UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
.THW*TlPublUher« uid 
 
JUST PUBLISHED. Price 18s. ; Cash, 14s. 6d. ; or post free, for cash with order, 15s. 
 
 THIRD EDITION, thoroughly revised and VERY CONSIDERABLY ENLARGED. 
 
 A M: AN XJ A L 
 
 OF 
 
 THE PRINCIPLES OF EQUITY 
 
 A Treatise on Equity, specially written for Students, and intended 
 
 in particular as a complete Text-Book for Candidates for the 
 
 Solicitors' Final Examination. 
 
 By JOHN INDE-RMAUR, Solicitor, &c. 
 
 OPINIONS OF THE PRESS ON THE SECOND EDITION. 
 
 " This manual is an excellent one for the purposes for which it is primarily intended, and 
 thoroughly deserves its popularity. It is clear throughout, and the effect of the leading cases 
 admirably stated. . . . The student will gain a real insight into Chancery law by its perusal. 
 The cases cited are ample for the student's purpose, and it is, we think, a great merit of the boolc that 
 it is not overloaded with cases in which no new principle is laid down. By the multiplication of 
 comparatively unimportant cases, the student's mind is often confused, and the principles of Equity 
 lost sight of. Mr. Indermahk's Index is excellent."— inu! Times, 1.5th February, 1890. 
 
 "The first edition of this little bonk was published in 1886, and so well has it been received by 
 students that a new issue is now called for. Mr. Indekmauk's experience in writing for students has 
 been acquired in the course of a long career of successful coaching, which has enabled him to put 
 clearly and concisely before his readers just that which will be of most service to them. The book 
 has been amplified and carefully revised, and some portions of it have been practically re-written."— 
 Law Journal, 8th March, 1890. 
 
 LONDON : GEO. BARBER, 16, CURSITOR STREET, CHANCERY LANE, 
 And all Law Booksellers. 
 
 Demy 8vo. Price 5s. 6d. ; Cash, 4s. 6d. ; or Po.st Free, 4s. 9d. THIRD EDITION. 
 
 THE 
 
 Student's Guide to Prideaux's CouYeyancing, 
 
 By JOHN INDERMAUR, Solicitor. &c , 
 
 A uthoi- of " Principles of Common Law," " .Vanual of Practice," "Manual of the Principles of Equity," 
 " Epitomes of Leading Cases," etc., etc., 
 
 BEING 
 
 NOTES ON PRIDEAUX (15th EDITION), 
 
 Interleaved for the Use of Students, 
 And with a Set of Test Questions on the Work ; Epitomes of various Acts of Parliament, including 
 The Vendor and Purchaser Act, 1874 ; The Conveyancing Acts, 1881 to 189-2 ; The Settled Land 
 Acts, 1882 to 1890 ; The Trustee Act, 1888 ; Tlie Trust Investment Act, 1889. 
 
 A FEW OPINIONS OF THE PRESS ON THE THIRD EDITION. 
 '■Mr Indeiimai'r's excellent ' S iident's Guide to Prideaux's Conveyancing' has reached a third 
 edition appropriately within a short lime of the appearance of the fifteenth edition of ' l^ndeaux 
 The thoroughness of Mr. Indei^maur's work is too well known to need comment from us. and we rieed 
 only say that this edition is thoroughly up to dare. The book is interleaved so that the student mav 
 add his' own notes."— i«ic Times, March 18th, 1893. 
 
 " The fifteenth edition of ' Prideaux's Conveyancing ' was published in January, 1893, and in t'le 
 following month Mr. Indeiimauu brought out the third edition of his Student's Guide' to that standard 
 treatise In spite of the lioftile criticism to which works like the present are so constantly sub- 
 jected, we believe that they fulfil a not unimportant function in legal education if they are used as 
 Mr iNDERMAiiR urges students to use his ' (iuide '-luerely as method-i of inquiry and as nitroductory 
 primers to the standard books whose contents they dig;'St. Mr. Indehmaur's Manual is interleavea 
 with blank pages in order that students mav add to his notes at their discretion. We thmk that this 
 little work, which is entirely unpretentious in its character, is c:ilculated both to induce students to 
 read 'Prideaux ' and to ass'st ttiem in its perusal." — Law Journal, March 18th, 1893. 
 
 LONDON : GEO. BARBER, 16, CUKSITOR STKEET, CHANCERY LANE, 
 And all Law Booksellers. 
 
THE STUDENT'S GUIDE 
 
 TO 
 
 PROCEDURE 
 
 IN THE QUEEN'S BENCH DIVISION OF THE 
 HIGH COURT OF JUSTICE, 
 
 AND TO THE LAW OF 
 
 EVIDENCE GENERALLY. 
 
ii 
 
STTJI)JK]|r'S .JUIIDE 
 
 PR(jeiEDUEE 
 
 IN THE QUEEN'S BENCH DIVISION OF THE 
 HIGH COURT 
 
 AND TO THE LAW OF 
 
 EVIDENCE. 
 
 r.Y "■ 
 
 JOHN INDERMAUR, Solicitor, 
 
 II I 
 
 {First Prizeman, Michaelmas, 1872), 
 
 Author of " Principles of Common Law," "Manual of Equity," " Manual of Practice, 
 
 Joint Author with Mr. Thwaites of 
 
 "The Student's Guide to Real and Personal Property," &c., &c. 
 
 AND 
 
 CHARLES THWAITES, Solicitor, 
 
 (First in First Class Honours, June, 1880; Sheffield District Prizeman, 1880; 
 
 Beardon {Yearly) Prizeman, 1880 ; Scott Scholar, 1880, and 
 
 Conveyancing Gold Medallist, 1880), 
 
 Author of " A Guide to Criminal Law," 
 
 Joint Author with Mr. Indermaur of 
 
 " The Student's Guide to Real and Personal Property," &c., &c. 
 
 LONDON: 
 
 GEO. BARBER, "LAW STUDENTS' JOURNAL" OFFICE, 
 
 16 & 17, CURSITOR STREET, CHANCERY LANE. 
 
 18 4. 
 
II 
 
 / 
 
 In ^^ ^f 
 
 LONDON : 
 
 PRINTED BY GEO. BARBER, CURSITOR STREET, 
 
 CHANCERY LANE, B.C. 
 
 f- 
 
^ ADVERTISEMENT. 
 
 nT 
 
 't — ♦ 
 
 ~? 
 
 "rt^ This little work forms one of a series of Guides to the 
 
 'i^ Bar Final by the Authors. The others are — on Real 
 
 and Personal Proj^erty, third edition, by IVfessrs. 
 Indermaur and Thwaites ; on Criminal Law, third 
 edition, by Mr. Thwaites ; on Common Law, third 
 edition, by Mr. Lidermaur ; on Trusts and Partner- 
 ships, second edition, by Mr. Indermaur ; and on 
 Specific Performances and Mortgages by Messrs. 
 Indermaur and Thwaites. The two Guides last named 
 are now obsolete, but Messrs. Indermaur and Thwaites 
 have in preparation a new Guide on the Principles of 
 Equity generally. 
 
 It is hoped that this Guide will be found of 
 use by the class for whom it is written. Though 
 particularly intended for Bar Students, it may, 
 perhaps, be found of service to Articled Clerks as well. 
 
 Messrs. Indermaur and Thwaites continue to pre- 
 pare Students in class, privately, and by post, for the 
 Bar Final Examinations, Solicitors' Final (Pass and 
 Honours) Examinations, and Solicitors' Intermediate 
 Examination. Particulars may be had on application, 
 personally or by letter, to Messrs. Indermaur and 
 Thwaites, at their Chambers, 22, Chancery Lane, 
 London, W.C. 
 
 32, Chancery Lane, London, 
 May, 1894. 
 
CONTENTS 
 
 INTRODUCTORY AND GENERAL 
 
 PAGE 
 1 
 
 PROCEDURE : 
 
 I. — An Elementary Sketch of Common Law Pkactice . . o 
 
 II. — Test Questions on Parts I., II., and IV. or "Inder- 
 
 maur's Manual of Practice," Sixth Edition . . 11 
 
 III. — DiC4EST of Questions and Answers 
 
 (1) Preliminary 
 
 (2) Commencement of Action, Appearance, Judgment on 
 
 Default of Appearance and under Order XIV. 
 
 (3) Interlocutory Proceedings 
 
 (4) Trial and Subsequent Proceedings 
 
 (5) Miscellaneous 
 
 22 
 22 
 
 25 
 38 
 44 
 54 
 
 EVIDENCE 
 
 I. — Test Questions on "Stephen's Digest of Evidence," 
 
 Fifth Edition . . . . . . . . 62 
 
 II. — Questions and Answers on Evidence 
 
 67 
 
/,-■ irV/ 
 
 THE STUDENT'S GUIDE 
 
 TO 
 
 PROCEDURE 
 
 IN THE QUEEN'S BENCH DIVISION OF THE 
 HIGH COUKT OF JUSTICE, 
 
 AND TO THE LAW OF 
 
 EVIDENCE GENERALLY. 
 
 INTRODUCTORY AND GENERAL. 
 
 For some time past the regulations at the Bar Final have 
 permitted students to select four papers out of a total of six 
 as their subjects for this examination, and one of the subjects 
 that can be selected is Procedure and Evidence. This is the 
 present state of things, but at and subsequently to Easter, 
 1895, when the new arrangements (issued on 5th March, 
 1894) come into force, all students must take up the subject 
 of Procedure and Evidence. It appears to us, therefore, that 
 the time has arrived when a Guide on these subjects will be 
 of very general utihty to Bar students. This small work is, 
 therefore, specially framed with a view to the Bar Final, but 
 at the same time it may be of service to students for the 
 Solicitors' Final. 
 
 The bare heading " Procedure and Evidence " is some- 
 what vague, leaving it doubtful whether it includes all 
 matters of Procedure and all matters of Evidence, or only 
 Civil Procedure and Evidence, or at any rate only Procedure 
 
 B 
 
2 THE STUDENT S GUIDE TO 
 
 ill the Queen's Bench Division. We are, however, assisted 
 in coming to a conclusion by the announcement that is 
 made, that students will only be examined in all matters 
 so far as they have been treated in the lectures and classes 
 during the two years preceding each examination. Now, 
 the lectures have dealt with Procedure in the Queen's Bench 
 Division, and with Criminal Procedure and Principles, but 
 not with Procedure in the Chancery Division. Evidence has 
 been dealt with generally. AVe have come to the conclusion 
 ill this work to deal not only with Procedure in the Queen's 
 Bench Division, but with Evidence generally. We omit all 
 special reference to Chancery Procedure, because that never 
 has been lectured on yet. AVe omit all special reference to 
 GritQiiaai'.Prl>(?edure and Principles, because there is another 
 book of the same style as this present one, which deals 
 generally with Criminal Law and Procedure (*), and 
 students can get all they require from that. Besides, we 
 may observe that, to some extent, the Principles of Criminal 
 Law have been lectured on, and such simple questions as 
 the difference between Larceny and False Pretences have 
 been asked ; and we should not be surprised at any time to 
 see an announcement of a Criminal paper being set. To a 
 limited extent students should, therefore, get up Principles of 
 Criminal Law as well as Criminal Procedure, and, therefore, 
 we have decided in this work not to deal with Criminal 
 Procedure, but to leave students to get that up from Thwaites' 
 Guide to Criminal Law. As regards Evidence, there is so 
 little distinctively applicable to Criminal matters as opposed 
 to Civil matters, that we have come to the conclusion to deal 
 with that subject generally. 
 
 Now, firstly, then, taking the subject of Procedure in the 
 Queen's Bench Division of the High Court, we recommend 
 students to read this first from Indermaur's Manual of 
 
 * A Guide to Criminal Law. By Charles Thwaites. Published by 
 G. Barber, 16, Cursitor Street, E.C. .3rd edition, lb9I. Price .5s. 
 
PROCEDURE AND EVIDENCE. 3 
 
 Practice (*). This work contains Queen's Bench and 
 Chancery Practice, and the part relating to the latter may 
 be omitted. The student should read Parts I. & II., viz., 
 pp. 1-181. Then it would also be advisable to read Part IV. 
 on Appeals, being pp. 269-283. We think that a very 
 thorough knowledge of Procedure will be gained from this 
 book, but, of course, it will be of assistance to have the 
 Annual Practice by one's side for occasional reference. It 
 is not always easy for those who have seen no practice to 
 grasp statements in text books, and a reference to the Eules 
 of Court is sometimes of great assistance. 
 
 As an introduction to the Practice we have given in this 
 work a slight elementary sketch of Queen's Bench Practice. 
 We have also given a set of Test Questions on the portions of 
 Indermaur's Manual of Practice which we (at present) advise 
 should be read. We recommend that this set of Test 
 Questions should from time to time be used whilst reading 
 the book. Finally, we have given a carefully prepared 
 Digest of Questions and Answers, mainly selected from the 
 Questions set during a number of years at the Bar Final. 
 This Digest of Questions and Answers should form the 
 student's final reading, and we feel convinced that if he will 
 thoroughly follow out the course we have indicated, he will 
 be able to satisfactorily cope with any examination on the 
 subject, and will at the same time have attained a very 
 sound knowledge on the subject. 
 
 Now, secondly, taking the subject of Evidence, we believe 
 the lecturer recommends Taylor on Evidence (8th edition, 
 1885), Broom's Maxims, and Stephen's Digest. Taylor 
 is a large work in two volumes ; and Best's Principles of 
 Evidence (8th edition, 1893), also covers some 620 pages. 
 Powell's Law of Evidence (6th edition, 1892), is a useful 
 book, but it contains 669 pages. The two handy books on 
 
 * 6th edition. Published by Stevens it Haynes, Bell Yard, London. 
 Price 14s. 
 
 B 2 
 
4 THE STUDENT S GUIDE TO 
 
 the Law of Evidence are (1) Phipson's Law of Evidence, 
 published by Stevens & Haynes in 1892, 430 pages, price 
 10s. 6d., and (2) Stephen's Digest of the Law of Evidence, 5th 
 edition, pubHshed in 1887 byMacmillan, in 209 pages, price Gs. 
 We recommend the Bar student to read (1) the chapter on 
 Evidence at the end of Indermaur's Principles of Common 
 Law ; (2) either Stephen's Digest or Phipson's ; and (3) to 
 conclude with a revision of the Questions and Answers on 
 Evidence which we publish herein, and which include all the 
 Questions hitherto set on this subject at the Bar Final. 
 We also give a series of Test Questions on Stephen's Digest, 
 as we know from a wide experience that is the work chiefly 
 affected by students, and these Questions should be carefully 
 worked through by all students when reading their text 
 book. 
 
 We now proceed to give the several matters we have 
 named, i.e. : — 
 
 Procedure — 
 
 1. An Elementary Sketch of Common Law Practice. 
 
 2. Test Questions on Indermaur's Manual of Practice, 
 
 Parts L, XL, and IV. 
 
 3. Digest of Questions and Answers on Procedure. 
 Evidence — 
 
 1. Test Questions on Stephen's Digest of Evidence. 
 
 2. Digest of Questions and Answers on Evidence. 
 
PROCEDURE AND EVIDENCE. 
 
 PROCEDURE. 
 
 I.— AN ELEMENTARY SKETCH OF COMMON 
 LAW PRACTICE. 
 
 Prior to the Judicature Acts there were in existence dis- 
 tinct Courts, viz. : — (1) The Courts of Common Law, and (2) 
 The Court of Chancery. The Courts of Common Law were 
 older in their origin than the Court of Chancery, being, indeed, 
 the outcome of that very ancient body, the Aula Regis. They 
 were three in number, viz., the Court of Queen's Bench, the 
 Court of Common Pleas, and the Court of Exchequer. The 
 Court of Chancery was of later date, and arose from the 
 defects of the Common Law, for in many cases the strictness 
 and rigour of the Common Law rendered it unable to give 
 rehef, and it became necessary to apply to the King in person 
 for aid, and the monarch deputing the matter to the Chan- 
 cellor, the practice gradually grew up of applying to the 
 Chancellor direct, so that Equity may be said to have had its 
 origin to supply the defects of the Common Law, and to 
 give relief where the Common Law was incompetent to do 
 so, at least without circuity of action or multiplicity of suits. 
 
 The Judicature Acts, 1873 and 1875, had for their object 
 the fusing of the Courts of Common Law and Equity into 
 one, and causing the same rules to be observed in each, 
 it being specially provided that where there was found to 
 be a difference between the rules of Law and of Equity, the 
 rules of Equity should prevail. The Judicature Acts came 
 into operation on the 1st of November, 1875. 
 
 The " Supreme Court of Judicature " is constituted by 
 the union of the various former Courts, viz. : (1) The Court 
 
6 THE student's GUIDE TO 
 
 of Chancery ; (2) the Court of Queen's Bench ; (3) the 
 Court of Common Pleas ; (4) the Court of Exchequer ; 
 (5) the Court of Admiralty ; (6) the Court of Probate ; and 
 (7) the Divorce Court ; and this Supreme Court is separated 
 into two permanent sections, viz. : " The High Court of 
 Justice " and " Her Majesty's Court of Appeal." The High 
 Court of Justice is separated into Divisions as follows ; 
 
 (1) the Chancery Division ; (2) the Queen's Bench Division ; 
 and (3) the Probate, Divorce and Admiralty Division, being 
 indeed, divisions analogous in the main to the previous 
 Courts. Certain matters are within the exclusive jurisdic- 
 tion of a particular division, but if the action is brought in 
 the wrong division it can be transferred, or retained there. 
 To facilitate the prosecution in country districts of certain 
 proceedings in an action, provision has been made for the 
 establishment throughout the country of District Kegistries, 
 where actions may be commenced and continued down to 
 entry for trial. 
 
 Proceedings in the High Court of Justice are commenced 
 by an action, the first step in which is a writ of summons. 
 This writ of summons commands the defendant to appear 
 within eight days, and indorsed on it are particulars of the 
 plaintiff's claim. In certain cases the plaintiff may specially 
 indorse his writ under Order III., rule 6, viz., where the action 
 is for a liquidated sum under some contract or statute or trust, 
 or for the recovery of land by a landlord against his tenant 
 holciing over after the expiration of his tenancy. 
 
 The advantages a plaintiff derives from specially in- 
 dorsing a writ are two, viz. : — (1) The special indorsement 
 operates as a statement of claim, and no further statement 
 of claim can be required or is, in fact, allowed to be delivered; 
 
 (2) Even if the defendant does appear, on an affidavit of good 
 cause of action, and that defendant has only appeared for the 
 purpose of delay, unless good cause is shown, an order may 
 be marie for the plaintiff to have judgment notwithstanding 
 
PROCEDURE AND EVIDENCE. / 
 
 the appearance. An application for such an order is called 
 a summons under Order XIV. On the hearing of such a 
 summons, if the Master or Judge gives leave to defend, he 
 may, if he thinks no prolonged hearing is necessary, direct 
 the action to at once be set down for trial in a special list. 
 
 The writ is served personally on a defendant if possible, 
 but if personal service cannot be effected an order may be 
 obtained for substituted service. The writ only remains in 
 force for twelve months, but it may be renewed from time to 
 time on showing that reasonable efforts have been made to 
 serve it, or for other good reasons. The defendant, person- 
 ally, or by his solicitor, should enter an appearance and 
 serve on plaintiff's solicitor a duplicate of the sealed memo- 
 randum of appearance, together with a notice of appearance, 
 within eight days. If an infant is a party to an action, he 
 sues by next friend, and defends by guardian ad litem. If 
 the defendant does not appear judgment may be entered 
 against him, which will be a final judgment if the claim is 
 for a liquidated amount, and if for an unliquidated amount 
 then interlocutory judgment, after which a Writ of Inquiry 
 must be issued to assess the amount of the damages. 
 
 Taking it that the defendant appears, and no application 
 is made under Order XIV. or that such an application is 
 unsuccessful, and the case has not been directed to be put 
 in the special list for speedy trial, we next have the pleadings, 
 the object of which is to show to the Court and jury the 
 questions in issue between the parties, and the facts on 
 which they respectively rely. These pleadings are as 
 follows : — 
 
 Statement of claim by plaintiff, to be delivered within six 
 weeks from appearance, or if the defendant demands a 
 statement of claim, which he may do on appearance or 
 within eight days therefrom, then within five weeks of such 
 demand. It contains a plain statement of the plaintiff's case 
 and what he asks. 
 
8 THE STUDENT S GUIDE TO 
 
 Statement of defence by defendant within ten days of the 
 delivery of the statement of claim. It contains a plain 
 statement of defendant's case. It may also contain a 
 comiter-claim against the plaintiff. 
 
 Statement of reply by d^feiidant within three weeks of the 
 defence, which, usually, simply contains joinder of issue, that 
 is, a traverse or denial of what is stated by the defendant. 
 If, however, the statement of defence contained a counter- 
 claim, then substantially the reply is, as to that, the plaintiff's 
 defence, and then for the purpose of joining issue another 
 pleading is required, and it is — 
 
 The rejoinder by defendant within four days of the reply. 
 
 No pleading after reply except joinder of issue is allowed 
 without special leave. 
 
 It must, however, be noticed that it is now provided that 
 a plaintiff may indorse on his writ a statement sufficient to 
 give notice of his claim, and may state that if the defendant 
 appears he intends to proceed to trial without pleadings. In 
 such a case, unless an order is made on the application of 
 the defendant, for pleadings to be delivered notwithstanding 
 this notice, the plaintiff may within ten days of appearance 
 give a twenty-one days notice of trial without pleadings, and 
 the action is at once set down for trial. 
 
 Assuming, however, that there are pleadings, as soon as 
 issue is joined the pleadings are then said to be closed, and 
 the next step is for the plaintiff to give notice of trial, which 
 he must do vidthin six weeks from the close of the pleadings. 
 The notice is a ten days' one, unless the defendant is under 
 terms to take " short notice," and it is then four days. The 
 cause must then be entered for trial. 
 
