the court will assess the damages, as in actions on bills of exchange, promissory notes, or on a banker's cheque; and in an action on an award, in covenant for non-payment of a liquidated sum, &c.2 Chitty's Archbold, 709, 7th ed.
11. In what manner are issues in fact and in law respectively tried ?
Ans. The decision of issues in law is vested, as it always has been, exclusively in the judges of the court. Plowd. Com. 231; Abstract of Strata Marcella's case, 9 Rep. 24.
The decision of an issue in faet is called the trial; the different methods of trial now in force are, the trial by jury, by the record, by certificate, and by witnesses. Of these, the trial by certificate, and by witnesses are now of very rare occurrence ; the trial by record applies
to cases where an issue of nul tiel record is joined in any action; the · trial by jury is the ordinary method, and may be either at nisi prius or at bar.-Steph. on Pleading, pp. 6, 7, et seq.
12. When evidence has been received at a trial, although not legally (admissible, what course is open to the party aggrieved ?
Ans. He is at liberty after the trial to move the court in banc for a new trial.-—Steph. on Pleading, 94.
The application must be made to the court out of which the venire issued ; if the cause be tried in term, it must be made within four days · after the return of the distringas; or if tried in vacation within the first · four days of the following term.--2 Chitty's Archbold, 1099.
13. Define a judgment as in case of a nonsuit, and what is the origin?
Ans. If after issue is joined the plaintiff neglects to bring such issue on to be tried in due time, as limited by the course and practice of the court in the particular case, judgment will also be given against him for this default, and is called judgment as in case of a nonsuit.-Steph. on Pleading, 109; 2 Chitty's Archbold, 1070, 7th ed. This was introduced by stat. 14 G. 2, c. 17, s. 1.
14. 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?
Ans. 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.
15. What steps must be taken by the holder of a bill previously to commencing an action against any other party than the acceptor?
Ans. The bill must be presented for payment when due, and the holder should give notice of the dishonor to every party, whom he intends to sue on it. The notice of dishonor must clearly describe the bill, and state that it was not paid by the acceptor when due, and that the holder looks to the person to whom notice is given for the payment.—, Solarte v. Palmer, 7 Bing. 629; 5 Moore and Payne, 475, S. C., affirmed in Dom. Proc. 1834, 1 Bing. N. R. 194; Hartley v. Case, 4 Barn, and Cress. 339. Where the parties live at different places, it is sufficient to send the notice the day after the dishonor.-Williams y. Smith, 2 B. and A. 496. If the parties live in the sanie town, notice (if sent by post) must be posted so as to be received the day following the notice of dishonour.-Smith v. Mullett, 2 Camp. 208. A party receiving notice need not transmit it until the next post after the day on which he himself received the notice.-Geill v. Jeremy, 1 M. & M. 61 ; and see Byles on Bills, cap. 18.
BANKRUPTCY. 1. What are the circumstances which regulate the issuing of a town or country fiat ?
Ans. The first question to be considered as to whether a fiat should be opened in the country or in town is whether the bankrupt does or does not reside within the jurisdiction of the town commissioners. Their jurisdiction extends to all those parts of England for which district commissioners have not been appointed.-See, as to what parts are within the jurisdiction of the town commissioners, 1 Weekly Law Magazine, p. 367. If the bankrupt reside within the town district, then the fiat must be a town one; if otherwise, then a country fiat. But should a large majority of the creditors of a debtor residing in a county, be resident in or near London, the court on application, supported by affidavit, would issue a town fiat. But it is said that a country fiat wil not, except under very special circumstances, be allowed to issue against a London trader.-Exp. Hill, Mont. 260; Mont. & Ayr Bank. Práct. ch. 8.
2. What are the facts necessary to be proved before an adjudication of bankruptcy can be obtained ?
Ans. Ist. The petitioning creditor's debt must be proved, and that; too, by hiniself in person, unless too ill to attend, &c.—Lord Loughborough’s Order of 26th Nov. 1798; Exp. Foster, 17 Ves. 414; 8 Ves. 318 ; Mont. & Ayrt. Bankr. Pract. 105. - 2nd. Proof must be given of trading.-Mont. & Ayrt. Bankr. Pract: 108.
3rd. An Act of Bankruptcy must be proved.-Mont. & Ayr. Bankr. Pract. 108.
3. What persons are rendered liable to the bankrupt laws by the late Act who were not before ?
Ans. Alum-makers, apothecaries, auctioneers, brick-makers, carriers, coach-proprietors, cow-keepers, lime-burners, livery-stable-keepers, market-gardeners, millers, and ship-owners.—5 & 6 Vict. c. 122.