 With regard to the pleadings, certain points are to be 
 specially observed. They are to be as brief as possible, 
 divided into paragraphs, numbered consecutively, each para- 
 graph relating, as far as may be, to a distinct subject matter; a 
 mere general denial is not sufficient, but every matter specifi- 
 
PROCEDURE AND EVIDENCE, 9 
 
 cally alleged by a party, must be specifically met, otherwise it 
 will be deemed to be admitted. With regard, however, to an 
 action for recovery of land, if the defendant's defence is of a 
 legal nature, it is always sufficient for him simply to plead 
 that he is in possession, without dealing with every particular 
 allegation made by the plaintiff in his statement of claim. 
 The signature of counsel to a pleading is not necessary, but 
 where pleadings have been settled by counsel, they are to be 
 signed by him, and if not so settled, they are to be signed by 
 the solicitor for the party, or by the party himself if he sues 
 or defends in person. The plaintiff, in his statement of 
 claim, may state where the action is to be tried, and if he 
 states no place, it is tried in Middlesex, but this is subject to 
 the defendant's right to take out a summons to change the 
 place of the trial, and he may obtain an order if he can show 
 that he cannot obtain a fair trial in the particular place by 
 reason of local prejudice, or that it is more convenient and a 
 saving of expense to have it elsewhere. 
 
 If the defendant fails to put in a defence, judgment may 
 be signed against him in just the same way as if he had not 
 appeared. 
 
 Taking it, however, that a defence is put in, and issue 
 joined, the next thing is, as already mentioned, to proceed to 
 the trial of the action, and notice of trial is given as already 
 mentioned. In cases of slander, libel, false imprisonment, 
 malicious prosecution, seduction, and breach of promise of 
 marriage, the plaintiff may give notice of trial before a judge 
 and jury, and if he gives notice of trial before a judge alone, 
 the defendant may, within four days, give notice requiring a 
 jury ; but in all other cases if a jury is desired, a summons 
 to have the case tried by a jury must be taken out within 
 ten days of service of notice of trial. Notice of trial having 
 been given, and the cause duly entered for trial, the parties 
 then prepare for trial by issuing and serving all necessarj'- 
 subpoenas, preparing their briefs, Szc, and ultimately the 
 
10 THE STrDENT's GUIDE TO 
 
 cause comes on to be heard, when verdict is given, followed 
 by the judgment of the Court. 
 
 The judgment may be enforced in various different w^ays, 
 e.g., by fieri facias, for the purpose of seizing and selling 
 the debtor's goods, elegit for the purpose of seizing his 
 lands, or by a garnishee order, w^hich is an order obtained 
 against some third person v^ho owes money to the judgment 
 debtor, commanding him to pay the same to the judgment 
 creditor instead, so as to satisfy his claim. 
 
 Thus then the action is brought to a close, but there are 
 a few special matters to mention. 
 
 Sometimes, instead of delivering the ordinary pleading as 
 to facts, the plaintiff or defendant desires to dispute the suffi- 
 ciency in law of the pleading of his opponent. Formerly in 
 such a case he would have delivered a demurrer, but now he 
 puts in his pleading in the ordinary manner, raising therein 
 the point of law, which may either be determined at the trial, 
 or be ordered to be disposed of before or after the trial. 
 
 Interrogatories are a set of questions delivered by one party 
 to the other, and which are required to be answered on oath 
 within ten days. In all cases an order must be obtained for 
 their delivery. Discovery of documents may also be obtained 
 by either party to an action by applying by summons without 
 filing any affidavit in support thereof, asking for an order for 
 his opponent to make an affidavit as to what documents are 
 or have been in his possession, custody, or power, relating to 
 the matters in question in the action. Before delivery of any 
 interrogatories, or before the hearing of any summons for 
 discovery of documents, it is necessary to pay into Court, as 
 security for costs, the sum of £5, and with regard to 
 interrogatories, if their length exceeds 5 folios, the further 
 sum of 10s. for every additional folio. 
 
 Numerous other interlocutory steps may be necessary to 
 be taken in any particular action according to circumstances, 
 e.g., summons for time to deliver any pleading, summons for 
 
PROCEDURE AND EVIDENCE. H 
 
 further particulars of the plaintiff's claim or the defendant's 
 counter-claim, amendment of pleadings, payment of money 
 into Court, &c., &c. 
 
 II.— TEST QUESTIONS ON PAETS I., 11., AND IV., 
 OF INDEEMAUE'S MANUAL OF PEACTICE. 
 6th Edition. 
 
 {The figures at the end of each question signify the pages 
 where the ansioers may he found.) 
 
 Part I. 
 
 1. Give a short explanation of the origin of the former 
 Courts of Common Law and Chancery, together with some 
 account of the proceedings in such Courts. (1-8.) 
 
 2. How is the High Court of Justice now constituted 
 under the Judicature Acts, and what jurisdiction is vested 
 therein ? (10-12.) 
 
 3. State some of the matters which now, under the 
 Judicature Acts, are specially assigned to the Chancery 
 Division. (13, 14.) 
 
 4. State shortly how the Court of Appeal is now con- 
 stituted, and what jurisdiction is vested therein. (18, 19.) 
 
 5. Enumerate some of the matters in which the Masters 
 have no jurisdiction. (21, note s.) 
 
 6. What are the functions of the chief clerks of the 
 Chancery Division? Mention any matters in which they 
 have no jurisdiction. (23, 24.) 
 
 7. How did the House of Lords acquire its jurisdiction 
 as a Court of Appeal, and how is it now constituted as 
 such a Court under the Appellate Jurisdiction Act 1876 ? 
 (27, 28.) 
 
12 THE student's GUIDE TO 
 
 8. What is the consequence at the present day of non- 
 joinder or mis-joinder of plaintiffs or defendants in an 
 action? (30,31.) 
 
 9. When property is vested in trustees, executors, or 
 administrators, and an action is brought concerning the 
 same, is it necessary to make the beneficiaries parties, or are 
 they sufficiently represented by such trustees, &c. ? (32.) 
 
 10. Explain shortly the practice of consolidation of 
 actions, and give two instances in which such consolidation 
 may take place. (32, 33.) 
 
 11. A sues B. B has a claim against A and X on a 
 joint contract. Can he counter-claim in the action in respect 
 of this claim? (33-35.) 
 
 12. What do you understand by third party procedure? 
 Detail shortly the practice. (34, 35.) i 
 
 13. If, in the course of an action, the plaintiff or 
 defendant dies, but the cause of action still continues, what 
 course should be taken by the surviving party ? If the 
 deceased has no personal representative, can the actioip 
 possibly be proceeded with ? (36, 37.) 
 
 14. Generally speaking, different causes of action ca 
 be united in the same "writ. What are the exceptions to 
 this rule? (38.) \ 
 
 15. How do the following persons respectively sue and 
 defend : — Infants, mamed women, persons of unsound mind, 
 and corporations ? (39, 40.) 
 
 16. How are actions comprising matters of a public 
 nature commenced ? (40.) 
 
 17. State shortly the practice as to suing i7i forma 
 pauperis. Where the plaintiff sues in forma pauperis and 
 succeeds, what costs is he entitled to ? (40, 41.) 
 
 18. In an action brought against a justice of the peace 
 or a constable in respect of anything done by him in the 
 exercise of his office, does any, and if so what, preliminary 
 have to be observed before commencing the action? (41.) 
 
PROCEDURE AND EVIDENCE. 13 
 
 Part II. 
 
 19. What indorsements does an ordinary writ of 
 summons contain ? Under what circmnstances may a writ 
 be specially indorsed, and what is the great advantage of a 
 special indorsement ? (42-45.) 
 
 20. How are writs served on the following parties 
 respectively : — Infants, lunatics, registered companies, and 
 partners? (46-49.) 
 
 21. In an action of ejectment the defendant cannot 
 be found, and the premises are vacant. Under these circum- 
 stances how may the writ be served '? (49.) 
 
 22. Under what circumstances may a writ be issued 
 against a defendant who is abroad out of the jurisdiction of 
 the Court ? (50-52, and see supplemental note.) 
 
 23. What is meant by a concurrent writ ? Give an 
 instance of an action in which a concurrent writ would 
 properly be issued. (53.) 
 
 24. Within what time must a defendant appear to a 
 writ of summons? What is the effect of a defendant 
 appearing, but omitting to give notice of appearance ? 
 (63-55.) 
 
 25. A makes a lease of premises to B. X, who contends 
 that the property belongs to him and not to A, brings an 
 action of ejectment against B. What is B's duty, and what 
 course may A take? (56.) 
 
 26. What is the consequence of a defendant not 
 appearing to a writ of summons? Distinguish in your 
 answer between a writ for a fixed liquidated amount, and a 
 writ to recover unliquidated damages. (59-62.) 
 
 27. A sues B, an infant, and duly serves the writ. B 
 does not appear. Can A sign judgment, and if not, what 
 course should he take ? (63.) 
 
 28. What is the object of a summons under Order XIV. ? 
 With regard to a summons under Order XIV., what course 
 may a Master now take, if he gives unconditional liberty 
 
14 THE student's GUIDE TO 
 
 to defend, with a view to the speedy trial of the action? 
 (63-67.) 
 
 29. Plaintiff sues in the High Court to recover £40, and 
 gets judgment for this amount on a summons under Order 
 XIV. What costs is he entitled to '? (65.) 
 
 30. If a defendant desires in the course of an action 
 to consent to judgment, how is such consent given (a) if 
 he has appeared by a solicitor, (6) if he has appeared in 
 person? (67.) 
 
 31. AVhat is the object of pleadings in an action ? Can 
 an action ever proceed to trial without pleadings ? If so, 
 detail the course of procedure. (68, 69.) 
 
 32. A defendant is sued for a debt. Is it sufficient for 
 him to plead " never indebted " ? (70, 71, 76.) 
 
 33. Within what time must a Statement of Claim be 
 delivered in an action ? If not so delivered, what course may 
 a defendant take ? (73-75.) 
 
 34. How is it determined at what place an action is to 
 be tried ? Has the defendant any voice in the matter, or is 
 the place of trial entirely in the choice of the plaintiff? (75, 
 111.) 
 
 35. In an action brought to recover a debt, is it open to 
 the defendant to set off or counter-claim for unliquidated 
 damages in (a) contract (6) tort ? (78.) 
 
 36. Within what time must a Statement of Defence be 
 put in ? What is the consequence of the defendant omitting 
 to put in a Statement of Defence ? Distinguish in your 
 answer between actions for fixed liquidated amounts, and for 
 unliquidated damages respectively. (79, 80.) 
 
 37. What do you understand by " joinder of issue," and 
 in what pleading is joinder of issue usually contained ? (81.) 
 
 38. Within what time must a Statement of Reply be put 
 in, and what is the consequence of a Keply not being put in ? 
 Hereon, what difference would you notice if the defendant's 
 defence contained ;i counter-claim? (81, 82.) 
 
PEOCEDURE AND EVIDENCE. 15 
 
 39. What was a demurrer ? What course is now taken 
 instead of demurring ? (82, 83.) 
 
 40. Can a defence which did not exist when the writ 
 was issued, but which has only arisen since the action was 
 brought, be set up ? (84, 85.) 
 
 41. Under what circumstances may a pleading be 
 amended without leave '? Wlien an amendment is made 
 without leave, what is the position of the other party with 
 regard to his pleading ? (85-87.) 
 
 42. At what stage of an action may a notice be given to 
 admit facts, and within what time should admissions be 
 made '? "What is the consequence of refusing or neglecting 
 to admit facts under such a notice ? (87.) 
 
 43. In an action of ejectment the defendant simply 
 pleads that he is in possession ; what matters is he entitled 
 to go into at the trial under such a defence ? (88.) 
 
 44. How are interlocutory applications in the course of 
 an action made ? Can a notice of motion be served upon a 
 defendant before he has appeared to the writ ? (89, 90.) 
 
 45. On the hearing of a summons in chambers, is either 
 party entitled to attend by counsel, and if so, what is the 
 position with regard to the extra costs thus occasioned '? 
 (91.) 
 
 46. What do you understand by a summons for direc- 
 tions, and what are its advantages ? Can such a summons 
 be taken out in the Chancery Division ? (92, 93.) 
 
 47. Enumerate any orders which need not be formally 
 drawn up. (93, 94.) 
 
 48. In what actions, and at what stage, may a defendant 
 pay money into Court? If he has so paid money into 
 Court, when is the plaintiff entitled to take it out ? 
 Distinguish in your answer between cases in which the 
 defendant admits his liability, and cases in which he denies 
 his Hability. (95-99.) 
 
 49. On the trial of an action in which money has been 
 
16 THE student's GUIDE TO 
 
 paid into Court, ought the jury to be informed that such 
 a payment has been made or not? (99.) 
 
 50. When may interrogatories be administered in an 
 action ; and within what time, and how, must they be 
 answered? (100-102.) 
 
 51. How do you obtain discovery of documents in an 
 action? Sketch the outHne of an ordinary affidavit of 
 documents. (102, 296.) 
 
 52. How do you obtain inspection of documents ? If 
 certain of the documents consist of business books, is the 
 party always obHged to produce the original books for inspec- 
 tion, or what course may he take instead? (104-106.) 
 
 53. How is an order for discovery served, and what are 
 the consequences of disobedience to such an order ? (107.) 
 
 54. With regard to discovery generally, what provision 
 • has been made for securing the costs of the party against 
 
 whom discovery is obtained ? (107-109.) 
 
 55. Under what circumstances may an action of contract 
 brought in the High Court be transferred to the County 
 Court, and at what stage of the action should an application 
 for such transfer be made ? (110, 111.) 
 
 56. Mention three cases in which the defendant may 
 properly apply to dismiss the action for want of prosecution. 
 (112.) 
 
 57. Can the plaintiff under any and what circumstances 
 obtain an order for the arrest of the defendant during the 
 action ? (112, 113.) 
 
 58. Under what circumstances may an action, brought 
 in the District Registry, be removed to London, and state 
 how the removal is effected ? Can an action ever be removed 
 from London to a District Registry ? (114, 115.) 
 
 59. Mention the chief cases in which the plaintiff may 
 be ordered to give security for the costs of an action. Is it 
 any ground for obtaining security that the plaintiff is residing 
 in Scotland or Ireland? (115-118.) 
 
PEOCEDURB AND EVIDENCE. 17 
 
 60. Explain what is meant by process of interpleader. 
 What is the nature of the affidavit which must be filed in 
 support of an interpleader summons? (118, 119.) 
 
 61. Detail shortly the procedure on an interpleader 
 summons. Is there any appeal in interpleader matters ? 
 (120, 121.) 
 
 62. What is a special case, and under what circum- 
 stances may this mode of procedure be properly resorted to '? 
 (121, 122.) 
 
 63. Explain the following expressions : — " Costs, costs 
 in the cause," and "plaintiff's costs in any event." (123.) 
 
 64. How and within what time may appeals be brought 
 respectively from a decision of a Master, a District Kegistrar, 
 and a Judge sitting in chambers ? (123, 124.) 
 
 65. A obtains an order for judgment against B on a 
 summons under Order XIV., but neglects to sign judgment, 
 and lets more than a year go by without doing so, but now 
 wishes to sign judgment. How must he proceed ? (124.) 
 
 66. What do you understand by a notice of discon- 
 tinuance ? When a notice of discontinuance has been given, 
 can another action be brought in respect of the same subject 
 matter? (124, 125.) 
 
 67. An action is brought for a penalty under a statute. 
 The defendant proposes terms, and the plaintiff desires to 
 compromise. Can he do so? (126.) 
 
 68. When should notice of trial be given in an action ? 
 What is the length of such notice, and what is the position 
 with regard to a jury? (128, 129.) 
 
 69. Within what time must a cause be entered for 
 trial ? Can a notice of trial once given be counter-manded ? 
 (130.) 
 
 70. What is the object of giving (a) a notice to produce, 
 (b) a notice to inspect and admit, before going to trial ? 
 (131, 132.) 
 
 71. What are the rules with regard to the employment 
 
 c 
 
18 THE student's GUIDE TO 
 
 of more than one counsel at the trial of an action, and with 
 regard to the pajmient of refreshers to counsel? (133, 134.) 
 
 72. ^\^iat is the difference between a subpoena ad testi- 
 ficandum and a suhpama duces tecum ? How do you secure 
 the attendance (a) of a witness residing in Scotland, (6) of a 
 witness residing in France, (c) of a witness who is in custody? 
 (135, 136.) 
 
 73. What do you understand by a summons to take 
 evidence de bene esse'? (136, 137.) 
 
 74. Give a short outline of the procedure at the trial of 
 an action. Who has the right to begin at the trial ? (138, 
 139.) 
 
 75. What is the difference between a general and a 
 special verdict ? (140.) 
 
 76. A trial is postponed on the terms that the appHcant 
 pays the " costs of the day." Explain what is meant by this 
 expression. (140.) 
 
 77. What is meant {a) by withdrawing a juror, (6) by 
 the plaintiff being non-suited ? Explain the position as to 
 costs in both cases. (140, 141.) 
 
 78. The plaintiff in an action is an infant suing by his 
 next friend, and a verdict is recovered. To whom would the 
 amount be paid by the defendant ? (144.) 
 
 79. Mention some of the chief grounds for moving for a 
 new trial. To what tribunal is the motion made, and within 
 what time? (145-147.) 
 
 80. Under what circumstances is a plaintiff able to issue 
 execution upon a judgment without leave ? Is there any 
 limit_'as to the time within which leave can be granted? 
 How long does a writ of execution remain in force? 
 (148, 149.) 
 
 81. Mention the different ways in which judgments 
 may be enforced. Explain the difference between a writ of 
 elegit and equitable execution. (149-161.) 
 
 82. State shortly the practice to get equitable execution. 
 
PROCEDURE AND EVIDENCE. 19 
 
 and give the nature of the affidavit to be filed in support of 
 the appKcation. (154.) 
 
 83. What is a garnishee orderand hov\^ is it obtained '? 
 What is the nature of the affidavit which has to be filed in 
 support of the application for such an order? (156.) 
 
 84. A has a judgment against B, and he ascertains that 
 B is entitled to certain bank stock and railway shares. How 
 would he avail himself of this property towards satisfaction 
 of his judgment ? (158.) 
 
 85. A has judgment against X, who is a member of the 
 firm of Brown & Co. How can A avail himself of X's 
 interest in this firm towards the satisfaction of his judgment ? 
 (158.) 
 
 86. In what different ways may a judgment for the 
 recovery of property other than land or money be enforced ? 
 (159.J 
 
 87. An order or judgment directs a defendant to do a 
 certain thing, or to pay money, by a certain date. How 
 ought the order to be served, and what memorandum should 
 be endorsed thereon ? (159, 160.) 
 
 88. What do you understand by a judgment quando 
 accidermt, and how is such a judgment enforced? (163, 164.) 
 
 89. Under what circumstances may judgments of 
 inferior Courts be removed to the High Court for the 
 purposes of execution ? (164.) 
 
 90. State the general rule as to costs in an action in 
 the High Court ; distinguish between cases tried by a Judge 
 alone, and cases tried by a Judge and jury. (165, 166.) 
 
 91. Summarise the chief provisions of the County 
 Courts Act 1888, on the subject of costs in High Court 
 actions. (166, 167.) 
 
 92. A recovers in an action of debt in the High Court 
 £25 ; B recovers in an action for assault in the High Court 
 £5 ; C recovers in an action for libel in the High Court 40s. 
 Each action is tried before a judge and jury, and no special 
 
 c -2 
 
20 THE student's GUIDE TO 
 
 directions as to costs are given. What is the position, as 
 regards costs, in each case? (167, 168.) 
 
 93. A plaintiff sues in the High Court for £35 owing on 
 contract. The defendant defends, and also counter-claims 
 for £100. The plaintiff recovers the amount he sued for, 
 and also succeeds on the counter-claim. To what costs is he 
 entitled '? (168.) 
 
 94. Has the Court any jurisdiction, {a) to order an 
 entirely successful plaintiff to pay the defendant's costs, 
 (b) to order an entirely successful defendant to pay the 
 plaintiff's costs ? (169.) 
 
 95. "What notice of appointment to tax costs is required 
 to be given ? Under what circumstances may costs be taxed 
 on the higher scale ? What is meant by an " affidavit of 
 increase"? (170.) 
 
 96. Explain and illustrate the difference between 
 " solicitor and client " costs, and " party and party " costs ? 
 (171.) 
 
 97. Within what time must a client obtain an order to 
 tax his own solicitor's bill ? AVhat is the rule with regard 
 to the costs of the taxation ? (172, 173.) 
 
 98. State shortly the procedure to review a taxation of 
 costs. (174.) 
 
 99. What is meant by arbitration? What statute 
 governs the subject of arbitration generally? (176.) 
 
 100. Explain the two different ways in which, under 
 the Arbitration Act 1889, matters may be referred by the 
 Court. What is the rule with regard to the costs of referred 
 matters ? (177, 178.) 
 
 101. Where there has been a compulsory reference, 
 what appeal lies from the award, and to what tribunal? 
 (178.) 
 
 102. A and B are partners, and the partnership deed 
 contains the usual arbitration clause. Disputes having 
 arisen between them, A commences an action. Can B in 
 
PROCEDUEE AND EVIDENCE. 21 
 
 any, and if so, what way compel A to have the matter dis- 
 posed of by arbitration ? (178, 179.) 
 
 103. Define " submission to arbitration." To how many 
 arbitrators may a matter be submitted ? Within what times 
 must the arbitrators and their umpire respectively make 
 their award ? (179.) 
 
 104. How may the attendance of a witness be compelled 
 before an arbitrator? (180.) 
 
 105. If arbitrators who should appoint an umpire neglect 
 to do so, how may an umpire be appointed ? (180.) 
 
 106. How may points of law arising in the course of an 
 arbitration be determined by the Court ? (181.) 
 
 107. How may an arbitrator's award be enforced ? (181.) 
 
 Part IV. 
 
 108. Within what time must an appeal now be brought 
 to Her Majesty's Court of Appeal? What length of notice 
 of appeal must be given ? (269-270.) 
 
 109. Under what circumstances will an appellant be 
 ordered to give security for the costs of an appeal ? (271.) 
 
 110. The plaintiff in an action appeals and the defendant 
 also desires at the hearing to contend that the decision 
 should on a certain point be varied. Is it necessary for him 
 to bring a cross appeal, or what course must he take ? (272.) 
 
 111. How is the evidence in the Court below brought 
 before the Court of Appeal on the hearing of an appeal ? 
 Can the Court receive new evidence ? (272-273.) 
 
 112. What powers has the Court of Appeal as regards : 
 (a) amendment ; (b) inferences of fact ; (c) costs? (273.) 
 
 113. Before how many judges is an appeal heard? 
 What is the extent of the powers of one judge of the Court 
 of Appeal sitting alone ? (274, 275. ) 
 
 114. Does an appeal act as a stay of execution ? If an 
 appeal, in fact, delays execution, is interest allowed on the 
 amount which should have been paid ? (275.) 
 
22 THE student's guide to 
 
 115. To whom and in what manner is an appeal brought 
 from a decision of a judge sitting in chambers in the Chancery 
 Division ? (275.) 
 
 116. Enumerate some orders which are not subject to 
 appeal. (270.) 
 
 117. Can an action ever be maintained in the nature of 
 a Bill of Keview ? (276, 277.) 
 
 118. Give a short sketch of the proceedings by way of 
 appeal to the House of Lords. (278-280.) 
 
 119. To what tribunal are appeals made from an inferior 
 Court, as for instance a County Court, and within what time 
 must such appeals be brought ? What notice of appeal has 
 to be given ? (281-282.) 
 
 120. Does an appeal from a County Court operate as a 
 stay of execution ? Can the parties bind themselves by 
 agreement not to appeal ? (282.) 
 
 III.— DIGEST OF QUESTIONS AND ANSWERS. 
 1. — Peeliminary. 
 
 Q. Mention the principal matters for consideration before 
 commencing an action, giving an illustration in each case. 
 
 A. I should consider firstly whether there was a cause of 
 action, in other words whether there was an injuria, the 
 rule being damnum absque injuria will not sustain an action. 
 Then I should consider, even if there were a right of action, 
 whether it was of a substantial kind and worth suing for, 
 for although the rule is that injuria sine damno will sustain 
 an action, yet it is not usually worth while to bring an 
 action unless both injuria and damnum are combined, for 
 there is the risk of not recovering sufficient to entitle the 
 
PROCEDURE AND EVIDENCE. 23 
 
 plaintiff to his costs. An instance of the rule that damnum 
 absque injuria will not sustain an action is found in the 
 case of Chasemore V, Eichards (7 H. L. C, 349); and an 
 instance of the rule that injuria sine damno will sustain an 
 action is found in the case of Ashby v. White (Indermaur's 
 Common Law Cases, 27). See also hereon Indermaur's 
 Principles of Common Law, 3-5. Another important matter 
 for consideration before commencing the action is the parties 
 to sue and to be sued. (See Indermaur's Practice, 30, 31.) 
 
 Q. What is the effect of mis-joinder or non-joinder of 
 parties ? 
 
 A. Neither is now in any way fatal to the action. As to 
 non-joinder, parties may be joined by leave of the Court, but 
 if as plaintiffs their consent must be given. As to mis- 
 joinder, judgment may be given for or against such one or 
 more as may be found entitled or found liable without any 
 amendment, or the Court may order the names of any 
 parties improperly joined to be struck out. A defendant is, 
 however, entitled to any extra costs occasioned by the 
 plaintiff's mis-joinder. (Indermaur's Practice, 30, 31.) 
 
 Q. State the leading rule as to joining in one action 
 claims in respect of several causes of action — ivith reference 
 both to the nature of the claim and to the capacities of the 
 parties. 
 
 A. The general rule is that different causes of action may 
 be joined in one action, but if it appears to the Court 
 or a judge that they cannot be conveniently tried together 
 separate trials may be ordered. Except, however, by special 
 leave, an action for recovery of land cannot be joined with 
 any other cause of action, except mesne profits, arrears of 
 rent, or double value in respect of the premises, or damages 
 for the breach of any contract under which the premises are 
 held. Claims by a trustee in bankruptcy cannot be joined 
 with claims in any other capacity except by special leave, 
 and claims by or against executors or administrators, as 
 
24 THE student's guide to 
 
 such, may only be joined with personal claims when they 
 arise out of the estate. (Indermaur's Practice, 38.) 
 
 Q. Are there any, and if any, what limits to the juris- 
 diction of the High Court of Justice to entertain actions or 
 suits ? 
 
 A. The jurisdiction only extends to England and Wales 
 and the town of Berwick-on-Tweed ; but even as regards 
 causes of action arising abroad, the Court may, acting 171 
 personam, take cognizance of them if the parties are here. 
 (See Mostyn v. Fabrigas, Indermaur's Common Law Cases, 
 54 ; Penn v. Baltimore, Indermaur's Conveyancing and 
 Equity Cases, 141.) In some cases also the Court may give 
 leave to sue here though the defendant is abroad, under 
 Order XI., rule 1. The Court has, however, no jurisdiction 
 in an action for trespass to lands situate abroad (British 
 South Africa Co. v. Compania di Mo9ambique, 63 L. J,, 
 Q.B., 70; 69 L. T., 604.) No action under the Employers 
 Liability Act, or upon a County Court judgment, can be com- 
 menced in the High Court. The Court has no jurisdiction 
 in actions against independent foreign rulers (Mighell v. 
 Sultan of Johore, Laio Stnde?its' Journal, January, 1894, p. 6). 
 
 Q. In what cases is service out of the jurisdiction of a writ 
 of summons allowed by a judge ? 
 
 A. Under Order XI., when the action is in respect of 
 land within the jurisdiction, or defendant ordinarily resides 
 wdthin the jurisdiction, or the action is to administer the 
 estate of a person who died domiciled in the jurisdiction, or is 
 for an injunction as to anything within the jurisdiction, or 
 the action is for breach within the jurisdiction of any contract 
 (wherever made) which ought to be performed within the 
 jurisdiction and the defendant is not domiciled or ordinarily 
 resident in Scotland or Ireland. If the defendant is not a 
 British subject, and is in a foreign territory, he is served 
 with notice of the writ ; if a British subject, with the writ. 
 Leave to issue a writ against a defendant out of the jurisdic- 
 
PEOCEDUEE AND EVIDENCE. 25 
 
 tion can only be given by a Judge in person. (Indermaur's 
 Practice, 50, 51.) 
 
 Q. What ivere the princijoal changes in procedure intra- 
 duced by the Judicature Acts and Rules ? 
 
 A. The idea was to fuse the former systems of law and 
 equity. We find the old declaration, plea, and replication 
 formerly existing at law, and the old bill of complaint and 
 other steps formerly existing in the Court of Chancery 
 abolished, and in substitution therefor we find a uniform 
 procedure of statement of claim, statement of defence, and 
 statement of reply. The pleadings are now divided into 
 paragraphs numbered consecutively, and each paragraph, so 
 far as can be, must deal with distinct matters, and pleadings 
 must be printed if they exceed ten folios. Provisions have 
 specially been made aiming at the brevity of pleadings. 
 General allegations are not sufficient, but each matter alleged 
 by the opponent must be met specifically, or will be taken 
 to be lomitted. Many other matters might be noticed, but 
 the foregoing points may be fairly mentioned as the chief 
 changes. 
 
 2. — Commencement of Action, Appeaeance, Judgment 
 ON Default of Appearance and undee Oedee XIV. 
 
 Q. What is a rvrit of summons, and ivhat are the different 
 kinds of writ of summons, and luhat are the different modes 
 of service ? 
 
 A. A writ of summons is the mode by which an action in 
 the High Court is commenced ; it is dated on the day of its 
 issue and indorsed with the nature of the claim made or 
 relief required. It specifies the Division to which it is 
 assigned, is addressed to the defendant, and commands him 
 to appear within eight days after service. The different 
 kinds of writ of summons are a writ with general indorse- 
 
26 THE student's guide to 
 
 ment, a specially indorsed writ, a writ for service out of the 
 jurisdiction, and concurrent writs. The usual mode of 
 service is by delivering a copy to defendant and producing 
 the original, or by his solicitor indorsing on the writ 
 acceptance of service and undertaking to appear. In cases 
 of vacant possession, if personal service cannot be effected 
 the writ is served by pasting a copy on the door or on a tree ; 
 and in any other case in which personal service cannot be 
 effected, service may be made in the special way allowed by 
 an order for substituted service. In the case of an infant 
 defendant, the writ is served on the guardian or person with 
 whom he resides. Where partners are sued in their partner- 
 ship name, the writ is served on any partner or on the person 
 in control at the principal place of business, in which case 
 notice also must be served that the writ is delivered to him 
 in that capacity. 
 
 Q. State shortly the 'procedure in an action from issue of 
 writ until judgment. 
 
 A. Writ issued and served; appearance vsdthin eight 
 days ; statement of claim within six weeks of appearance, or 
 v^dthin five weeks if demanded ; statement of defence within 
 ten days ; statement of reply within 21 days. If a counter- 
 claim there will be a rejoinder within four days of reply. 
 Notice of trial within six weeks of the close of the pleadings. 
 Entry for trial. Trial. Verdict and judgment. There may 
 be various interlocutory steps according to circumstances, 
 e.g., summonses for time to take any steps, delivery of 
 interrogatories, or obtaining discovery of documents. In 
 some cases after defendant's appearance a speedy judgment 
 may be obtained under the provisions of Order XIV. 
 (See post, p. 31.) 
 
 Q. Describe the course of procedure in an action for 
 recovery of land, pointing out the cltanges in the modern 
 practice. 
 
 A. The procedure is generally the same as in ordinary 
 
PKOCEDUEE AND P:VIDENCE. 27 
 
 actions. The old form of action rested on a fiction in which 
 the claimant was supposed to have demised the land to a 
 tenant who had been ejected by the defendant. This fiction 
 was swept away by the Common Law Procedure Act 1852, 
 but the action of ejectment was still placed upon a footing 
 peculiar to itself. Under the Judicature practice the term 
 " ejectment " is still retained as the short title for an action 
 for the recovery of land, but it is now generally governed by 
 the ordinary rules applicable to all actions. It is, however, 
 ordinarily sufficient in a statement of defence in such an 
 action for the defendant to simply plead that he is in 
 possession. (QeejJost, pp. 33, 34.) 
 
 Q. How may infants and married loomen sue and he 
 sued ? 
 
 A. An infant sues by his next friend, and defends by his 
 guardian ad litem. A married woman may now sue and be 
 sued as provided by the Married Women's Property Act 
 1882— that is to say, as d^feme sole. (Indermaur's Practice, 
 38, 39.) 
 
 Q. State the rules noiu in force for bringing and prose- 
 cuting an action against a firm consisting of several far^tners. 
 A. They may be sued in the firm's name without specify- 
 ing the individuals ; and the writ may be served on any one 
 of the partners, or on the person managing or having control 
 at the principal place of business, but in this latter case a 
 notice must also be served on such person stating that the 
 writ is served on him in that capacity. The partners 
 should then appear individually, but the proceedings con- 
 tinue in the firm's name. When judgment is obtained, 
 execution may be issued against any of the direct partner- 
 ship property, or against any person who has admitted that 
 he is or has been adjudged a partner, or against any person 
 who has been served as a partner and has failed to appear, 
 and if the judgment creditor claims to be entitled to issue 
 execution against any other person, as being a member of 
 
28 THE student's guide to 
 
 the firm, he may apply for leave to do so. (Indermaur's 
 Practice, 47, 56, 162.) 
 
 Q. What course is open to the plaintiff ivhen the defendant 
 makes default in entering an appearance ? 
 
 A. The plaintiff can sign judgment. If the action is 
 for recovery of a fixed liquidated amount, or to recover land, 
 the judgment will be final ; but if for unliquidated damages 
 or detention of goods it will be interlocutory, and a writ of 
 inquiry will then be issued to assess the damages. (Inder- 
 maur's Practice, 59, 61.) 
 
 Q. Have the rules under the Judicature Acts changed the 
 previous practice as to proceeding luith an action after death 
 or hankrupjtcy of a party pending the action ? 
 
 A. Yes, whereas, formerly, the action would have abated, 
 now the action does not abate, but an order may, if necessary, 
 be made ex parte for the personal representative, trustee, or 
 other successor in interest (if any) to be made a party to the 
 action, or to be served with notice thereof, and any such 
 order may be made as may be just for the disposal of the 
 action. The new party must enter an appearance as if 
 served with a writ, but may apply within twelve days of 
 service to discharge or vary any such order. (Indermaur's 
 Practice, 36, 37.) 
 
 Q. Explain the terms " special indorsement^^' '• demurrer,^'' 
 and " counter-claim.'' 
 
 A. Special indorsement consists of a statement of the 
 plaintiff's claim with dates and items, constituting, in fact, 
 the statement of claim in the action. The cases in which a 
 writ may be specially indorsed are enumerated in Order III., 
 rule 6, and the great advantage of a special indorsement is, 
 that on the appearance of a defendant a summons for judg- 
 ment under Order XIV. may be taken out. (Indermaur's 
 Practice, 45.) A demurrer was the former mode of objecting 
 to the sufficiency of an opponent's pleading in point of law. 
 Now, no formal demurrer is allowed, but any such objection 
 
PKOCEDURE AND EVIDENCE. 29 
 
 is taken in the party's pleading. (16., 82.) Counter-claim 
 signifies a claim set up in an action by a defendant against the 
 plaintiff by means of which he may recover judgment against 
 the plaintiff instead of bringing a cross action. (lb., 78.) 
 
 Q. Does a set-off under the Judicature Acts differ in any 
 respect from a counter-claini ? 
 
 A. The terms are generally used as synonymous, but 
 strictly set-off is a defence to the plaintiff's claim of such a 
 nature that it might under the Statutes of Set-off have been set 
 up prior to the Judicature practice, whilst a counter-claim 
 may go beyond this, forming the subject of a claim which 
 could formerly not have been setup, but for which a separate 
 action must have been brought. A set-off strictly is only a 
 defence, but a counter-claim goes beyond that, so that a 
 defendant may recover judgment against the plaintiff. 
 (Indermaur's Practice, 78.) There is also a distinction as 
 to costs, for in cases coming within the County Courts Act 
 1888, if by reason of set-off the plaintiff only recovers a 
 balance under the amounts named in that Act (see post, p. 52), 
 the plaintiff will not get his costs without a certificate or 
 order, whilst if the defendant's claim is a counter-claim as 
 opposed to a set-off, the plaintiff will get his full costs, and 
 the defendant any costs in respect of the counter-claim. 
 (Indermaur's Practice, 168.) 
 
 Q. Explain the necessity for and meaning of '■' reneiual of 
 a ivrit of summons,''^ and ^'■concurrent writs.'' Is there at 
 any stage of an action before judgment, any mode by tvhich a 
 defendant may be arrested ? 
 
 A. If a writ is not served within twelve months of its 
 issue, the plaintiff, in order to prevent the operation of the 
 Statutes of Limitation, or for other purposes, may, before 
 tlie twelve months expire, renew the writ on proof that 
 reasonable efforts have been made to effect service, or for 
 other good reason, for six months, and so on from time to 
 time ; it is renewed by being resealed (Indermaur's Practice, 
 
30 THE student's GUIDE TO 
 
 52). Concurrent lorits are simply duplicate originals issued 
 to expedite service {Ih., 53). Yes, under the Debtors Act 
 1869, where the plaintiff proves at any time before final 
 judgment, on oath, to the satisfaction of a Judge, that he has 
 a good cause of action for £50 at least, and there is reason 
 to think the defendant is about to abscond, and (except in 
 actions for penalties not arising out of contract) that his 
 absence will materially prejudice the plaintiff in prosecuting 
 his action, defendant may be imprisoned for not exceeding 
 six months, unless and until he sooner gives the prescribed 
 security. (Indermaur's Practice, 112, 113.) 
 
 Q. In luhat cases and by luhat process can a defendant 
 obtain in an action relief against a third person not a party 
 to the action ? 
 
 A. This question embraces the subject of third party 
 procedure. A defendant can thus obtain rehef where he 
 claims contribution or indemnity upon a contract (express or 
 implied), or upon equitable xmnciples, against a person not a 
 party to the action. The process is for the defendant within 
 the time for delivering his defence, by leave of a Judge, to 
 issue and serve a third party notice. The third party may 
 appear to it within eight days, and if he does appear, direc- 
 tions are given as to mode of trial. If he does not appear, 
 the defendant may let judgment go, and on satisfying it, enter 
 judgment against the third party for the contribution or in- 
 demnity claimed by the notice. (Indermaur's Practice, 34-36.) 
 Q. In tvhat cases may a ivrit of summons be specially 
 indorsed, and what are the advantages of such indorsement ? 
 
 A. The writ may be specially indorsed, where the 
 plaintiff is suing for a liquidated demand in money, arising 
 (a) upon a contract expressed or implied ; or {h) on a bond 
 or contract under seal ; or (c) on a statute ; or {d) on a 
 guarantee ; or (e) on a trust ; and also (/) in an action for 
 recovery of land (with or without a claim for mesne profits) 
 by a landlord against his tenant whose term has expired or 
 
PROCEDURE AND EVIDENCE. 31 
 
 been duly determined by notice to quit. The advantages of 
 such indorsement are : — (1) That if the defendant appears, 
 the plaintiff may apply for leave to sign judgment, notwith- 
 standing the appearance, under Order XIV. ; and (2) no 
 further statement of claim is required, or indeed allowed to 
 be delivered, but the indorsement on the writ is to be 
 deemed sufficient. (Indermaur's Practice, 44, 45.) 
 
 Q. Describe the 'procedure under Order XIV., explaining 
 in what cases it is applicable. 
 
 A. An affidavit is made verifying the cause of action, and 
 that defendant has no defence, and thereupon a summons is 
 issued to show cause why judgment should not be signed, 
 notwithstanding appearance. The summons must be served 
 four clear days before the return day, and with it a copy of 
 the affidavit, and of any exhibit thereto. If then the 
 defendant does not satisfy the Master that he has a prima 
 facie ground of defence, an order is made for judgment. It 
 is only applicable to cases in which the writ has been 
 specially indorsed under Order III., rule 6. It has also 
 been nov/ provided by the Eules of November, 1893, that 
 where on a summons under Order XIV. leave is given to 
 defend, the action may, if the Judge or Master is of opinion 
 that no prolonged trial will be necessary, be ordered to be 
 placed in a special list for trial so as to come on to be heard 
 forthwith without any pleadings. (Indermaur's Practice, 
 64-67.) 
 
 Q. What judgments by default is a plaintiff entitled to 
 sign in the folloiving cases respectively by reason of the non- 
 appearance of a defendant: — (1) Writ indorsed for £100, 
 money lent. (2) Writ with a similar indorsement, but 
 dates and items also being given. (3) Writ indorsed ivith a 
 general claim for damages. (4) Wq'H indorsed with a claim 
 for recovery of land ? 
 
 A. (1 and 2) Final judgment, it is of no consequence 
 whether the writ is specially indorsed or not as the action is 
 
32 THE student's guide to 
 
 to recover a fixed liquidated amount. (3) Interlocutory 
 judgment, that is simply that the plaintiff do recover damages. 
 A writ of inquiry must then be issued for the assessment 
 of the damages with a view to signing final judgment. 
 (4) Judgment for recovery of the land. (Indermaur's 
 Practice, 59-62.) 
 
 Q. A defendant in an action for damages for breach of 
 contract has no real defence, but desires to put off the day of 
 payment as long as possible. At what stage can the plaintiff 
 obtain judgment ? 
 
 A. The plaintiff can here, if the defendant does every- 
 thing to delay him, only obtain judgment by going to trial, 
 for the summary process of Order XIV. is not applicable to 
 such a case. 
 
 Q. Under %vhat circumstances can a plaintiff obtain 
 judgment against a defendant ivithout trial ? 
 
 A. (1) Where the defendant fails to appear to the writ of 
 summons. (2) On an application for judgment on a specially 
 indorsed writ by a summons under Order XIV. (3) Where 
 the defendant, though he has appeared, fails to deliver a 
 statement of defence. (4) The plaintiff may apply for an 
 order for such judgment as he may be entitled to at any 
 stage of the proceedings on admissions in the pleadings. 
 (Indermaur's Practice, 59, 65, 79, 87.) 
 
 Q. Explain the nature of the principal pleadings in an 
 action^ stating the limits of the time within which they must 
 re&pectively be delivered andj the consequences of non-delivery 
 in each case. 
 
 A. They consist now of plain statements on the part of 
 plaintiff and defendant, being divided into paragraphs 
 numbered consecutively, and each paragraph relating as far 
 as may be to a distinct subject matter, and every allegation 
 must be specifically met, a mere general denial not being 
 sufficient. The statement of claim by the plaintiff must be 
 delivered within six weeks from appearance, or, if defendant 
 
PROCEDURE AND EVIDENCE. 33 
 
 demands a statement of claim, then within five weeks of 
 such demand. Statement of defence by defendant within ten 
 days of the statement of claim. Statement of reply within 
 21 days of defence. If the reply does not contain joinder of 
 issue, a rejoinder is put in within four days of reply. If state- 
 ment of claim not duly delivered, defendant may apply to 
 dismiss the action for want of prosecution. If defence not 
 duly put in, plaintiff may sign judgment, which is final or 
 interlocutory, according to circumstances. If defence con- 
 tains a counter-claim, the consequence of omission to put in 
 a reply containing defence thereto, is to enable the defendant 
 to move for judgment on his counter-claim. The consequence 
 of not joining issue either in reply or rejoinder, as the case 
 may be, is that, at the end of the proper time, the matters 
 are deemed put in issue. (Indermaur's Practice, Part II., 
 chap. 3.) 
 
 Q. Mention the chief rules of 'pleading under Order 
 XIX. 
 
 A. Order XIX. deals with pleadings generally, and men- 
 tions the different pleadings to be delivered, and goes into 
 various matters in connection with pleadings in detail. 
 Pleadings are to be as brief as possible, divided into separate 
 paragraphs numbered consecutively, and only material facts 
 are to be stated, and not evidence that is relied on. Dates, 
 sums and numbers are to be expressed in figures. Signature 
 of counsel is not necessary. Pleadings are to be printed 
 if they exceed ten folios. All allegations not specifically 
 denied are to be taken to be admitted. Matters presumed 
 by law in a party's favour need not be alleged. Provisions 
 are made for striking out any pleading which may be un- 
 necessary or scandalous. (Indermaur's Practice, 68-73.) 
 
 Q. In an action of Eject'inent is it necessary that the 
 defendant should specially plead in detail his title, or ivhat is 
 a sufficient plea upon his part ? 
 
 A. No, it is not ordinarily necessary, it being provided 
 
 D 
 
34 THE student's guide to 
 
 that all defences may be raised by a defendant pleading in 
 his defence that he is in possession. If, however, the 
 defendant's defence consists entirely of equitable matter, 
 then he must plead such matter specifically. Thus, if the 
 plaintiff has orally agi'eed to sell land to the defendant and 
 then sues to eject him, here the defendant, relying on the 
 equitable doctrine of part performance, must plead that matter 
 specifically. (Indermaur's Practice, 88.) 
 