4. What is the requisite amount of the petitioning creditor's debt, where only one, and where several ?
Ans. The single debt of a petitioning creditor, or of two or more persons being partners, must amount to £50 or upwards, the debt of two creditors must amount to £70 or upwards, and the debt of three or more creditors must amount to £100 or upwards. -5 & 6 Vict. c. 122. 5. Is an attorney or solicitor liable to the bankrupt laws?
Ans. If an attorney receive other persons' moneys to lay out on security, and he charge for the employment, it has been ruled that he is a scrivener, notwithstanding he draw the security. But it must distinctly appear that he has been entrusted and has received other men's moneys or estates into his trust or custody, as a general means of obtaining a livelihood. But though he may not come within the description of a scrivener, yet if he have been in the habit of having the money of his clients deposited with him to lay out for them for instance, upon mortgage- and have received from others a compensation or gratuity for procuring loans of money for them, besides his charges for preparing the mortgage securities, he will be a trader within the meaning of the bankrupt laws, as a money broker and a person receiving other men's moneys into his trust or custody.-Exp. Bath, Mont. 82; Exp. Warren, Schoales, 421; Adams v. Malkin, 3 Campb. 540; Lott v. Melville, 3 Scott's N. R. 346; 9 Dowl. 882 ; 5 Jur. 436, S. C.; Exp. Gem and Pooley, Re Rumsey, 5 Jur. 683; 2 Mont. D. and D. G: 99, S. C. ; Exp. Edwards, Re Edwards, 1 Mont. D. and D. G. 3; Mont. and Ayrt. Bankr. Pract. 12. : 6. Is there any, and what, mode by which a trader may be compelled to commit an act of Bankruptcy ?
· Ans. By sec. 20, of 5 & 6 Vict. C. 122, if a trader does not, within 14 days after notice in writing personally served upon him by a judgment creditor, requiring immediate payment, pay, secure, or compound for the judgment debt, he shall be deemed to have committed an act of bankruptcy on the 15th day after service of such notice. -See 1 Week. Law. Mag. p. 37. . By other sections of the same statute, if any creditor shall file an affidavit of his debt &c., the Court of Bankruptcy may issue a summons, calling upon the trader to appear before the court. If the trader refuses to appear, or if appearing he refuses to admit the creditor's demand, and does not make a deposition stating that he believes he has a good defence to such demand, then, if he does not, within 14 days after serving of such summons, pay, secure, or compound, for such demand, or enter into a bond with two sufficient ureties, to pay şuch' sum as shall be recovered in any action by the creditor, together with costs, every such trader shall be deemed to have committed an act of bankruptcy, on the fifteenth day after the service of such summons. (Sec. 11 to 19).-1 Week. Law. Mag. 37, 38: « 7. Must any, and what notice, be given to the bankrupt before the bankruptcy can be advertised in the London Gazette ?
Ans. Before advertising the adjudication in the London Gazette, and at and before the time of putting in execution any warrant of seizure which shall have been granted on such adjudication, a duplicate of such adjudication shall be served on the person so adjudged bankrupt, personally, or by leaving the same at the usual place of abode or place of business of such person, and such person slıall be allowed five days from the service of such duplicate, to show cause to the Court authorised to act in the prosecution of the fiat under which such adjudication shall have been made, against the validity of such adjudication.-5 & 6 Vict. c. 122; 1 Week. Law Mag. 38.
8. Are debts barred by the Statute of Limitations proveable under a fiat ? · Ans. A debt barred by the Statute of Limitations, is not proveable.Exp. Dowdney, 15 Ves. 480; Exp. Roffey, 2 Rose, 245; Exp. Seaman, 15 Ves. 480. The statute does not, however, run against the debtor after the fiat has issued, and does not, therefore, affect debts not previously barred.—Exp. Ross, 2 Glyn, and Jam. 46, 330. Nor does it apply to dividends on a debt proved.-Exp. Healey, 1 Deac. and Ch. 369 ; Mont. and Ayrt. Bankr. Pract. 169.
9. If a creditor possess any collateral security for his debt, will he be allowed to prove under the fiat, and retain bis security ?
Ans. If the creditor have a several security by mortgage, &c., froin the bankrupt, and insist on proving for the whole debt secured, he must deliver up the security.-Exp. Bennett, 2 Atk. 528; Exp. Grove, 1 Atk. 104; Exp. Tierney, Mont. 78. But if the creditor have a joint security from the bankrupt and any other person, or a separate security from a third person, he may prove against the bankrupt without giving