 Q. In an action of ejectment by landlord against tenant^ 
 can the defendant^ tinder any and what circumstances, 
 dispute the title of the plaintiff to the land in question f 
 
 A. The general rule is that a tenant shall not be allowed 
 to dispute his landlord's title, i.e.^ the tenant cannot dispute 
 the original right of the person through whom he was let 
 into possession ; but the tenant may show that the landlord's 
 title has ceased, or been determined, or parted with. And if 
 the tenant was the true owner though out of possession, and 
 he obtained possession through any defective title (except a 
 lease by deed), his possession is by law remitted back to his 
 rightful title and there is no estoppel. And the tenant 
 is of course entitled to set up as a defence that on the true 
 construction of the demise he himself and not his landlord 
 was entitled to possession at the date specified in the claim. 
 (Broom's Commentaries, 837.) 
 
 Q. What are the s]jecial rides of pleading in cases 
 where executors sue or are sued ? How far is an executor 
 liable for causes of action which have accrued against his 
 testolor, and mention any statutes which have affected such 
 liability ? 
 
 A. There are no special rules beyond this — that claims 
 by or against an executor, or administrator, as such, can 
 only be joined with claims by or against him personally, 
 when the personal claims arise with reference to the estate 
 which he represents ; and that the beneficiaries need not be 
 made parties. (Indermaur's Practice, 38.) TLcy are liable 
 
PROCEDURE AND EVIDENCE. 35 
 
 for his breaches of contracts, but not, at Common Law, for 
 his torts. But they can be sued for his torts to the real or 
 personal property of another committed within six months 
 before his death, provided the action is commenced within 
 six months after they take up the administration (3 & 4 
 Will. 4, c. 42, sec. 2); and for his torts causing the death of 
 another under 9 & 10 Vict., c. 93. 
 
 Q. What are the pi'lnclpal rules tuith regard to the amend- 
 ment of pleadings at the instance (1) of the party pleading ; 
 (2) of the opposing party ? 
 
 A. (1) Very full powers of amendment exist, and the 
 Court or a Judge has power at any stage to allow an amend- 
 ment. In addition, the plaintiff may once, at anytime before 
 the expiration of his time to reply, or where no defence has 
 been delivered within four weeks from the appearance of the 
 defendant who last appeared, amend his statement of claim 
 without leave. And a defendant, who has in his defence 
 pleaded a set-off or counter-claim, may amend it before the 
 expiration of the time for pleading to the reply, or before 
 pleading thereto ; or if no reply, then before the expiration 
 of twenty-eight days from the filing of the defence. (2) 
 The Court or a Judge has full power at any stage of the 
 proceedings to order any matter to be struck out which is 
 scandalous, or tends to embarrass or delay the fair trial of 
 the action, and to make all amendments necessary for the 
 purpose of determining the real question in controversy 
 between the parties. (Indermaur's Practice, 85, 86.) 
 
 Q. Where a plaintiff amends his statement of claim with- 
 out leave, what are the rules ivith regayxl to the defendant 
 pleading to the amended statement of claim ? 
 
 A. The defendant should plead to the amended pleading, 
 or amend his pleading, within the balance of the time he 
 then has to plead to the original pleading, or within eight 
 days from the delivery of the amended pleading, whichever 
 may last expire. And if the defendant has already pleaded 
 
 D 2 
 
36 THE student's guide to 
 
 before the delivery of the amended pleading, and does not 
 plead again or amend within the time just mentioned, he is 
 to be deemed to rely on his original pleading in answer to 
 such amended pleading. (Indermaur's Practice, 86, 87.) 
 
 Q. Explain the defences of tender and fayment into Court, 
 and their effect upon costs. 
 
 A. Tender is a defence set up in an action to the effect 
 that prior to action the party offered the other a certain sum. 
 A tender must be absolute and unconditional, and the person 
 tendering must have been always ready thereafter to pay the 
 money, though the tender was refused. When after a tender 
 the party is sued, he pleads the tender, and pays the amount 
 he tendered into Court, and any plea of tender must always 
 be accompanied by payment into Court. If the plaintiff does 
 not recover more, the defendant gets the costs of the action. 
 Payment into Court is made where the defendant admits the 
 plaintiff's claim to a certain amount. If made unconditionally, 
 the plaintiff may take the money out, and if he accepts it in 
 satisfaction he may get his costs, unless it is paid in with a 
 plea of tender. If he does not accept it in satisfaction, he 
 may still take it out of Court, but the action goes on, and if 
 the plaintiff does not recover more he will not get any costs 
 incurred after the payment in. If it is paid in in the alterna- 
 tive, with a defence denying liability, the plaintiff may accept 
 it in satisfaction, and get his costs, but if he does not do this, 
 he cannot take it out, and the action goes on, and if the 
 plaintiff does not recover more than paid in the defendant 
 will get his costs. (Indermaur's Practice, 95-99.) 
 
 Q. State shortly the eff^ect of the rules as to payment of 
 money into Court in an action. In what cases may tnoney 
 be paid in with a denial of liability, and what is the effect 
 of such payment ? 
 
 A. (1) A defendant in any action for debt or damages 
 may pay money into Court before or with the delivery of his 
 defence, or by leave of the Court or a Judge at any later 
 
PROCEDURE AND EVIDENCE. 37 
 
 time, which payment in shall be taken to admit the claim, 
 or cause of action, in respect of which the payment is made. 
 (2) The defendant may also pay money into Court with a 
 defence denying liability, except in actions or counter-claims 
 for libel or slander. When such a payment in is made the 
 plaintiff may accept the amount and tax his costs, but he 
 cannot take it out except in satisfaction. Such payment in 
 does not admit liability, and if the plaintiff does not recover 
 more than so paid in, the defendant gets his costs from the 
 time of payment in. (Indermaur's Practice, 95-99.) 
 
 Q. Where payment into Court has been made, either with 
 defence or otheriuise, ought this fact to be communicated to the 
 jury ? 
 
 A. No ; it is specially provided that where an action is 
 tried by a Judge with a jury, no communication to the jury 
 is to be made until after the verdict is given, either of the 
 fact that money has been paid into Court, or of the amount 
 paid in ; but the jury are to be required to find the amount 
 of the debt or damages, as the case may be, without 
 reference to any payment into Court. (Indermaur's Practice, 
 99, 100.) 
 
 Q. Under ivhat circumstances may an action be brought 
 on for trial without any -pleadings 1 
 
 A. (1) When on a summons under Order XIV., leave 
 being given to defendant, the action is put into the special list 
 for trial (see ante, p. 31). (2) A plaintiff may indorse on his 
 writ a statement sufficient to give notice of the nature of his 
 claim and state that if the defendant appears he intends to 
 proceed to trial without pleadings. If the defendant appears, 
 the plaintiff may then, within ten days of appearance, serve 
 21 days' notice of trial without pleadings. If the defendant 
 is not satisfied to have the action thus disposed of, he may, 
 however, within ten days of appearance, take out a summons 
 for delivery of a statement of claim, and if an order is made 
 the ordinary pleadings take place, or instead of this any 
 
38 THE student's guide to 
 
 necessary particulars may be ordered to be delivered. 
 (Indermaur's Practice, 68, 69.) 
 
 Q. Where an action is proceeding to trial without pleadings 
 by reason of the plaintiff's notice to that effect, what defences 
 are open to the defendant at the trial? 
 
 A. Subject to any order for particulars, all defences are 
 open to the defendant — except that if he has not taken out a 
 smnmons for delivery of a statement of claim, he cannot rely 
 on a set-off or counter-claim, or on the defences of infancy, 
 coverture, fraud, Statutes of Limitation, or discharge under 
 the Bankruptcy Acts, unless he has within ten days after 
 appearance given notice to the plaintiff stating the grounds 
 and particulars upon which he relies. (Indermaur's 
 Practice, 69.) 
 
 3. — Inteelocutoey Peoceedings. 
 
 Q. Enumerate some of the various interlocutory applica- 
 tions that may he made during an action. 
 
 A. Summonses may be according to circumstances taken 
 out for any of the following matters : (1) For time to deliver 
 pleadings ; (2) For particulars of claim or defence ; (3) For 
 leave to administer interrogatories ; (4) For the opponent to 
 make an affidavit of documents ; (5) For the action to be 
 transferred to the County Court ; (6) To change the place of 
 trial ; (7) For the plaintiff to be ordered to give security for 
 costs ; (8) To refer the action to a referee or arbitrator. 
 (Indermaur's Practice, Part 11. , chap. 4.) 
 
 Q. Must separate summonses he taken out for every 
 particular thing vAich is required in the course of an action^ 
 or may several apjjlications he embodied in one summons ? 
 
 A. Separate individual applications may be made, or one 
 general Summons for Directions may be taken out in the 
 Queen's Bench Division, though not in the Chancery 
 Division. A Summons for Directions may embody generally 
 
PROCEDURE AND EVIDENCE. 39 
 
 all things required. It must be served not less than four 
 days before the return day, and on the hearing of such 
 summons, any party, as far as practicable, should apply for 
 any order or directions as to any interlocutory matter or 
 thing that he may require. A Summons for Directions 
 having once been taken out, any application subsequently for 
 any directions as to any interlocutory matter is made under 
 the original summons by giving two clear days' notice to the 
 other party stating the grounds of the application, and thus 
 the issue of any fresh summons is avoided. (Indermaur's 
 Practice, 91, 92.) 
 
 Q. What is meant by discovery f How many kinds of 
 discovery are there f 
 
 A. Obtaining from the opposite party to the litigation 
 knowledge of documents and facts. There are two kinds 
 of discovery, viz. : (1) Of facts by means of interrogatories, 
 and (2) of documents by means of an affidavit of documents 
 and inspection thereof on notice or order. (Indermaur's 
 Practice, 100, 102.) 
 
 Q. By what proceedings can oneparty to an action compel 
 his opponent to disclose facts or documents ? Describe the 
 practice relating to such proceedings. 
 
 A. As to facts, interrogatories may be administered, but 
 leave must first be obtained. The interrogatories must be 
 answered on oath within ten days. £5 has to be paid into 
 Court to security for costs account before delivery, and if the 
 interrogatories exceed five folios 10s. for every additional 
 folio. As to documents, a summons may be taken out asking 
 that the opponent makes an affidavit stating what documents 
 he has in his possession, custody, or power. Here also £5 
 has to be paid into Court, and such amount may under special 
 circumstances be increased. (Indermaur's Practice, 100, 106.) 
 
 Q. State the principcd rides for obtaining discovery and 
 inspection of documents. 
 
 A. Discovery of documents may be obtained by either 
 
40 THE student's GUIDE TO 
 
 party to an action by summons, unsupported by affidavit, 
 askinf^ for an order for his opponent to make an affidavit of 
 documents. Before an order can be made £5 must be paid 
 into Court to the " security for costs account," as an 
 indemnity in respect of the costs of the discovery, unless for 
 special reasons this is dispensed with by the Court, and such 
 amount may under special circumstances be increased. 
 Inspection is usually obtained by giving notice to produce 
 documents enumerated in any affidavit or pleading, when the 
 other party should, within two days, if the documents are 
 all specified in an affidavit of documents, or within four days 
 if specified otherwise, dehver a notice stating a time within 
 three days, at which they may be inspected at his sohcitor's 
 office. If the notice above referred to is not complied with, 
 the documents generally cannot be given in evidence, but the 
 party has also a right to compel inspection by taking out a 
 summons. In addition to this, in the first instance, a sum- 
 mons for inspection may be taken out, but if so, it must be 
 supported by affidavit showing (1) of what documents inspec- 
 tion is sought; (2) that the party applying is entitled to 
 inspect ; (3) that they are in the possession or power of the 
 other party. (Indermaur's Practice, 102-105.) 
 
 Q. Upon what subjects, and within what limits, may one 
 paHy to an action administer interrogatories to his opponent ? 
 
 A. Interrogatories may be administered as regards all 
 relevant facts tending to support the interrogating party's case, 
 but they must not be mere "fishing " questions. In all cases, 
 however, leave must first be obtained on summons for the 
 delivery of the interrogatories. Improper questions may be 
 struck out on the application of the party interrogated. 
 Before delivery of the interrogatories, there must be paid 
 into Court by the interrogating party to the " security for 
 costs account " a sum of i;5, and if the interrogatories exceed 
 five folios in length, the further sum of 10s. for every 
 additional folio. (Indermaur's Practice, 107, 108.) 
 
PROCEDURE AND EVIDENCE. 41 
 
 Q. In what cases will a plaintiff be compelled to give 
 security for costs ? 
 
 A. (1) When the plaintiff is permanently resident abroad, 
 even though temporarily here, unless, indeed, he has sub- 
 stantial property here. (2) To a limited extent, in action of 
 tort under the provisions of the County Courts Act 1888 
 (sec. 66), for here if defendant can show by affidavit that the 
 plaintiff has no visible means of paying costs if the verdict 
 goes against him, an order will be made for security, or that 
 the action be transferred to the County Court, unless the 
 plaintiff can satisfy the Judge that he has a cause of action 
 fit to be prosecuted in the superior Court. (3) When the 
 trustee of a bankrupt plaintiff continues an action com- 
 menced by the bankrupt. (4) When a limited joint stock 
 company is plaintiff, if it can be shewn that their assets may 
 be insufficient to pay costs. There are also some other 
 cases, but the above are the chief. (Indermaur's Practice, 
 116-118.) 
 
 Q. A foreigner residing out of the jurisdiction being sued, 
 puts foriuard a counter-claim. Can he be called upon to 
 give security for costs ? 
 
 A. He cannot be called upon to give security for the 
 costs of the action, but he can for the costs of the counter- 
 claim, if it is strictly a counter-claim as distinguished from 
 set-off (see ante, p. 29), for this constitutes a distinct cause 
 of action against the plaintiff. (Lake v. Haseltine, 55 L. J., 
 Q. B., 205 ; Indermaur's Practice, 116.) 
 
 Q. Under tvhat circumstances, and hoiu, can an action of 
 tort brought in the High Court be remitted to the Coumty Court '? 
 
 A. Under the County Courts Act 1888 (sec 66), if the 
 defendant can shew by affidavit that the plaintiff has no 
 visible means of paying costs if the verdict goes against him, 
 an order will be made for the plaintiff to give security, or 
 that the action be transferred to the County Court, unless 
 the plaintiff can satisfy the Judge that he has a cause of 
 
42 THE student's guide to 
 
 action fit to be prosecuted in the High Court. (Indermanr's 
 Practice, 116, 117.) 
 
 Q. In what cases can a defendant in an action who is 
 about to leave the country he arrested and imprisoned on 
 mesne 'process ? For hoiv long can he he so imprisoned f What 
 effect has the signing of final judgment in the action upon the 
 imprisonment f 
 
 A. When the plaintiff can prove that the defendant is 
 indebted to him in the amount of £50, and that his absence 
 from England will prejudice him in the prosecution of his 
 action, he may obtain an order for the defendant to be 
 arrested for a period not exceeding six months, unless and 
 until he gives security that he will not go abroad. In an 
 action for a penalty under some statute the plaintiff need 
 not, however, prove that the defendant's absence will so 
 prejudice him, and in this case the security is for the debt. 
 The defendant cannot be kept in prison after final judgment 
 has been signed. (Indermaur's Practice, 112, 113.) 
 
 Q. What means exist for enabling a party to attain 
 evidence before trial ? 
 
 A. If in any case it happens that a person who will be 
 required as a witness at the trial is about to go abroad, or is 
 very old, or is so ill that he is in danger of death, an order 
 may be obtained for the taking of his evidence de bene esse. 
 Such an application must be supported by affidavit, showing 
 that the person's evidence is material, and that he is about to 
 go abroad, or is very old, or is dangerously ill ; and in the 
 last case there must be an affidavit by a medical man. The 
 evidence so obtained can (except by consent) only be used 
 if it is shown to the satisfaction of the Judge at the trial 
 that the deponent is unable to attend. (Indermaur's 
 Practice, 13G, 137. j 
 
 Q. What is a " Special Case,^' aoid ivhai is the course of 
 procedure thereon ? 
 
 A. It is a means resorted to (a) by consent, where the 
 
PROCEDURE AND EVIDENCE. 43 
 
 parties are agreed on the facts, and only require the decision 
 of the Court on a point of law ; and (b) where the Court or a 
 Judge directs one to be stated for the purpose of obtaining a 
 decision on a point of law. The special case is entered for 
 argument, and comes on in due course to be heard. The 
 parties to a special case may agree that on the determination 
 of the point in dispute, a certain sum shall be paid by the 
 one to the other, either with or without costs, and the judg- 
 ment of the Court may be given therefor and execution 
 issued thereon. (Indermaur's Practice, 121, 122.) 
 
 Q. WImt are the existing 'provisions for referring an action 
 or any issues therein instead of allowing the same to proceed 
 and be disposed of in the ordinary manner ? 
 
 A. Under the Arbitration Act 1889, a Judge may at any 
 time refer any question for inquiry and report to an official 
 or special referee. It is also provided that (1) if all the 
 parties interested who are not under disability consent, or 
 (2) if the matter requires any prolonged examination of 
 documents or any scientific or local investigation which 
 cannot in the opinion of the Judge be conveniently disposed 
 of in the ordinary manner, or (3) if the question in dispute 
 consists wholly or in part of matters of account, the Judge 
 may at any time order the whole cause or matter or any 
 question or issue of fact therein to be tried before a special 
 referee or arbitrator, agreed on by the parties, or before an 
 official referee or officer of the Court. (Indermaur's 
 Practice, 176, 177.) 
 
 Q. Is there any appeal from either a Master^ s or a Judge's 
 decision on an interlocutory applicntion in Chambers ? 
 
 A. Yes, any party affected by a Master's order may 
 appeal to a Judge in Chambers (either by a written notice 
 or an indorsement on the summons) within four days, and 
 from a Judge in Chambers an appeal may be made to the 
 Divisional Court within eight days. The appeal notice 
 must in each case be returnable within these times. Any 
 
44 THE student's gctide to 
 
 such appeal is uo stay of proceedings unless so ordered. 
 (Indermaur's Practice, 123, 124.) 
 
 Q. What are the ^provisions of the Judicature Acts for (1) 
 discontinuing an action; (2) dismissing an action for ivant 
 of prosecution ; (3) abandoning any part of a statement of 
 claim or defence ? 
 
 A. (1) Plaintiff may discontinue the action at any time 
 before receipt of the statement of defence, or after delivery 
 of the statement of defence, if he has taken no proceedings 
 other than an interlocutory application, by giving a notice in 
 ^\Titing to the defendant, and paying the defendant's costs. 
 He cannot discontinue the action at any other stage of the 
 proceedings without leave of a Court or a Judge. (Inder- 
 maur's Practice, 124.) (2) The defendant may apply to 
 dismiss the action for want of prosecution when the plaintiff 
 omits within due time : — (a) To deliver his statement of 
 claim, (h) To obey an order for discovery, (c) To give 
 notice of trial. {lb., 112.) (3) Abandonment of any part of 
 a pleading can only be made by leave of a Court or Judge, 
 except in cases in which amendments are allowed without 
 leave. 
 
 4. — Trial and subsequent Peoceedings. 
 
 Q. What are the different modes of trial of an action ? 
 Give the substance of the principal rides now in force with 
 reference to determining the mode to be adopted. 
 
 A. (1) Before a Judge with a jury. In actions of libel, 
 slander, false imprisonment, malicious prosecution, seduction, 
 and breach of promise of marriage, either plaintiff or defen- 
 dant may have a jury as of right ; but in all other actions 
 notice of trial before a jury cannot be given, though an order 
 can be obtained for that purpose on apphcation of either 
 party, within ten days after notice of trial given. (2) Before 
 a Judge vdthout a jury. Except in the six actions named 
 
PROCEDURE AND EVIDENCE. 45 
 
 above, the trial is jprimd facie in this way. (3) Before an 
 official or special referee. This can only be by order. (4) 
 Before a Judge, or official, or special referee, with assessors. 
 This can only be by order. (Indermaur's Practice, 127- 
 129.) 
 
 Q. Under luhat circumstances, if any, can a ^plaintiff 
 claim the right to have his case tried by a jury (1) in the 
 High Court ; (2) in a County Court ? 
 
 A. (1) In actions of libel, slander, seduction, false im- 
 prisonment, malicious prosecution, and breach of promise 
 of marriage, the plaintiff may give notice for trial by Judge 
 and jury ; and if he gives notice for trial by a Judge without 
 a jury, the defendant may, within four days after service 
 of notice of trial, obtain a jury by merely giving notice for 
 one. In other cases, notice cannot be given for trial by a 
 jury, but on application of either party, within ten days 
 after notice of trial, an order will be made for a jury. 
 (Indermaur's Practice, 128.) (2) If the amount claimed 
 exceeds £5, either party has a right to a jury; but in other 
 cases, a jury can only be obtained by leave. 
 
 Q. At what stage of an action should notice of trial be 
 given, and ivhat length of notice is necessary ? 
 
 A. In all actions in which there are pleadings, the notice 
 of trial must be given within six weeks of the close of the 
 pleadings, otherwise the defendant may apply to dismiss the 
 action for want of prosecution. Ten days' notice is neces- 
 sary unless the defendant is under terms to take short notice, 
 which means four days. If the plaintiff has indorsed on his 
 writ a notice that he intends to proceed to trial without 
 pleadings, and the action is so proceeding, 21 days' notice 
 of trial must be given within ten days of appearance. 
 (Indermaur's Practice, 127.) 
 
 Q. By luhom are jurors summoned"^ Distinguish 
 betiveen the functions and qualifications of jurors in 
 early days of English history and at the present time. 
 
46 THE student's guide to 
 
 Can either parti/ to an action take any objection, and how, 
 to the jurors ? 
 
 A. By the sheriff. Formerly, jurors were witnesses who 
 were chosen because they knew and could testify of the facts 
 in issue ; now, a common juror must not be a witness, must 
 be over 21 and under GO, and must have ^OlO a year in 
 freeholds or copyholds, or i;J20 a year in leaseholds, or be 
 rated to the poor at £30 in Middlesex or £20 elsewhere. 
 Either party may challenge the array {i.e., the whole 
 panel) or the polls {i.e., individual jurors), for cause shown. 
 (Indermaur's Practice, 137, note (g)). 
 
 Q. Describe the order of 'proceedings upon a trial by jury, 
 distinguishing the province of the Judge from that of the jury. 
 
 A. The. counsel for the party on whom the affirmative 
 rests is ordinarily entitled to begin at the trial. He states 
 shortly the effect of the pleadings, states his client's case, 
 and proceeds to call his witnesses. These are examined by 
 him, cross-examined by the opposing counsel, and re- 
 examined if necessary. The case being closed, the opposing 
 counsel opens his case to the jury, and his witnesses are 
 examined, cross-examined, and re-examined, and the opposing 
 counsel then addresses the jury, the counsel for the party 
 commencing having the right to reply. If the opposing 
 counsel calls no witnesses, and puts in no documentary 
 evidence, then the counsel who began must, at the close of 
 his case, address the jury, and the opposing counsel thus 
 gets the last word to the jury. The Judge then sums up, 
 and the jury consider, and give their verdict. It is for the 
 Judge to direct the jury on all points of law, and for the 
 jury to find the facts. After the verdict it is for the Judge 
 to pronounce the proper judgment, and no motion for judg- 
 ment is now necessary. (Indermaur's Practice, 139, 143.) 
 
 Q. What are the chief functions of a Judge on a trial at 
 nisi prius ? 
 
 A. He has to preside at the trial and to determine on 
 
PROCEDUEE AND EVIDENCE. 47 
 
 the admissibility or inadmissibility of evidence tendered, also 
 to check any irrelevant or improper examination or cross- 
 examination. He should protect a witness from answering 
 questions which may tend to criminate him. He explains 
 any points occurring on which the jury require assistance. 
 He sums up the case to the jury, and directs them on the 
 law, and on the points as to which their verdict is required. 
 After verdict he gives judgment, and, if necessary, considers 
 and decides on the matter of costs. 
 
 Q. What is the efect of giving (V) notice to admit docu- 
 ments at the trial of an action ; (2) notice to 'produce docu- 
 ments at the trial ? 
 
 A. (1) The effect is that if the party to whom the notice 
 is given admits the documents they are then admissible, and 
 if he does not, then the costs of proving them have to be 
 borne by him, unless at the trial the Judge certifies that the 
 refusal to admit was reasonable. No costs of proving any 
 document are allowed when such notice has not been given, 
 unless in the opinion of the Taxing Master the omission to 
 give the notice has been a saving of expense. (2) The effect 
 of giving notice to produce is that if the party to whom the 
 notice is given has the documents in his possession and 
 fails to produce them, secondary evidence of them may be 
 admitted. (Indermaur's Practice, 131, 132.) 
 
 Q. What are the jproper steps to take in preparwig evidence 
 for trial ? 
 
 A. Ordinarily subpoenas are issued for the witnesses to 
 attend the trial to give evidence viva voce, but by consent 
 the evidence may be by af&davit, or the Court may order 
 any particular fact to be proved by affidavit. Practically, 
 however, evidence is never taken by affidavit in the Queen's 
 Bench Division, though it is sometimes in the Chancery 
 Division. It is usual to see the witnesses beforehand, and 
 prepare their proofs, that is take notes of the facts they can 
 prove. Notice to produce any original documents in the 
 
48 THE student's guide to 
 
 opponent's possession should be given, and, as regards docu- 
 ments in a party's own possession, a notice to inspect and 
 admit should be given. (Indermaur's Practice, 131-136.) 
 
 Q. ]yiiat are the rules ordinarily observed at a trial with 
 regard to (l) the examination of witnesses; (2) the proof of 
 attested deeds ? 
 
 A. (1) The party whose witnesses they are examines them 
 in the first instance, and in doing so he must be careful not 
 to ask leading questions, unless, indeed, they are in the 
 opinion of the Judge adverse witnesses. After examination 
 the opposing party cross-examines, and then the other party 
 has a right to re-examine on matters arising out of the cross- 
 examination. If in the opinion of the Judge a witness is 
 adverse, the party calling him may contradict him by other 
 evidence, or by leave of the Judge may show he made a 
 previous contrary statement, the circumstances thereof being 
 first mentioned to him. (2) If attestation was necessary to 
 the validity of the instrument, the attesting witness must be 
 called, or if dead, evidence of his handwriting given. If 
 attestation was not necessary, other proof may be given, e.g., 
 by calling a person who saw the instrument executed though 
 he did not attest, or by caUing a person who knows the 
 handwriting, or by admission, or even by comparison of 
 handwriting. (Indermaur's Principles of Common Law, 
 400, 463, 464.) 
 
 Q. Describe the process for obtaining the attendance of 
 witTiesses at a trial. If a ivitness, duly summoned^ fails to 
 attend, to what consequences is he liable '! 
 
 A. The ordinary course is by 2.subpcena ad testificandum, 
 but if the witness is required to bring documents with him a 
 subpoena duces tecum. A witness resident in Scotland or 
 Ireland can only be subpoenaed by leave. If a witness is 
 abroad, a commission may be issued, and, if in the Colonies, a 
 mandamus to the Court there to examine, or in any case a 
 request to the foreign Court to examine. If a witness is in 
 
PROCEDURE AND EVIDENCE. 49 
 
 custody on civil process his evidence is obtained by habeas 
 corpus ad testificandum, and if on criminal process by an 
 order from one of the principal Secretaries of State or a 
 Judge at Chambers. (Indermaur's Practice, 135, 136.) If a 
 witness has been duly subpoenaed, and proper conduct money 
 paid, and he does not attend, he is liable to a penalty of £10, 
 and he is also liable to an action for damages. (Indermaur's 
 Principles of Common Law, 444.) 
 
 Q. What is meant by a,nd what are the consequences of 
 
 (1) a special verdict, (2) a non-suit, and (3) a luithdrawal of 
 a juror respectively ? 
 
 A. (1) A special verdict is one not merely for the plaintiff 
 or for the defendant, but on such questions as the Judge has 
 thought fit to leave to the jury. It is the duty of the Judge 
 to direct such judgment to be entered as he thinks right. 
 
 (2) A non-suit is technically where the plaintiff does not 
 appear at the trial, but it more usually occurs where the 
 plaintiff does practically appear, but the Judge considers he 
 has no case, and at once decides against him without letting 
 the matter go to the jury. In such a case the rule still 
 appears to be that the action may be brought over again. 
 
 (3) This means that the parties come to terms, and the effect 
 of a juror being withdrawn is that the action is at an end, 
 and each party pays his own costs. (Indermaur's Practice, 
 140-143.) 
 
 Q. Define a judgment quando acciderint, and state 
 under luhat circumstances, and how, such judgment is 
 enforced. 
 
 A. It is a judgment against an executor or administrator 
 in respect of assets which may thereafter come to his hands. 
 When an executor or administrator pleads plene adminis- 
 travit, or plene administravit prceter, and the plaintiff cannot 
 disprove that plea, he should sign such a judgment. It is 
 enforced thus : — When the plaintiff knows that assets have 
 come to the defendant's hands he should serve a demand for 
 
60 THE student's GUIDE TO 
 
 payment, and on failure to comply with this, he should take 
 out a summons for liberty to issue execution, and on proof 
 that the defendant has so acquired assets an order will be 
 made. (Indermaur's Practice, 163.) 
 
 Q. Under luhat circumstances ivill a neiu trial be granted 
 iL'hen a cause has been tried and a verdict ]^ronounced by a 
 jury ? To ivhat Court must an application for a neiu trial be 
 noiu made ? 
 
 A. When either party is dissatisfied with the verdict on 
 any of the following grounds: — (1) Misdirection by the 
 Judge, or improper Wuission or rejection of evidence, but this 
 will only succeed when the Court is of opinion some sub- 
 stantial wrong has been occasioned ; (2) That the Judge was 
 disqualified by reason of pecuniary interest ; (3) That the 
 successful party, or an officer of the Court or the jury were 
 guilty of gross misconduct ; (4) That the damages are grossly 
 excessive or utterly inadequate ; (5) Surprise ; (6) That new 
 evidence has been discovered; (7) That the verdict was 
 obtained by perjury and conspiracy ; (8) That the verdict 
 was manifestly against the weight of evidence. The applica- 
 tion must now in all cases be made to the Court of Appeal. 
 (Indermaur's Practice, 145, 146.) 
 
 Q. Explain the modes of enforcing iudgment in an 
 action. 
 
 A. (1) Fieri facias for the seizing and selling the debtor's 
 goods. (2) Capias ad satisfaciendum for the taking of the 
 body subject to the Debtors Act 1869, and also a judgment 
 summons under that Act. (3) Elegit for the seizing lands ; 
 and, if the debtor has only an equitable estate, or, indeed, 
 any property which cannot be seized in execution in the 
 ordinary manner, by the appointment of a receiver, which is 
 called equitable execution. (4) Garnishee order for attaching 
 and obtaining debts due to the judgment debtor. (6) 
 Charging order to obtain payment out of stock of the 
 judgment debtor. (6) Writ for the delivery up of certain 
 
PEOCEDURE AND EVIDENCE. 5l 
 
 property. (7) Writ of possession for the putting of a person 
 in possession of lands for the recovery of which he has a 
 judgment. (8) Writ of sequestration for levying on a 
 person's property to compel obedience to the judgment. (9) 
 Writ of attachment under which the party may be com- 
 mitted to prison. (10) Writs oifi. fa. de bonis eccleslastlcis, 
 and sequestrari facias for raising the amount of the judgment 
 out of the benefice of the defendant, who is a clergyman. 
 (Indermaur's Practice, 149-161.) 
 
 Q. What is the forrti of the lurit of fieri facias, and ivhat 
 effects of the debtor are exempted from its operation ? 
 
 A. It is a writ directed to the sheriff commanding him to 
 seize and sell sufficient of the judgment debtor's goods to 
 satisfy the judgment. (Indermaur's Practice, 149.) The 
 following are some of the chief things exempted from being 
 taken under such a writ : — (1) Wearing apparel and bedding 
 and implements of trade of any judgment debtor not exceed- 
 ing £5. (2) Goods of a stranger. (3) Goods in custodid 
 legis. (4) Fixtures. (Notes to Simpson v. Hartopp, Inder- 
 maur's Common Law Cases, 17.) 
 
 Q. What is a ^^ garnishee order"? State the principcd 
 provisions of the existing law as to the attachment of 
 debts. 
 
 A. A garnishee order is an order obtained by a judgment 
 creditor against a third person to pay to him money owing 
 by such third person to the judgment debtor. It is obtained 
 in the first instance ex parte, on affidavit by the judgment 
 creditor or his solicitor, of judgment having been recovered 
 and being still unsatisfied, and of a debt being due from 
 some third person within the jurisdiction. On this an 
 order is made for the third person to attend and show 
 cause why he should not pay the debt to the judgment 
 creditor. Unless good cause is shown, the order is made 
 absolute, and then enforced by execution. If the plaintifl 
 does not know any one owing money to the judgment 
 
 E 2 
 
62 THE student's guide to 
 
 debtor, be may obtain an order for the debtor to attend and 
 be orally examined as to what debts are owing to him. A 
 garnishee order cannot be obtained against wages owing to 
 any seaman, servant, labourer, or workman. (Indermaur's 
 Practice, 156, 157.) 
 
 Q. State the general rules as to costs on trial of an 
 action. 
 
 A. Under the provisions of the Judicature Act 1890, and 
 of Order LXV., rule 1, costs are in the discretion of the 
 Court or Judge, subject to this, that when an action is tried 
 by a jury costs follow the event, unless for good cause shewn 
 otherwise ordered. By reason of the County Courts Act 
 1888 (51 & 52 Vict., c. 43, sec. 116), if the plaintiff recovers 
 less than £20 on contract, or £10 on tort, he gets no costs 
 without a special certificate or order, and if, though recover- 
 ing these amounts respectively, he recovers not exceeding 
 £50 on contract (Millington v. Harwood (1892), Q. B., 166) 
 or less than £20 on tort, he only gets costs on the County 
 Court scale unless otherwise ordered. But these provisions 
 have no application where the action is one which could not 
 have been commenced in the County Court, and here, 
 however small an amount the plaintiff recovers, he gets 
 his costs unless the Judge otherwise orders. (Garnett v. 
 Bradley, L. R., 3 H. L,, 944; Indermaur's Practice, 
 165-167.) 
 
 Q. Can a jjarty who has succeeded in an action he made 
 to jpay the costs of his opponent ? Does any appeal lie on a 
 question of costs ? 
 
 A. Yes, for costs are in the Judge's discretion, and though 
 in a trial by jury they follow the event, this is only if there 
 is no contrary order. It has, however, been decided that 
 it is not within the discretion of the Court to make a 
 defendant pay the whole costs of the action if the plaintiff 
 had no right to sue. There is no appeal on a question of 
 costs only, but this does not apply where a Judge exceeds 
 
PROCEDURE AND EVIDENCE. 53 
 
 his jurisdiction. Thus, if a plaintiff has no right of action 
 and the defendant wholly succeeds, but the Judge neverthe- 
 less orders the defendant to pay the plaintiff's costs, an 
 appeal would lie. (Indermaur's Practice, 169, 170.) 
 
 Q. What is the time alloived for appealing, and hoiv and 
 to what tribunal is the appeal brought from the decision of a 
 divisional Court ? 
 
 A. To the Court of Appeal, within three months if it is a 
 final judgment or order, or if it is an interlocutory order, 
 within 14 days, by notice of motion. The time within 
 which to appeal to the Court of Appeal is calculated from 
 the time at which the judgment or order was signed, 
 entered, or otherwise perfected, or in the case of the 
 refusal of an application, from the date of such refusal. 
 Where an ex parte application to a Divisional Court has 
 been made and refused, an application to the Court of Appeal 
 for a similar purpose must be made within four days. 
 (Indermaur's Practice, 269, 270.) 
 
 Q. Hoiv is an appeal to the Court of Appeal brought, and 
 tuith ivhat powers and duties is the Court of Appeal clothed 
 when dealing ivith an appeal from, the Court of First 
 Instance f 
 
 A. An appeal to the Court of Appeal is brought on by 
 means of a notice of motion, stating whether the whole or 
 part only (and what part) of the judgment or order appealed 
 from is complained of. The notice is a 14 days' notice if 
 from a final judgment or order, and four days' notice if from 
 an interlocutory order, and must be served on all parties 
 directly affected by the appeal. The Court has all powers 
 and duties as to amendment and otherwise of the Court of 
 Pirst Instance, with full power to receive further evidence 
 on questions of fact orally or by affidavit. The Court may 
 draw inferences of fact, and give any judgment, and make 
 any order which ought to have been made, and has full 
 power over costs. (Indermaur's Practice, 270-273.) 
 
54 THE student's guide to 
 
 5. — MiSCELLAKEOUS. 
 
 Q. What is (1) a vnnt of mandamus; (2) injunction; 
 (3) a urit of certiorari ; and in ivhai cases are they respectively 
 issued ? 
 
 A. (1) AVrits of mandamus are of two sorts. One is a pre- 
 rogative writ issued out of the Queen's Bench requiring some 
 inferior Court to do some particular thing appertaining to its 
 office and duty, and is confined to cases of infringement of 
 some pubHc right or duty, where no effectual relief can be 
 obtained by an ordinary action at \qm\ An instance of the 
 writ occurs where a justice is required to do some act 
 relating to his office. The second writ of mandamus is 
 under the Common Law Procedure Act 1854, to compel the 
 performance of any duty in the fulfilment of which the 
 plaintiff is personally interested. (2) An injunction is an order 
 of the Court prohibiting the doing of a certain act, or com- 
 manding its doing, in which case it is called a mandatory 
 injunction. (3) A writ of certiorari is a writ issued for the 
 purpose of removing any matter, or cause, from some 
 inferior Court into the Queen's Bench Division, on the 
 ground that a partial or insufficient trial only will be had 
 below. (Broom's Commentaries, 209, 212, 219.) 
 
 Q. What is a writ of attachment, and hoio and under u-hat 
 circumstances may it be obtained ? Can imprisonment for 
 debt be noiu enforced ? 
 
 A. A writ of attachment is a process from the Court 
 whereby a person is committed to prison for contempt of 
 Court. It is used as a means of enforcing the doing of 
 specific acts ordered by the Court. It is obtained by motion, 
 of which notice has to be duly served, stating in general 
 terms the grounds of the application, and a copy of any 
 affidavit intended to be used on the motion must be served 
 with the notice. (Indermaur's Practice, 237, 238.) Imprison- 
 ment for debt is still allowed under the Debtors Act 1869 
 
PROCEDURE AND EVIDENCE. 55 
 
 (32 & 33 Vict., c. 62) in the following cases :—(l) Where 
 default is made in payment of a penalty other than a 
 penalty on a contract ; (2) where default is made in payment 
 of a sum recoverable summarily before justices ; (3) where 
 default is made by a trustee or other person in a fiduciary 
 capacity in obeying an order to pay over money in his posses- 
 sion ; (4) where default is made by a soHcitor in payment of 
 costs ordered to be paid for misconduct, or in payment of 
 money ordered to be paid in his character of an officer of the 
 Court ; (5) where default is made by a bankrupt in paying 
 over for the benefit of his creditors a portion of salary or 
 other income which he has been ordered to pay ; (6) where 
 default is made in payment of sums in respect of the pay- 
 ment of which orders are by that Act authorised to be made. 
 With regard to the cases numbered 3 and 4 it is, however, 
 now provided by 41 & 42 Vict., c. 54, that the Court has a 
 discretion as to imprisoning. The imprisonment must not 
 exceed one year. Also, under the Debtors Act 1869, a 
 judgment debtor can be imprisoned for not more than six 
 weeks on proof of means to pay. (Indermaur's Common 
 Law, 357-359.) 
 
 Q. Describe the object of, and the procedure upon, 
 the writs of mandamus, prohibition, and certiorari re- 
 spectively. 
 
 A. (a) The object of a writ of mandamus is to enforce the 
 performance by any person, corporation, or inferior Court 
 of some specified duty which the Court deems consonant 
 with right and justice. To obtain the writ, application 
 must be made by motion to the Queen's Bench Division, 
 supported by affidavit, showing that the apphcant has a 
 right to have something done, and has no other specific 
 means of compelling its performance. On service of the 
 writ, the mandatory must comply with it, or make a return 
 showing why he does not do so, and unless he complies or 
 succeeds in quashing the writ as insufficient on its face, he 
 
56 THE student's guide to 
 
 must answer or demur ; if judgment goes against him, the 
 Court awards a peremptory mandamus with, in cases of 
 private injury, damages and costs, (h) Prohibition hes from 
 a superior Court to an inferior one which attempts to exceed 
 its jurisdiction. The appHcation is made by summons or 
 motion, supported by afiidavit showing the facts and the 
 excess of jurisdiction, (c) Certiorari hes for the removal of 
 proceedings into the High Court of Justice from any inferior 
 Court before judgment ; the writ is sued out and left with 
 the proper officer of the inferior Court ; all proceedings are 
 stayed in the inferior Court, and the record itself is returned 
 into the High Court to be proceeded on there. (Broom's 
 Commentaries, 209, 216, 219.) 
 
 Q. Explain the meaning of and 'procedure with regard to 
 (1) a petition of right, (2) a lurit of habeas corpus. 
 
 A. (1) A petition of right is an extraordinary mode of 
 redress at the suit of a subject against the Crown, claiming 
 any hereditament or chattel. There is first the petition, and 
 then on answer indorsed thereon by the sovereign, soit droit 
 fait al partie, a commission is issued to enquire into the 
 matter. After the return of the commission, the Attorney- 
 General may plead in bar, and the question raised is deter- 
 mined upon issue or demurrer. (Broom's Commentaries, 
 234.) (2) This is a writ to effect deliverance from illegal 
 confinement, existing at Common Law, and amended and 
 perpetuated by various statutes, the chief of which is known 
 as the Habeas Corpus Act (31 Car. 2, c. 2). The writ is 
 granted on motion out of the Queen's Bench Division. The 
 return is made by producing the prisoner, and setting forth 
 the grounds and proceedings upon which he is in custody, 
 and then the matter is argued. If the return is deemed to 
 present sufficient matter in justification of the prisoner's 
 detention, he is remanded to his former custody ; if in- 
 sufficient he is discharged therefrom. (Broom's Com- 
 mentaries, 229. j 
 
PROCEDURE AND EVIDENCE. 57 
 
 Q. (a) Explain the procedure in interpleader, (b) Can an 
 auctioneer, luho sells goods under instructions frovi A, luith an 
 indemnity from him obtained after notice of a claim by B, 
 avail himself of the procedure of interpleader ivhen sued for 
 the proceeds of the salef 
 
 A. (a) Issue a summons calling the two claimants before 
 a Judge ; the applicant must support his summons by an 
 affidavit that (1) he claims no interest in the subject matter 
 other than for charges or costs ; (2) he does not collude with 
 any of the claimants ; and (3) he is willing to pay or transfer 
 the subject matter into Court, or dispose of it as the Court or 
 a Judge may direct ; the Judge hears the application, and 
 makes an order upon it, usually directing an issue to be 
 tried between the two claimants, and if the amount involved 
 does not exceed £500, such issue may be tried in the County 
 Court. (Indermaur's Practice, 119, 120.) (b) Yes, he can 
 do so (Thompson & Wright, 54 L. J., Q. B., 32); but it 
 would be otherwise if he had identified himself with one of 
 the claimants (Tucker v. Morris, 2 L. J., Ex., 1), or had 
 colluded with either of them. 
 
 Q. Explain the meaning of and describe the practice in 
 replevin, 
 
 A. Beplevin is a course that may be taken by a person 
 whose goods have been wrongfully seized by another, e.g., in 
 distress. A replevin bond is entered into before the registrar 
 of the district County Court, with two sureties ; an action is 
 then commenced to try the question of the right to the 
 goods. In the meantime the goods remain in the possession 
 of the party on whom the distress, &c., has been levied ; and 
 if the matter is determined against him he has to give fchem 
 up. (Indermaur's Practice, 58, note {q}.) 
 
 Q. Give instances in tvhich a wrong may be redressed by 
 the act of the party injured ivithout recourse to legal proceed- 
 ings by way of action. 
 
 A. (1) Self-defence, by which a man may use force to 
 
58 THE student's guide to 
 
 repel force as regards himself, his wife, child, servant, or 
 friend, and his goods. (2) Kecaption or reprisal, which 
 allows a man to retake his goods peaceably from any one 
 who has wrongfully taken possession of them. (3) Entry 
 on lands, by which a person may peaceably resume possession 
 of his owm lands as against a wrongful holder. (4) Abate- 
 ment, which enables a man to put a stop to a nuisance 
 peaceably. (5) Distress, which allows a man to seize the 
 croods of his tenant for rent in arrear, or the cattle of another 
 damage feasant (6) Seizure of heriots when due. 
 
 Q. Can a laivfid oivner of a house of which another is 
 in wrongful possession repossess himself by entry luithout 
 obtaining judgment in ejectment ? What is the effect of a 
 forcible entry ? State and discuss the decision in Newton v. 
 Harland. 
 
 A. There is considerable conflict of judicial authority on 
 this point. The Statute 5 Eich. 2, c. 1, i3rohibits any forcible 
 entry. In Newton v. Harland (1 M. & Gr., 644) it was held 
 that a forcible entry, being unlawful under the statute, could 
 not give such lawful possession as would enable the owner to 
 justify the forcible expulsion of the wrongful holder. Any 
 party so entering is clearly liable to be indicted under the 
 statute, and it seems that the wrongful holder may obtain 
 damages, not for the forcible entry, but in respect of any 
 wrongful independent acts which are done in the course of 
 or after the forcible entry. (Indermaur's Principles of 
 Common Law, 312.) 
 
 Q. Discuss the question hoiv far an agreement ousting the 
 jurisdiction of our Courts is enforceable or void. 
 
 A. Such an agreement is void on the ground of public 
 policy. It is, however, lawful to enter into an agreement as 
 to the mode of settling the amount of damage or the time 
 for payment or any similar matter which does not go to the 
 root of the action. The question whether an arbitration is 
 necessary before a complete cause of action arises, or whether 
 
PR0CEDUEI5 AND EVIDENCE. 59 
 
 the agreement to refer disputes is collateral and independent, 
 must be determined by the construction of the particular 
 contract, and the intention of the parties collected from its 
 language. Where there is an agreement to do a thing, and 
 to refer any dispute in connection therewith to arbitration, 
 and one party sues upon a breach of the agreement, the other 
 may at any time after appearance, and before taking any other 
 step in the action, apply to a Judge at Chambers to stay the 
 action, on the ground that he is and always has been ready 
 to proceed with the submission to arbitration, and that there 
 is no suf&cient reason why it should not thus be proceeded 
 with. (Arbitration Act 1889, sec. 4 ; Indermaur's Practice, 
 178, 179.) 
 
 Q. Define the jurisdiction of the County Court in actions 
 of toH and of contract. Can a plaintiff, and if so by ivhat 
 means, commence an action in the County Court where his 
 demand is for a sum in excess of the jurisdiction of the Court ? 
 
 A. The County Court has a general jurisdiction, both in 
 tort and contract, up to £'50, except in libel, slander, breach 
 of promise of marriage, and seduction. The plaintiff can 
 abandon the excess, and thus bring the case in the 
 County Court, or under section 64 of the County Courts 
 Act 1888, it may be brought in the County Court for 
 the full amount by consent signed by both parties or 
 their solicitors. 
 
 Q. What are the limits of jurisdiction of a County Court 
 in an action of contract ? Explain the meaning of the enact- 
 ment against splitting demands in those Courts. 
 
 A. All actions of contract except breach of promise to 
 marry, if the claim is not more than £50, whether on 
 balance of account or otherwise, may be commenced in the 
 County Court (County Courts Act 1888, sec. 56), or by 
 signed consent, any action that can be brought in the 
 Queen's Bench Division {lb., sec. 64). The plaintiff may 
 not divide his cause of action where it exceeds £50 for the 
 
60 THE student's GUIDE TO 
 
 purpose of bringing two or more actions in the County Court, 
 but may abandon the excess above £50 {lb., sec. 81). 
 
 Q. Hoiv is an action in the County Court commenced? 
 What are the proceedings upon a default summons, and in what 
 cases can such a summons be issued ? 
 
 A. It is commenced by plaint, which must be entered in 
 the County Court within the district of which the defendant, 
 or one of the defendants, resides or carries on business, 
 except in certain cases by leave. The default summons must 
 be personally served, and if no notice of intention to defend 
 is given within eight days of service, the plaintiff may sign 
 judgment. Such a summons may be issued where the action 
 is for a debt or liquidated money demand. (County Courts 
 
 Act 1888.) 
 
 Q. What is the jurisdiction of a County Court in cases of 
 ejectment, or where questions of title to land are involved ? 
 How is the defendant to avail himself of the want of juris- 
 diction ? 
 
 A. By the County Courts Act 1888, the jurisdiction 
 extends to cases where neither the yearly value nor rent 
 exceed jL'50 ; but the defendant or his landlord, within one 
 month after he is served with the summons, may apply to a 
 Judge of the High Court in Chambers for a summons for the 
 plaintiff to shew cause why the action should not be tried in 
 the High Court on the ground that the title to land of greater 
 value than £50 a year is affected, and the Judge may order 
 the action to be tried in the High Court. 
 
 Q. By ivhat process, and on what terras, can an action 
 be removed from a County Court into the High Court of 
 Justice ? 
 
 A. The mode of removing a cause from the County Court 
 to the High Court is by writ of certiorari. The right of so 
 removing a cause exists at Common Law, and now, mider 
 the County Courts Act 1888 (sec. 126), it is provided that it 
 shall be lawful for the High Court, or a Judge thereof, to 
 
PROCEDURE AND EVIDENCE. 61 
 
 order the removal into the High Court by writ of certiorari 
 or otherwise, of any action or matter commenced in the 
 Court under the provisions of this Act, if the High Court, or 
 a Judge thereof, shall deem it desirable that the action or 
 matter shall be tried in the High Court, and upon such 
 terms as to payment of costs, giving security, or otherwise 
 as the High Court, or a Judge thereof, shall think fit to 
 impose. 
 
 Q. Hoiu, and under what circumstances, and to what 
 Court or Courts, can an appeal be brought against a decision 
 in a County Court ? 
 
 A. An appeal may be brought to a Divisional Court of 
 the High Court when the claim is for .£20 or upwards, or 
 where leave is given, on the ground of some point of law 
 being wrongly decided, or upon the ground of wrongful 
 admission or rejection of evidence, or in a claim in which the 
 title to corporeal or incorporeal hereditaments is involved. 
 The appeal is now, in all cases, by an eight days' notice of 
 motion within twenty-one days of the decision complained 
 of. (Indermaur's Practice, 281, 282.) 
 
62 THE student's guide to 
 
 EVIDENCE. 
 
 I.— TEST QUESTIONS ON STEPHEN'S DIGEST OF 
 EVIDENCE. 5th Edition. 
 
 (The numbers at the end of the questions refer to the pages of 
 Stephen's Digest of the Law of Evidence.) 
 
 1. What is meant by oral evidence ? and by documentary 
 evidence? (2.) 
 
 2. What is the difference between conclusive proof and 
 a presumption ? (2.) 
 
 3. When are facts said to be (1) in issue, (2) relevant ? (2.) 
 
 4. Of what facts may evidence be given ? (3.) 
 
 5. If A is tried for cutting B's throat, is a statement 
 made by B (deceased) on running out of the room where A 
 was, but not in A's presence, admissible ? (5.) 
 
 6. On a trial of A, B and C for conspiracy, are (1) the 
 acts of each, (2) the statements of each, admissible in 
 evidence? (6.) 
 
 7. If A and B are charged with conspiracy to defraud 
 the Customs, is (1) an entry by A in a book, (2) an entry by A 
 on the counterfoil of his cheque book, evidence against B? (7). 
 
 8. Is evidence to be rejected because it is indecent, or 
 offensive to public morals, or injurious to the feelings of third 
 persons? (156,157.) 
 
 9. If the fact that A did a certain thing {e.g., murdered 
 B) is in issue, can evidence be given to show (1) that A had 
 a motive for doing such a thing, or (2) made preparations 
 for it, or (3) subsequently did acts which a person who had 
 done such a thing would be likely to do ? (10, 11.) 
 
 10. What do you understand by a statement forming 
 part of the res gestae ? (158). 
 
PROCEDURE AND EVIDENCE. 63 
 
 11. Would letters written by A be admissible in support 
 of a contention that A had gone abroad with intent to defeat 
 his creditors '? (H.) 
 
 12. In criminal cases, can evidence be given that the 
 prosecutrix made a complaint against the accused '? If so, 
 are the terms of the complaint admissible? (12, 159.) 
 
 13. Explain the maxim, Bes inter alios acta alteri nocere 
 non debet. (159; also see Broom's Maxims.) 
 
 14. On an issue whether a brewer supplied good beer to 
 a publican, is evidence admissible to prove the brewer 
 supplied good beer to other pubHcans ? (14.) 
 
 15. B's dog bites A, who sues for damages. Is evidence 
 admissible that the dog had previously bitten persons who 
 had complained to B ? (17.) 
 
 16. Upon the issue whether A said or did something, 
 when is evidence admissible to prove that A said or did a 
 similar thing on another occasion ? (15.) 
 
 17. How may guilty knowledge of an alleged receiver 
 of stolen goods be proved ? (15.) 
 
 18. On the question whether a false entry in a book 
 was made intentionally or accidentally by A's servant, is 
 evidence admitted to show other false entries made by the 
 same servant ? (19.) 
 
 19. What are the presumptions as to post letters? 
 (20, 21). 
 
 20. Explain the presumption. Omnia rite esse acta. 
 (Broom's Maxims.) 
 
 21. What is meant by hearsay evidence ? When is it 
 admitted? (22-57, 162-164.) 
 
 22. What are admissions ? Are they evidence for, or 
 against, the party who makes them ? How may they be 
 made, and by whom ? (23-28.) 
 
 23. Can a letter marked " Without prejudice " be used 
 as evidence in a civil action? {Walker v. Wilsher, 58 L. J., 
 Q. B., 501.) 
 
64 THE student's guide to 
 
 24. ^Vhen is a confession admitted in evidence at a 
 criminal trial ? (28-32.) 
 
 25. Explain what is meant by a dying declaration, and 
 when it can be used as evidence. (33, 34.) 
 
 26. What was decided in Price v. Torrington ? (1 Smith's 
 Leading Cases.) 
 
 27. What rule is illustrated by Higham v. Eidgway ? 
 (36-39; 2 Smith's Leading Cases.) 
 
 28. When are statements by a deceased person, as to 
 the contents of his will received in evidence ? (40.) 
 
 29. Distinguish between a public and a general right. 
 Under what conditions is hearsay evidence admitted in each 
 case? (40-42.) 
 
 30. Under what circumstances is hearsay evidence 
 admitted in questions of pedigree ? (42-44.) 
 
 31. When can evidence given by a witness 
 (who is now dead) at a previous trial be used ? 
 (44, 45.) 
 
 32. Can a bank be compelled to produce its books in an 
 action between A and B ? (49.) 
 
 33. Is a copy of entries in a banker's books evidence in 
 legal proceedings ? (49.) 
 
 34. Under what circumstances is a judgment a con- 
 clusive estoppel ? (50-57.) 
 
 35. When may a witness depose to his " opinion " on a 
 matter ? (58-63.) What is the leading case on evidence of 
 opinions ? (75.) 
 
 36. When is evidence of character admissible (1) in 
 criminal, (2) in civil trials ? (64-66.) 
 
 37. Of what matters does the Court take judicial 
 notice? (67.) 
 
 38. Need evidence be given of facts which are admitted 
 (1) in civil, (2) in criminal trials? (70.) 
 
 39. AVhat is meant by saying that oral evidence must 
 be direct? (71.) 
 
PEOCEDURE AND EVIDENCE. 65 
 
 40. In what two ways may the contents of a document 
 be proved? (72.) 
 
 41. What is meant by primary evidence ? (72.) 
 
 42. When must you call the attesting witness to prove- 
 the execution of a document ? How do you prove it if the 
 witness cannot be found? (73, 74.) Are there any 
 exceptions to the rule ? (75, 92.) 
 
 43. In what ways may you prove a document which 
 does not require attestation to make it valid? (76.) 
 
 44. What do you understand by secondary evidence? (76.) 
 
 45. Enumerate the cases in which secondary evidence of 
 a document can be given ? (76-78.) 
 
 46. What steps would you take to enable you to give 
 secondary evidence of a document which is in possession 
 (1) of the other party ; (2) of a stranger ? (79.) 
 
 47. How do you prove the contents of (1) any pubhc 
 document ; (2) a record ; (3) a statute ; (4) an order of the 
 Privy Council or a Government department ; (5) a foreign 
 or colonial judgment ? (81-90.) 
 
 48. Is there any presumption (1) as to the date of a 
 document ; (2) the order of execution of documents having 
 the same date ; (3) a stamp on a document ; (4) sealing and 
 delivery of a document professing to be a deed ? (91, 92.) 
 
 49. When is a document said to prove itself ? (92,93.) 
 
 50. Is there any presumption as to the date of alterations 
 in (1) a deed ; (2) a will ; (3) a simple contract ? (94.) 
 
 51. When is parol evidence admitted with respect to a 
 written document ? (95-98.) 
 
 52. What evidence may be given to interpret the words 
 used in a document ? (99-101.) 
 
 53. If a lease of a rabbit warren contains a covenant 
 to leave 10,000 rabbits, can oral evidence be given to show 
 1,000 rabbits means 1,200? (101.) 
 
 54. If the name of a legatee is left blank, can oral 
 evidence be given to fill it in? (101.) 
 
 F 
 
66 THE student's guide to 
 
 55. What is meant by the onus of proof? (105.) 
 
 56. On whom is the bm^len of proof? Show how the 
 burden may be shifted from one side to the other ? (106-108.) 
 
 57. Specify some of the chief presumptions. (111-115.) 
 
 58. Wliat are the chief cases of estoppel m paisf 
 (115-119.) 
 
 59. Enumerate the cases in which a person is in- 
 competent to give evidence. (120-130.) 
 
 60. What communications are privileged from dis- 
 closure? (125, et seq.) 
 
 61. What questions may a witness refuse to answer? 
 (131.) 
 
 62. In what cases is corroborative evidence needed ? 
 (132, 133.) 
 
 63. Is more than one witness ever necessary? (133, 134.) 
 
 64. When may evidence be given on affirmation instead 
 of on oath ? (135.) 
 
 65. In what ways may oral evidence be taken? (137.) 
 
 66. What matters can be dealt with in cross-exami- 
 nation and re-examination ? (140.) 
 
 67. What is meant by a leading question? Can it be 
 asked ? (140.) 
 
 68. What is the object of cross-examination ? (141.) 
 
 69. AVhen may evidence be called to contradict answers 
 to questions as to veracity of a witness ? (142.) 
 
 70. What course can be adopted with an adverse witness 
 by the party calhng him ? (193, 198.) 
 
 71. Can a witness refresh his memory by looking at a 
 document? (146.) 
 
 72. What use can be made of depositions taken at a 
 criminal enquiry before justices ? (148.) 
 
 73. How do you perpetuate testimony in criminal cases ? 
 (149.) 
 
 74. What remedy is there for improper admission or 
 rejection of evidence ? (152.) 
 
PROCEDURE AND EVIDENCE. 67 
 
 II.— QUESTIONS AND ANSWEES ON EVIDENCE. 
 
 Q. What is the difference between substantive and adjective 
 laiv ? 
 
 A. The former defines rights, duties, and Habilities. The 
 latter comprises the mode of applying the former; and 
 consists of (1) the rules of procedure which regulate litiga- 
 tion, (2) the rules of pleading, by which the material facts 
 in issue are ascertained, and (3) the rules for proving 
 those facts by evidence, presumptions, judicial notice, and 
 inspection. 
 
 Q. Wiat is meant by admissible evidence ? 
 
 A. Any matter of fact of which the effect, tendency, or 
 design is to produce in the mind a persuasion (affirmative or 
 negative) of the existence of some other matter of fact (1 
 Benth. Jud. Ev., 17), which is in issue between the parties, 
 or is relevant to the issue, and which is not excluded because 
 of privilege, opinion, hearsay, character, or res inter alios. 
 
 Q. Hoiv do you determine the credit to be attached to 
 human testimony f 
 
 A. (1) By correctly understanding the language used. 
 (2) By judging the deportment of the witness, his previous 
 veracity, and any interest or bias he possesses. (3) By 
 judging the capacity of the witness as regards opportunity 
 of observation, power of discernment, memory, and import- 
 ance of the thing deposed to. (4) By weighing the con- 
 sistency of the story, and its possibihty or probability, or the 
 contrary. (Best, 8th edition, pt. 1.) 
 
 Q. State and illustrate the rule as to best evidence. 
 
 A. The rule is that nothing but the highest quahty of 
 evidence which the nature of the case admits of will be 
 allowed to be tendered. Thus the Judge and jury must not 
 decide matters on their own knowledge (save points judicially 
 noticed) ; the evidence must be original and not derivative 
 (subject to the rule about secondary evidence of documents) : 
 
 F 2 
 
68 THE student's guide to 
 
 and the e\adence must be relevant. The rule is founded on 
 the presumption that if inferior evidence is offered when 
 evidence of a better nature can be obtained, the substitution 
 of the former for the latter arises from fraud, or gross 
 neiiliRence, which is tantamount to fraud. To enable a 
 person to give secondary evidence of a document he must 
 show that he has done everything in his power to get the 
 best or primary evidence, e.g., if an original document is in 
 his opponent's possession he must show that he has given a 
 notice to produce before he can be entitled to give a copy in 
 evidence. (Indermaur's Common Law, 448, 449 ; Best, 
 bk. 1, pt. 1.) 
 
 Q. When is parol evidence admitted to explain, vary, or 
 add to the terms of a written instrument ? 
 
 A. The general rule is that parol evidence is not admis- 
 sible to vary, &c., the terms of a written contract (Burgess 
 V. Wickham, 3 B. & S., 669). The exceptions are : — (a) In 
 cases where terms are proved supplementary or collateral to 
 so much of the agreement as is in writing ; (6) in cases where 
 explanation of the terms of the contract is required ; (c) in 
 the introduction of usages of trade or locality into the con- 
 tract ; {d) in the application of equitable remedies in the case 
 of mistake ; (e) to impeach the instrument for duress, fraud, 
 or collusion. (Anson's Contracts, 261 ; Best, pt. 3, c. 1.) 
 
 Q. Apart from the pjleadings, what means are available 
 to each party for discovering, before the trial, the facts and 
 documents on ivhiclt the other side may rely ? 
 
 A. Discovery of facts, by interrogatories ; discovery of 
 documents, by affidavit ; and inspection of documents, on 
 notice or order. (Indermaur's Practice, 100-106.) 
 
 Q. Under what circumstances can an answer given by a 
 witness in cross-examination be contradicted ? 
 
 A. It was enacted by the Common Law Procedure Act 
 1854, sec. 23, and the Criminal Evidence and Practice 
 Amendment Act 1865, sec. 4, that " If a witness upon cross- 
 
PROCEDURE AND EVIDENCE. 69 
 
 examination as to a former statement made by him, relative 
 to the subject matter of the cause, and inconsistent with 
 his present testimony, does not distinctly admit that he 
 has made such statement, proof may be given that he in 
 fact did make it ; but before such 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 statement." But if the witness is asked a question 
 merely intended to impeach his veracity, and not material 
 to the subject matter of the case, evidence cannot be called 
 to disprove such a statement, although it may be sometimes 
 given to contradict an answer to a question which tends to 
 impeach his general veracity. (Powell's Evidence, 526, 527.) 
 
 Q. What remedy is there for im-proper admission or 
 rejection of evidence ? 
 
 A. (1) In civil cases, an apphcation may be made for a 
 new trial if any substantial wrong or miscarriage of justice 
 has taken place. (2) In criminal cases, after conviction, the 
 Judge has power to state a case for the Court for Crown 
 Cases Eeserved, as this is a question of law arising at the 
 trial (11 & 12 Vict., c. 78), irrespective of whether the 
 prisoner was defended, or the objection was taken. 
 
 Q. Specify some of the statutory alterations in the laiu of 
 evidence since 1837. 
 
 A. By 1 & 2 Vict., c. 105, persons are bound by oath 
 administered in any form they consider binding. By 5 & 6 
 Vict., c. 69, persons entitled to property contingent on future 
 events could file bills to perpetuate testimony. By 6 & 7 
 Vict., c. 85, criminals and interested persons not being 
 parties, and by 14 & 15 Vict., c. 99, the parties to suits 
 (except breach of promise and adultery cases) were made 
 competent and compellable to give evidence, though not 
 bound to answer any question tending to incriminate them- 
 selves. By 16 & 17 Vict., c. 83, husbands and wives of 
 
70 THE student's GUIDE TO 
 
 parties to civil suits were made competent and compellable 
 witnesses, though not allowed to disclose communications 
 made during marriage. By 17 & 18 Vict., c. 125, a witness 
 in civil cases was allowed to affirm, extended to criminal 
 cases by 24 & 25 Vict., c. 66; both replaced in 1869 by 
 32 & 33 Vict., c. 68, and now replaced by the Oaths Act 
 1888. By 17 & 18 Vict., c. 125 (civil), and 28 Vict., c. 18 
 (criminal), a party can discredit his " hostile" witness. By 
 32 & 33 Vict., c. 68, parties to actions for breach of promise 
 to marry were made competent witnesses, but require 
 corroboration, and parties to adultery cases and their 
 husbands and wives are competent witnesses, but are not 
 bound to confess adultery unless they have denied it in the 
 witness box. By 42 Vict., c. 11, copies of entries in bankers' 
 books are made evidence on certain conditions. 
 
 Q. What is a legal presumption ? Hoiv many kinds of 
 legal presumjjtions are there ? Mention some of the more 
 important pjresumptions. 
 
 A. An arbitrary inference expressly directed by the law 
 to be drawn from certain facts. Presumptiones juris et de 
 jure, which cannot be rebutted, and are therefore conclusive, 
 e.g., that a child under seven is incapable of committing a 
 felony; &nd presumptiones juris, which are conclusive unless 
 they are rebutted, e.g., that a bill of exchange was given for 
 value, that a person not heard of for seven years is dead, 
 that an accused person is innocent, that persons who cohabit 
 are married, that a child born in wedlock is legitimate. 
 (Pbipson, 2.) 
 
 Q. Distinguisli, betiveen presumptions of law and pre- 
 sumptions of fact, and betiveen conclusive and disputable 
 preswrnpAions of hew. 
 
 A. Presumptions of fact are inferences of some fact from 
 other facts that are known ; they are rebuttable and, even if 
 not rebutted, are not conclusive. Presumptions of law are 
 (1) conclusive, i.e., presumptiones juris et dejure, and these 
 
PROCEDURE AND EVIDENCE. 71 
 
 are irrebuttable, and arise when evidence is produced, the 
 proof of which binds the Judge in law to regard some 
 facts as proved beyond dispute ; (2) disputable, i.e., presump- 
 tiones juris, which may be rebutted, but are conclusive until 
 rebutted, e.g., that a child born during wedlock is legitimate, 
 that a child between seven and fourteen cannot commit 
 crime; that a person is sane. (Stephen's Digest, cap. 1; 
 Powell, 6th edition, 74.) 
 
 Q. What are the rules as to conflicting presumptions ? 
 
 A. (1) Special presumptions prevail over general ones, 
 e.g., a tidal stream is presumed to be navigable, but this 
 may be rebutted by proving acts of ownership by riparian 
 owners inconsistent with public rights. (2) Presumptions 
 derived from the course of nature are stronger than 
 casual presumptions. (3) Presmnptions are favoured which 
 give validity to acts. (4) The law presumes innocence. 
 (Best, 311, 317.) 
 
 Q. Mention the chief presumptions relating to infancy. 
 
 A. If the infant is under seven years of age he cannot be 
 convicted of crime, for the law considers him doli incapax 
 and this presumption cannot be rebutted. Between seven and 
 14, although still doli incapax, the presumption may be 
 rebutted by clear evidence that he knew that he was doing 
 wrong, for malitia supplet oetatem, except in the case of 
 rape. After 14, he is liable for all his crimes, except those of 
 mere omission, as non-repair of a highway ; and after 21 all 
 privilege of infancy ceases. Males under 14 and females 
 under 12 cannot consent to marriage. (Thwaites' Criminal 
 Guide, 12, 13.) 
 
 Q. Name some presumptions usually 'met ivith in 
 practice. 
 
 A. (1) All persons in the realm are presumed to know 
 the laws of the realm which have been duly promulgated. 
 (2) Children under seven cannot commit crime. (3) Pay- 
 ment of money is presumptive evidence of a debt. (4) The 
 
72 THE student's guide to 
 
 law presumes innocence. (5) Ambiguous acts are presumed 
 to be lawful. (G) Fraud and deceit and immorality are 
 never presumed. (7) Marriage is presumed from cohabita- 
 tion and reputation, except in bigamy cases and when 
 damages for adultery are claimed. (8) Children born during 
 wedlock are presumed to be legitimate. (9) Omnia 
 prcBsmmmtur rite esse acta — e.g., documents 30 years old, 
 coming from the proper custody, prove themselves. (10) 
 Possession is prima facie evidence of ownership. (11) A 
 letter duly posted is presumed to have been delivered in the 
 ordinary course. (12) A person not heard of for seven years is 
 presumed to be dead. (13) Omnia prcesumuntur contra 
 spoliatorem, e.g., Armory v. Delamirie, 1 Smith's L. C. (14) 
 A person's residence is presumed to be his domicile. (15) 
 A man is presumed to intend the reasonable consequences 
 of his acts. 
 
 Q. What is meant by " the burthen of proof" ? How is 
 this buHhen determined ? Give examples. 
 
 A. It means the obligation resting on a litigant of 
 pro\ang affirmatively his case. A man who brings another 
 before a judicial tribunal must rely on the strength of his 
 own right and the clearness of his own proof, and not on 
 the want of right or weakness of proof in his adversary. The 
 burthen of proof usually Hes on the plaintiff, but not always, 
 thus if an indorsee of a bill of exchange sues the acceptor, 
 and the defendant admits the drawing, accepting, and 
 indorsing to the plaintiff, but alleges that it was obtained by 
 fraud, of which the plaintiff had notice, here the burthen of 
 proof is on the defendant. (Best, 2G0, 261 ; Indermaur's 
 Common Law, 476, 477.) 
 
 Q. Explain how the burden of proof may be affected by 
 presumptions of laiv. 
 
 A. The onus is on the party who but for evidence would 
 fail. Thus a person suing for a debt must prove the con- 
 tracting of the debt as well as non-payment. But the law 
 
PBOCEDUEE AND EVIDENCE, 73 
 
 presumes a bill of exchange was given for value until the 
 contrary is shown ; therefore, if the holder sues the acceptor, 
 the burden will lie on the defendant to prove want of con- 
 sideration, and then will be shifted back to the plaintiff to 
 show he gave value for the bill, (Indermaur's Principles of 
 Common Law, 477.) 
 
 Q. Action for goods sold and delivered. Defence: Statute 
 of Limitations. On ^vhom is the burden of proof '^ Who has 
 the right to begin ? 
 
 A, The burden of proof is on the defendant, and he, 
 therefore, has the right to begin at the trial, (Indermaur's 
 Practice, 139.) 
 
 Q. Which party has the right to begin at the trial ? 
 
 A, In criminal cases, the prosecution. In civil cases, the 
 plaintiff, if the onus of proving any one of the issues rests 
 on him, or if he claims unliquidated and substantial 
 damages ; in other cases, the defendant. In revocation of 
 patents, the defendant, 46 & 47 Vict., c, 57, sec. 26. In 
 probate suits, the party propounding the will, unless 
 testamentary capacity and valid execution are admitted. 
 (Best, 269, 587 ; Phipson, 17.) 
 
 Q. What are the rides as to the right of reply at a trial ? 
 
 A. (1) If evidence is given to the jury (except as to 
 character) by the party which did not begin, the other side 
 has a right of reply. (2) In cases of joint defendants or 
 prisoners, if some call evidence and others not, the party 
 which began replies to the former, but the latter address 
 the jury last. (3) If the party which did not begin calls no 
 evidence, that party addresses the jury last, except (a) in 
 Crown prosecutions, when the Attorney or Solicitor-General 
 has the right to the last word, {b) if a prisoner makes a 
 statement to the jury. (Phipson, 19, 20.) 
 
 Q. Of ivhat matters is evidence unnecessary ? 
 
 A. (1) Matters admitted for the purpose of the trial. 
 (2) Matters judicially noted. 
 
74 THE student's guide to 
 
 Q. Hoiv are admissions made to save proof at the trial ? 
 
 A. In civil actions (except probate suits, divorce suits, 
 and peerage claims), admissions may be made (1) by the 
 pleadings, (2) by notice to admit facts under Order XXXII., 
 (3) by agreement. In criminal proceedings, by a plea of 
 guilty only. 
 
 Q. Of luhat matters must the Court take judicial notice ? 
 
 A. (1) The law and customs of England, the Supreme 
 Court Kules, &c., but not Scotch, colonial, or foreign law. 
 (•2) Constitutional, political, and administrative matters, 
 e.g., accession of the Sovereign, existence of a recognised 
 foreign State, officers of State. (3) Territorial and geo- 
 graphical divisions, e.g., counties, parishes, but not of the 
 situation or boundaries of a particular place. (4) The 
 official gazettes. (5) Official seals and signatures. (6) 
 Notorious facts, e.g., the course of nature, coins, standards 
 of weights and measures. (Phipson, cap. 2.) 
 
 Q. What are the chief functions of a Judge on a trial at 
 nisi prius ? 
 
 A. He has to preside at the trial and to determine on the 
 admissibility or inadmissibility of evidence tendered, also to 
 check any irrelevant or improper examination or cross- 
 examination. He should protect a witness from answering 
 questions which may tend to criminate him. He explains 
 any points occurring on which the jury require assistance. 
 He sums up the case to the jury and directs them on the 
 law and on the points as to which their verdict is required. 
 After verdict he gives judgment, and, if necessary, considers 
 and decides on the matter of costs. (Phipson, 3.) 
 
 Q. What generally are the respective functions of the 
 Judge and the jury in trials at nisi prius ? Illustrate your 
 answer by showing their respective functions in cases where 
 (1) ^^ probable caused' (2) '■'- reasonableness of belief or 
 suspicion," and (3) " contributory negligence " aA^se. 
 
 A. The rule is that matters of law are determined by the 
 
PROCEDURE AND EVIDENCE. 75 
 
 Judge, and matters of fact by the jury. Whether there is 
 any evidence, is for the Judge ; whether it is sufficient, for 
 the jury. The Judge must explain (and the jury regard) any 
 specific rule or presumption of law which may affect the 
 evidence adduced. The Judge also determines certain facts, 
 viz : (1) whether the facts as found by the jury do, or do not, 
 amount to reasonable and probable cause in actions for 
 maHcious prosecution and false imprisonment ; (2) what is 
 a reasonable time for doing an act ; (3) the existence of all 
 facts on which depend the admissibility of evidence ; (4) the 
 construction of written documents, though not of peculiar 
 or technical terms. Point (1) is for the jury to decide, except 
 in the two actions named above ; (2) is a question for the 
 jury ; (3) is a question for the jury, unless the Judge decides 
 there is no evidence of it. (Phipson, 3.) 
 
 Q. What use can he made of depositions taken before a 
 committing m^agistrate ? 
 
 A. Under 11 & 12 Vict., c. 42, sec. 17, in indictable 
 offences a deposition taken before justices can be used at the 
 trial, on proof that the witness is dead, or too ill to travel, 
 or kept out of the way, or insane, and that it purports 
 to be signed by the justice before whom it was taken, and 
 that it was taken in the presence of the party against 
 whom it is used, and such party had full opportunity to 
 cross-examine. A deposition for perpetuation of testimony 
 in criminal cases under 30 & 31 Vict., c. 35, sec. 6, can be 
 used at the trial if the deponent is dead or too ill to travel, 
 and it purports to be signed by the justice taking it, and 
 reasonable notice in writing was given to the other side, 
 who had full opportunity to cross-examine. (Stephen's 
 Digest, 148-150.) 
 
 Q. Can a witness he cross-examined as to 'previous state- 
 m^ents in writing f 
 
 A. Yes, without such writing being shewn to him. But, 
 if it is intended to contradict him by putting in the writing, 
 
76 THE student's guide to 
 
 his attention must first be called to those parts of the writing 
 which are going to be used. Further, the Judge at any 
 stage of the trial can inspect the writing and may then use it 
 for the purpose of the trial at his discretion. 17 & 18 Vict., 
 c. 125, sec. 2-1, as to civil cases, extended to criminal cases by 
 28 Vict., c. 18. These enactments overruled the answers 
 given by the Judges to the House of Lords, in Queen 
 Caroline's Case, 2 B. & B., 286. 
 
 Q. What do you understand by secondary evidence ? 
 Give the general rules applicahle to its admissibility. 
 
 A. Any evidence which falls short of primary evidence, 
 i.e., of the best evidence. The rule is that it cannot be 
 admitted until it is shewn that primary evidence is not 
 obtainable. Secondary evidence of the contents of a docu- 
 ment is admitted— (1) If the original is destroyed or lost ; 
 
 (2) if its production is physically impossible (characters traced 
 on a rock) or highly inconvenient (words cut on a tombstone) ; 
 
 (3) records and other public documents, which may usually 
 be proved by office copies or examined copies ; (4) a previous 
 conviction or acquittal proved by a certificate, 14 & 15 Vict., 
 c. 99, sec. 13; (5) entries in bankers' books under 42 Vict., 
 c. 11; (0) if in possession of the adverse party, who declines 
 to produce it; (7) if in possession of a third party who cannot 
 be compelled to produce it, and appearing to a subpwna 
 duces tecum claims the right to withhold it ; (8) if there is a 
 presumption of law that the document exists; (9) if the 
 papers are voluminous and only their general result has to 
 be proved; and (10) on examination of a witness on the voir 
 dlfQ — i^e., a ]preliminary examination to judge of his com- 
 petency to give testimony. As to oral testimony, secondary 
 evidence is only admitted if the witness gave testimony on 
 oath in a judicial proceeding in which the adverse litigant 
 had power to cross-examine, and the witness cannot now be 
 called, and the suit is substantially between the same parties 
 and on the same matters. (Taylor, 390, 423.) 
 
PEOCEDTJEE AND EVIDENCE. 77 
 
 Q. Holu, and ivhen, may secondary evidence be given of a 
 document which has been lost or destroyed ? 
 
 A. By any possible means, e.g., a copy, draft, recollec- 
 tion of a person who knew its contents. It must be shown 
 that the original did once exist, and that it has been 
 destroyed or is lost, *.e., that misuccessful search has been 
 made where it is most likely to be found. (Taylor, 397.) 
 
 Q. Row, and ivhen, may secondary evidence be given of a 
 document 'which is in possession of the other side ? 
 
 A. By any means the circumstances allow. Prove that 
 the document is in the possession of the other side, and that 
 you have served a notice to produce it. (Taylor, 406-418.) 
 
 Q. A document ivhich A, a party to an action, wishes to 
 give in evidence, is in the possession of B, ivho is not a party 
 to the action. What proceedings should A take to have the 
 document at the trial ? Should B refuse to produce the 
 document, has A any remedy ? 
 
 A. He should issue a subpccna duces tecum and serve it 
 on B. If B, being bound to produce the document, does not 
 do so, A may sue B for damages and B is also liable to 
 attachment. The Court may order a postponement of the 
 trial to allow of the production of the document. Secondary 
 evidence is not here admissible, unless the witness is under 
 no legal obligation to produce the document. (Stephen's 
 Digest, 77, 79 ; Powell, 399 ; Phipson, 379.) 
 
 Q. What docuTnents may a ivitness refuse to produce ? 
 
 A. A witness, if a stranger, cannot be compelled to 
 produce the title deeds of his property, nor documents in 
 the nature of title deeds. Nor can a party be compelled to 
 produce documents which he swears relate solely to his 
 own title or case, and do not tend to prove or support the 
 case of his opponent ; this privilege is not confined to title 
 deeds only. Nor can production be compelled of a document 
 which if produced would expose the witness to crimination, 
 penalty, or forfeiture. Also where a principal would be entitled 
 
78 THE student's guide to 
 
 to refuse production of a document, it cannot be compelled 
 from his solicitor, trustee or mortgagee. (Phipson, 110 ; 
 Best, pt. 3, c. 1.) 
 
 Q. Explain the term " hearsay evidence,'" showing ivhen 
 such evidence is admissible. 
 
 A. Hearsay evidence is some oral or written statement 
 of a person, who is not produced in Court, conveyed to the 
 Court either by a witness or by the instrumentality of a 
 document. The rule is to reject it as being " second hand ' 
 evidence not connected by responsible testimony with the 
 party against whom it is offered. It is admissible (1) in 
 matters of public or general interest ; (2) in cases of pedigree ; 
 (3) where it forms part of the res gestm ; (4) where it consists 
 of an entry or statement made by a person in the course 
 of business and discharge of duty (Price v. Lord Torrington), 
 or contrary to his pecuniary or proprietary interest (Higham 
 V. Kidgway) ; (5) evidence of a dead witness on a former 
 trial between the same parties ; (6) ancient documents to 
 prove ancient possession ; (7) books of a dead incumbent 
 containing payments and receipts relating to the benefice ; 
 and (8) dying declarations in trials for homicide. (Best, 
 439-458 ; Indermaur's Principles of Common Law, 451-457.) 
 
 Q. State (1) on ivhat grounds, (2) ivith what limitations, 
 (3) in what forms, hearsay evidence is admissible in matters 
 of 'public amd general interest. 
 
 A. (1) That the origin of the rights claimed is usually 
 of so ancient a date, and the rights are of so undefined and 
 general a character that direct proof of their existence 
 and nature can seldom be obtained and ought not to be 
 required ; that all persons must be deemed conversant 
 with matters in which the community are interested ; that 
 common rights are naturally discussed in public, and their 
 nature lessens the chance of personal bias, and therefore 
 what is uttered in conversation about them may be 
 presumed true ; that the general interest of the subject 
 
PROCEDURE AND EVIDENCE. 79 
 
 would call forth immediate contradiction to a false 
 statement ; that reputation can hardly exist without the 
 concurrence of many unconnected though interested 
 persons ; that such concurrence is strong presumptive 
 evidence of truth, and that the prevailing current of 
 assertion is used as evidence. (2) The limitations are (a) 
 to public or general interest as distinct from private rights ; 
 (b) in public interest, e.g., claim of highway, the evidence 
 of anybody is admitted, but in general interest, e.g., boundary 
 of a parish, the evidence must be from persons having local 
 knowledge, the declaration must have been made before any 
 controversy arose, it is admissible if made with the view of 
 preventing a dispute and although in direct support of the 
 declarant's title, and is not to be rejected if the declarant 
 stood in pari jure with the party tendering the evidence. 
 (3) Both oral and documentary declarations, e.g., deeds, 
 leases, copies thereof, maps if prepared by persons acquainted 
 with the district, a verdict or judgment on the matter in 
 issue. (Taylor, 537-559.) 
 
 Q. State (1) on ivhat grounds, (2) ivith what limitations, 
 (3) in ivhat forms, hearsay evidence is admissible in declara- 
 tions against interest. 
 
 A. (1) The extreme improbability of its falsehood. (2) 
 The declarant must be shown to be dead, he need not have 
 had positive personal knowledge, the entry must be against 
 his interest, that interest must be pecuniary or proprietary, 
 the entry must completely charge the declarant, the whole 
 entry is admitted (Higham v. Kidgway). (3) Whether oral 
 or written, E. v. Buckley, 13 CoXj 293. (Taylor, 588, et seq. ; 
 2 Smith's Leading Cases.) 
 
 Q. State (1) on ivhat grounds, (2) with what limitations, 
 (3) in what forms hearsay evidence is admissible in matters 
 of 'pedigree. 
 
 A. (1) Necessity — for, as facts must often be proved 
 which occurred many years before the trial and were known 
 
80 THE student's GUIDE TO 
 
 to few, strict adherence to ordinary rales of evidence might 
 often occasion faihire of justice. (2) The Hmitations are to 
 hearsay proceeding from persons who were cle jure related to 
 the family in question, as they would have the greatest 
 interest in seeking, the best opportunity for obtaining, and 
 the least reason for falsifying, information on the subject. 
 The declarant must be proved to be such a relation by 
 evidence independent of the declaration ; the declaration 
 must have been made ante litem motam, but is not rejected 
 if made to prevent litigation, or if living testimony could be 
 called ; the declarations may relate to the general facts of 
 descent and relationship or to the particular facts and times 
 and places of birth, marriage or death, but must be confined 
 to facts immediately connected with the pedigrees ; and the 
 proof of the declaration must be required for a genealogical 
 purpose. (3) Oral declarations of deceased relations ; family 
 conduct ; entries in any book or paper by parents or relations ; 
 correspondence of deceased relations ; recitals in settle- 
 ments, family deeds and wills, inscriptions on tombstones, 
 &c. (Taylor, 560, 579.) 
 
 Q. State (1) on ivhat grounds, (2) ivitli tvhat limitations^ 
 (3) in ivhat forms, hearsay evidence is admissible in declara- 
 tions in the course of office or business. 
 
 A. The rule as laid down in Price v. Lord Torrington 
 (1 S.L.C., 352) and other cases is that such entries will be 
 admitted when made strictly in the course of business or 
 discharge of duty. Nothing beyond this will be admitted. 
 The entry must have been made at the time of the event 
 occurring, and must have been made in the due discharge 
 of the business about which the person is employed, and 
 the duty must be to do the very thing to which the entry 
 relates and then to make a record of it. The grounds of 
 admission are that there may be no other evidence, and 
 the probability of the account being true or false is neither 
 greater nor less than the probability of the person being 
 
PROCEDURE AND EVIDENCE. 81 
 
 honest or dishonest which is nothing more than may be 
 said of every case of hearsay. (See Notes in 1 Smith's L. C, 
 353 et seq.) 
 
 Q. What is meant by secondary evidence of oral testimony ? 
 When and hoiv can this kind of evidence he made available '? 
 
 A. Any evidence falhng short of the oral evidence of the 
 person who actually gave such testimony. If a witness has 
 given his evidence on oath in a judicial proceeding in which 
 the adverse litigant had power to cross-examine, the testi- 
 mony so given will, if the witness himself cannot be called, 
 be admitted in any subsequent suit between the same 
 parties or the persons claiming under them, provided it 
 relates to the same subject or substantially involves the 
 same material points. (Taylor, 249.) 
 
 Q. Whe7i, and ivith ivhat limitations, are '^ dying declara- 
 • tions " receivable in evidence ? 
 
 A. They are admissible in trials for homicide only, where 
 the death of the declarant is the subject of enquiry and the 
 circumstances of the death are the subject of the declaration. 
 It must be proved that the declarant had a settled expecta- 
 tion, that he would not recover, and has since died. The 
 grounds for admission appear to be (1) Nemo vioriturus 
 presumitwr mentiri ; (2) the difficulty of getting better 
 proof ; (3) the witness' lack of interest in perverting the 
 words used. (Best, 443 ; Stephen's Digest, 33.) 
 
 Q. Explain Res inter alios acta cdteri nocere non debet. 
 A. No person is to be affected by the words or acts of 
 others, unless he is connected with them either personally, 
 or by those whom he represents, or by whom he is repre- 
 sented. If A sues B for goods sold, and B's defence is that 
 the sale was on certain terms, B cannot give evidence that 
 A has sold similar goods to strangers on those terms. Ex- 
 ceptions to the rule are (1) to prove existence of malice, 
 knowledge, intent, motive, or any bodily or mental state ; 
 (2) to prove guilty knowledge of a receiver of stolen 
 
82 THE student's guide to 
 
 goods ; (3) to prove an organised plan or scheme of 
 operation, e.g., fraud or to negative accident. (Best, •152-62; 
 Stephen, 14-21.) 
 
 Q. Is the opinion of a tuitness evidence f 
 
 A. Not as a rule, for the witness must depose to facts. 
 Exceptions exist : (1) as to the identification of a person, 
 thing, or handwriting ; (2) as to the apparent condition of a 
 person (drmik or sober), or thing (good or bad repair of a 
 house) ; (3) opinions of experts on matters of science, skill, 
 trade, and foreign law ; (4) character. (Best, 465-472 ; 
 Powell, 111-118 ; Stephen, 57-62 ; Phipson, 254-273.) 
 
 Q. Define admissions. By ivhom may they he made, and 
 ivhat is their effect when given in evidence '? 
 
 A. The term "admissions" means the mutual conces- 
 sions which the parties to an action make in the course of 
 their pleadings, the effect of which is to narrow the area of 
 facts or allegations requiring to be proved by evidence. 
 Counsel may at a trial bind their clients by any admissions 
 which they in their discretion see fit to make. An agent can 
 only bind his principal by admission when it comes within 
 the scope of his authority, and a wife can only bind her 
 husband when she has authority (express or implied) so to do. 
 An infant cannot make admissions, nor can his guardian or 
 next friend generally do so for him. The effect of admissions 
 is to bind the party making them, unless he can show 
 surprise or mistake, or other sufficient reason. (Indermaur's 
 Common Law, 480-482.) 
 
 Q. What is an estoppel ? How many kinds are there ? 
 
 A. An admission (or something which the law treats as 
 an admission) of so conclusive a kind that the party affected 
 by it is not permitted to contradict it, although he may 
 show that the party setting it up is himself estopped from 
 taking advantage of it. (2 Smith's Leading Cases, 693.) 
 It is based on the maxim Allegans contraria non est audiendus. 
 Estoppels must be reciprocal if both parties are intended to 
 
PROCEDURE AND EVIDENCE. 83 
 
 be bound ; usually affect only the parties and their privies 
 and not strangers ; and conflicting estoppels neutralize each 
 other. Three — by matter of record, e.g., a judgment; by 
 deed; and in pais, i.e., by conduct. A record is not an 
 estoppel if obtained by fraud or collusion (Duchess of 
 Kingston's Case, 2 Smith's L. C, 812); a deed is not an 
 estoppel if obtained by fraud or duress or tainted with 
 illegality. (Collins v. Blantern, 1 Smith's L. C, 398.) 
 
 Q. What are the rules which regulate the admission of 
 confessions in criminal cases ? 
 
 A. The confession must have been purely voluntary. So 
 that if the confession was made because of any inducement 
 of a temporal nature having reference to the charge and held 
 out by a person in authority {e.g., prosecutor or constable) 
 it is not admissible ; but any facts discovered by the aid of 
 such inadmissible confession can be used. (Eex v. Warwick- 
 shell, Leech, 263.) 
 
 Q. On what 'principle and with what limitations are 
 admissions and confessions received ? 
 
 A. The ground of reception is that a party's declaration 
 may be presumed to be true as against himself ; but no 
 presumption of truth arises with regard to declarations 
 made by the party or his agents in his favour. In order to 
 be received they must have been made voluntarily, and not 
 in consequence of any threat, promise, or the like ; for in 
 the latter case, the party making them may have been in- 
 duced, by hope or fear, to criminate himself falsely. They 
 only affect the party and not third persons. (Phipson, 
 122, 154.) 
 
 Q. What kinds of evidence are excluded on grounds of 
 public policy ? 
 
 A. (1) Evidence which would be prejudicial to the public 
 service ; (2) evidence which discloses the means by which 
 information for the detection of crime was obtained; (3) 
 evidence which discloses what the witness did in a 
 
 G 2 
 
84 THE student's guide to 
 
 judicial capacit}' ; (4) statements by a parent to bastardize 
 his off-spring; (5) communications to legal advisers, 
 but not to medical or spiritual advisers ; and (6) com- 
 munications between husband and wife. (Best, 529-536 ; 
 Phipson, 93.) 
 
 Q. What matters are not provable by a single witness ? 
 
 A. (1) In trials for treason or misprision of treason one 
 witness is not sufficient. (2) In trials for perjury one 
 witness is not sufficient unless there are circumstances 
 proved which corroborate such witness. (3) In breach of 
 promise cases the evidence of the plaintiff must be cor- 
 roborated by some other material evidence. (4) In bastardy 
 proceedings the evidence of the mother must be corrobo- 
 rated in some material particular. (5) Orders for the 
 removal of paupers, 39 & 40 Vict., c. 61, sec. 34. (6) 
 Offences under the Criminal Law Amendment Act 1885, sec. 
 4, and the Cruelty to Children Act 1889, if the proof rests on 
 unsworn testimony of children. (7) As regards the evidence 
 of an accomplice, it is the duty of the Judge to warn the 
 jury that it is unsafe to convict without corroboration though 
 they have a legal right to do so. (8) It is a rule of practice 
 to require corroboration in cases of claims to the property of 
 dead persons. (9) Wills. (Stephen's Digest, 132-134; 
 Phipson, 357, 358; Best, 551-569.) 
 
 Q. WJtat persons are noiu excluded from being tuitnesses in 
 civil cases ? 
 
 A. Formerly parties to actions, and their husbands and 
 wives, and any persons interested, and criminals and atheists, 
 could not give evidence, but they may do so now (6 & 7 
 Vict., c. 85; 14 & 15 Vict., c. 99 ; 16 & 17 Vict., c. 83; 
 32 & 33 Vict., c. 68; 51 & 52 Vict., c. 46). But in pro- 
 ceedings instituted in consequence of adultery a party to 
 the suit cannot be asked a question tending to show that he or 
 she has committed adultery, unless such witness has already 
 given evidence in disproof of adultery (32 & 33 Vict., c. 68). 
 
PEOCEDURE AND EVIDENCE. 85 
 
 Husbands and wives are not compellable to disclose com- 
 munications made by one to the other during marriage 
 (16 & 17 Vict., c. 83). An idiot is incapable of giving 
 evidence ; and so also is a lunatic, except during a lucid 
 interval. A person deaf, dumb, and blind cannot give 
 evidence. A young child incapable of understanding the 
 nature of an oath cannot give evidence. (Indermaur's Prin- 
 ciples of Common Law, 452-462.) 
 
 Q. What persoiis are incompetent to give evidence in 
 criminal trials ? 
 
 A. The accused and his wife (or husband) cannot give 
 evidence — except in high treason ; in proceedings for 
 personal injuries done by one to the other ; in indictments 
 for non-repair of a highway or bridge, or for nuisance to a 
 highway, river, or bridge, or for trying civil rights only 
 (40 & 41 Vict., c. 14) ; on a charge of sending an unsea- 
 worthy ship to sea (38 & 39 Vict., c. 88, sec. 4) ; under the 
 Sale of Food and Drugs Act 1875 ; under the Conspiracy 
 and Protection of Property Act 1875; under the Army 
 Discipline Act 1879 on a charge of unlawful possession of 
 arms, &c. ; under the Explosive Substances Act 1883 (46 
 Vict., c. 3, sec. 4); under the Married Women's Property Act 
 1884 in criminal proceedings by a husband against his wife, 
 (or vice versa) in respect of a crime done by one to the other's 
 property while they are living apart, or at the moment of 
 desertion; under the Criminal Law Amendment Act 1885 
 on a charge of rape, or indecent assault upon a female, or 
 abduction, or any offence mider that Act ; under the 
 Merchandise Marks Act 1887 ; in libel (Libel Act 1888) ; 
 and under the Cruelty to Children Act 1889. A child of 
 tender years cannot give evidence if it does not under- 
 stand the duty of speaking the truth; nor can a felon 
 sentenced to death ; nor idiots and lunatics, for they lack 
 understanding. SoHcitor and counsel of the accused cannot 
 give evidence as to knowledge acquired in that capacity, 
 
86 THE student's guide to 
 
 unless their client waives his privilege, or consulted them to 
 obtain information which would enable him to commit the 
 crime. (Eeg. v. Cox, 54 L. J., M. C, 41.) 
 
 Q. DescHbe the questions tuhich a ivitness may decline to 
 ansiuer on the ground of ^privilege. 
 
 A. There are two chief cases of privilege, viz. : — (1) On 
 the gromid that answering the question may tend to criminate 
 him or expose him to a penalty, which is a matter to be con- 
 sidered and determined by the Judge {Ex parte Keynolds ; 
 51 L. J., Ch., 766). (2) On the gromid of the matter 
 embracing a professional communication between counsel, 
 soHcitors or their clerks, and a client. The privilege here is 
 the client's, who may waive it, and for this ground of 
 privilege to exist professional employment and confidence 
 are essential (Reg. v. Cox & Railton, 15 Cox's Criminal 
 Cases, 611). A further ground of privilege of an exceptional 
 nature is that of matters relating to affairs of State. 
 (Indermaur's Principles of Common Law, 471-476.) 
 Q. What questions may a luitness refuse to anstver ? 
 A. (1) Questions the answers to which may in the 
 opinion of the Judge tend to criminate him or subject him 
 to a penalty, or to a forfeiture, but not questions which 
 expose him to a civil suit (46 Geo. III., c. 37). (2) Questions 
 upon confidential conversations between legal adviser and 
 client (see hereon Reg. v. Cox, 14 Q.B.D., 153.) (Stephen's 
 Digest of Evidence, 127-131.) 
 
 Q, What is the practice as to the reception of statements 
 made by a prisoner ivhen defended by counsel at a criminal 
 trial: (\) When no ivitnesses are called for the defence "? (2) 
 When vj'dnesses are called for the defence ? 
 
 A. The rule as now laid down is, that in case (1) he may 
 make a statement to the jury at the conclusion of his counsel's 
 speech ; but in case (2) he cannot make any statement in 
 addition to his counsel's address. (Broom's Commentaries, 
 1055.) 
 
PEOCEDURE AND EVIDENCE. 87 
 
 Q. What communications, oral and vmtten, are privileged 
 from discovery ? 
 
 A. (1) A witness is not compelled to answer any question 
 or produce any document tending to incriminate him ; 
 (2) Counsel, solicitors, and their clerks are not permitted to 
 disclose communications which have been made to them in 
 professional confidence by their clients, without the consent 
 of such clients, nor can the client himself be compelled to 
 disclose such communications ; any document prepared for 
 obtaining the advice of a solicitor is privileged, whether laid 
 before him or not ; evidence obtained after litigation is 
 threatened or begun ; (3) Communications, the disclosure of 
 which maybe prejudicial to public interests. (Powell, cap. 7.) 
 
 Q. How do the rules of evidence differ in civil and 
 criminal cases ? 
 
 A. Civil issues may be proved by preponderance of 
 evidence ; criminal issues must be proved beyond reasonable 
 doubt. The rules as to dying declarations, character, con- 
 fessions, and incompetency of parties to give evidence are 
 peculiar to criminal cases. At a criminal trial (1) more than 
 one witness is sometimes required, e.^., treason and perjury; 
 (2) evidence of accomplices is viewed with suspicion ; (3) 
 confessions are received with great caution, must be purely 
 voluntary, and are only admissible against the person making 
 them; (4) a prisoner on his trial cannot give evidence, 
 subject to the alteration made by the Criminal Law Amend- 
 ment Act 1885, and some other statutes ; (5) as a rule 
 husband and wife may not give evidence against each other ; 
 (6) there is a difference as to the use of depositions ; (7) 
 dying declarations as to cause of death are admitted in cases 
 of homicide ; and (8) witnesses as to character are allowed. 
 
 Q. State the rides for examination-in-chief ^ cross-examina- 
 tion, and re-examination. 
 
 A. In examination-in-chief, all material facts to prove the 
 party's case should be elicited by plain and direct questions, 
 
88 THE student's guide to 
 
 which must not be leading in their character, unless the 
 witness is a hostile one. In cross-examination, all material 
 facts for the cross-examiner's case not brought out by the 
 examination-in-chief should be elicited, and questions may 
 be asked to test the witness' veracity, and leading questions 
 are here allowed. In re-examination, strictly only questions 
 may be put on matters arising out of the cross-examination, 
 and here again leading questions must not be put. Generally, 
 the rules as to the non-admissibility of secondary and hearsay 
 evidence must be observed. (Stephen's Digest, 139, et seq.) 
 
 Q. What is meant by leading questions f When may they 
 be put ? 
 
 A. Questions which suggest the answers desired from 
 the wdtness. They may be asked in cross-examination, but 
 not on examination-in-chief, except (1) to identify persons or 
 things pre\nously described; (2) if a witness is called to 
 contradict another who has sworn to a certain fact, he may 
 be asked if the fact ever occurred ; (3) if a witness is hostile ; 
 (4) if the evidence is of a very complicated character, or the 
 witness manifestly has a defective memory ; (5) on intro- 
 ducing points to save time ; and (6) on points which are not 
 disputed. 
 
 Q. May a ivitness read his evidence ?■ 
 
 A. No. But he can " refresh his memory " by looking 
 at a writing made or examined by himself soon after the 
 event which it records took place. 
 
 Q. How is the attendance of a ivitness procured ? 
 
 A. In civil actions, by a writ of subpoena, which may be 
 either ad testificandum (to give evidence) or duces tecum (to 
 produce documents) ; the writ must be served personally ; 
 a reasonable sum for expenses must be tendered with it ; 
 disobedience exposes to(l) action for i:lO penalty and further 
 recompense under 5 EHz., c. 9, s. 12, (2) action for damages, 
 or (3) attachment for contempt of Court. Before justices of 
 the peace, by summons or warrant. At criminal trials, a 
 
PROCEDUEE AND EVIDENCE. 
 
 89 
 
 witness who was called before justices attends on his recog- 
 nizance, or is committed to prison for safe custody ; other 
 witnesses are served with a Crown Oftice subpoBna. 
 
 Q. Is evidence admissible at a criminal trial which tends 
 to show that prisoner has committed other offences than the one 
 he is being tried for ?■ 
 
 A. The prosecution cannot give such evidence for the 
 purpose of leading the jury to form the conclusion that the 
 prisoner is a person likely from his criminal conduct or 
 character to have committed the offence for which he is beins- 
 tried. But the bare fact of evidence tendered showing the 
 commission of other crimes does not make it inadmissible if it 
 is relevant to an issue before the jury ; and it is so relevant 
 if it bears on the question whether the act charged was 
 designed or accidental, or if it rebuts a defence which would 
 be open to the prisoner. (Makins v. Attorney General, Law 
 Students'' Journal, February, 1894, p. 34.) 
 
INDEX. 
 
 Abandoning part of claim or defence, 44 
 Abatement of nuisance, 58 
 Action — 
 
 Sketch of, 6-11 
 
 Preliminaries to, 22 
 
 Joining diflerent causes, 23 
 
 Commencement of, appearance, judgment in default and under 
 
 Order XIV., 25-32 
 Pleadings, 32-38 
 Interlocutory proceedings, 38-44 
 Trial and subsequent proceedings, 44-54 
 Miscellaneous points, 54-61 
 Procedure from writ to judgment, 26 
 Adjective law, 67 
 Admissible evidence, 67 
 Admissions, how made, 74, 82 
 Advice on reading evidence, 3 
 Advice on reading procedure, 2 
 Agreement ousting jurisdiction of Court, 58, 59 
 Amendment of pleadings, 35 
 Appeal — 
 
 From Master, 43 
 From Judge, 43 
 On question of costs, 52 
 From Divisional Court, 53 
 To Court of Appeal, 53 
 From County Court, 61 
 Appearance, steps on default of entering, 28 
 Arbitration Act 1889, 43, 58, 59 
 Arresting defendant before judgment, 42 
 Attachment of debts, how obtained, 51 
 Attachment, writ of, 54 
 
 B 
 
 Bankruptcy, effect of, on action, 28 
 Best evidence — rule as to, 67 
 Burthen of proof, 72, 73 
 
92 INDEX. 
 
 c 
 
 Certiorari, writ of, 54, 55 
 
 Communications privileged from disclosure, 86, 87 
 
 Concurrent writs, 29 
 
 Confessions in criminal cases, 83 
 
 Costs — 
 
 Of discovery, 39, 40 
 
 Security for, 41 
 
 General rules as to, 53 
 
 Appeal as to, 53 
 Counter-claim — 
 
 Explained, 28 
 
 How it diflfers from Set-off, 29 
 County Court — 
 
 Action, how commenced, 60 
 
 Appeal from, 61 
 
 Remitting action of costs to, 41 
 
 Default summons, 60 
 
 Right to trial by jury in, 45 
 
 Removing action to High Court, 60 
 
 Jurisdiction in contract, 59 
 „ „ tort, 59 
 
 ,, „ ejectment, 60 
 
 Credit attached to human testimony, 67 
 Cross-examination — 
 
 Evidence to contradict answers in, 68 
 
 As to previous statements in writing, 75 
 
 Rules for, 87 
 
 D 
 Death, effect of on action, 28 
 Debt — Attachment of, 51 
 
 Imprisonment for, 54, 55 
 Debtors Act 1869, 55 
 Declarations against interest, 79 
 
 „ in course of business, 80 
 
 Default of appearance, 28 
 Defences at trial without pleadings, 38 
 Demurrer, 28 
 
 Depositions, what use can be made of, 75 
 Digest of Questions and Answers — 
 
 On Evidence, 67-89. 
 
 On Practice, 22-61 
 Discontinuing action, 44 
 Discovery, 39, 40, 68, 87 
 
INDEX. 93 
 
 Dismissing action for want of prosecution, 44 
 Documents a witness need not produce, 77 
 Dying declarations, 81 
 
 E 
 
 Ejectment — see Land 
 
 Entry on land, 58, 58 
 
 Estoppel, 82 
 
 Evidence — de bene esse, 42 
 
 How obtained before trial, 42 
 
 Preparing for trial, 47 
 
 Of other offences, 89 
 
 At trial, 48 
 
 Test Questions on Stephen's Digest, 62-66 
 
 Digest of Questions and Answers, 67-89 
 
 Matters which need not be proved, 73 
 
 Different rules in civil and criminal cases, 8/ 
 
 Examination-in-chief — rules for, 87 
 
 Execution — Different modes of, 50 
 
 Goods exempt from, 51 
 Executors, rules for suing, 34 
 
 F 
 Fieri facias, 51 
 
 G 
 
 Garnishee order, 51 
 
 General interest, hearsay evidence, 78 
 
 H 
 
 Habeas corpus, writ of, 56 
 
 Hearsay evidence — 
 
 Definition, 78 
 
 Rule as to admission of, 78 
 
 Exceptions to rule, 78 
 
 In matters of public interest, 78 
 
 In matters of general interest, 7^ 
 
 Declarations against interest, 79 
 
 In pedigree cases, 79 
 
 In course of business, 80 
 
 Human testimony, how weighed, 67 
 
94 INDEX. 
 
 I 
 
 Imprisonment — 
 
 Of defendant before judgment, i'2 
 
 For debt, 54 
 Improper admission or rejection of evidence, 69 
 Infants, how they sue and defend, '27 
 Injunction, 54 
 
 Inspection of documents, 39, 40 
 Interlocutory proceedings, 38-44 
 Interpleader, 57 
 Interrogatories, 39, 40 
 Introductory and general remarks, 1 
 
 J 
 
 Judge and jury — 
 
 Difierent functions of, 46, 74, 75 
 Judgment — 
 
 Under Order XIV., 31 
 
 In default of appearance, 28, 31 
 
 Without trial, 32 
 
 Quando acciderint, 49 
 
 Modes of enforcing, 50 
 Judicature Acts — 
 
 Object of, 5 
 
 Changes introduced by, 25 
 Judicial notice — 
 
 Of what taken, 74 
 Jurisdiction of High Court, limits to, 24 
 Jurisdiction, service of writ out of, 24 
 Jurors — 
 
 By whom summoned, 45 
 
 Qualifications of, 46 
 
 Withdrawal of, 49 
 
 L 
 Land — 
 
 Action for recovery of, 26 
 
 When title must be pleaded, 33 
 Tenant must not dispute landlord's title, 34 
 Leading questions, 88 
 
 M 
 
 Mandamus, writ of, 54, 55 
 Married Woman — 
 
 How she sues and defends, 27 
 Matters for consideration before action, 22 
 Misjoinder of parties, 23 
 
INDEX. 95 
 
 N 
 
 New Trial — 
 
 Grounds for, 50 
 
 How obtained, 50 
 Nonjoinder of parties, 23 
 Nonsuit, 49 
 Notice — 
 
 Of trial, 45 
 
 To inspect documents, 40 
 
 To admit documents at trial, 47 
 
 To produce documents at trial 47 
 
 O 
 
 Opinion, evidence of, 82 
 
 Order XIV., proceedings under, 31 
 
 P 
 
 Parol evidence — 
 
 When admitted to explain written documents, 68 
 Partnership firm, rules for suing, 27 
 Payment into Court, 36, 37 
 Pedigree cases, hearsay evidence in, 79, 80 
 Petition of right, 56 
 Pleadings — 
 
 Nature of, 32 
 
 Names of, 7, 33 
 
 Times for delivery, 7, 33 
 
 Chief rules for, 33 
 
 In actions by or against executors, 34 
 
 Amendment of, 35 
 
 Trial without, 37 
 Practice, elementary sketch of Common Law, 5 
 Presumptions — 
 
 Of law, 70 
 
 Of fact, 70 
 
 Conflicting, 71 
 
 As to infancy, 71 
 
 Usually met with, 71 
 Prisoner, rules as to his addressing the jury, 85 
 Privileged communications, 86, 87 
 Procedure, what to read, 2 
 Prohibition, writ of, 55 
 Proof of attested deeds, 48 
 Public interest, hearsay evidence, 78 
 Public policy, evidence excluded for, 83 
 
96 INDEX. 
 
 Q 
 
 Questions (Test) on Indermaur's Manual of Practice, 11-22 
 Questions and Answers on Queen's Bench Practice, 22-61 
 Questions and Answers on Evidence, 67-89 
 Questions (Test) on Stephen's Digest of Evidence, 62-66 
 
 R 
 
 Recaption, 58 
 
 Re-examination, rules for, 87 
 
 Referring action to arbitration, 43 
 
 Rejoinder, 8, .33 
 
 Remedy for improper admission or rejection of evidence, 69 
 
 Renewal of writ, 29 
 
 Replevin, 57 
 
 Reply, 8, 33 
 
 lies inter alios acta alter i nocere non debet, 81 
 
 Right of reply, 73 
 
 Right to begin at trial, 73 
 
 Rule as to best evidence, 67 
 
 S 
 Secondary evidence — 
 What it is, 76 
 Rule for admission of, 76 
 Of documents, 76, 77, 77 
 Of oral testimony, 76. 81 
 Set-off distinguished from Counter-claim, 29 
 Special case, 42 
 Special indorsement — 
 Meaning of, 28 
 Cases for, 30 
 Advantage of, 30 
 Special verdict, 49 
 Statement of Claim, 7, 32 
 Statement of Defence, 8, 33 
 Statutory alterations in law of evidence, 69 
 Subpoena — 
 
 Ad testificandum, 48 
 Duces tecum, 48 
 Consequences of disobeying, 48 
 Substantive law, 67 
 Summons for directions, 38 
 Supreme Court, how constituted, 5 
 
INDEX. 1)7 
 
 T 
 
 Tender, 36 
 
 Test Questions on Parts I., II., and IV. of Indermaur's Practice, 11-22 
 
 Test Questions on Stephen's Digest of Evidence, 62-66 
 
 Third Party Procedure, 30 
 
 Tort- 
 Remitting action to County Court, 41 
 
 Trial- 
 Right to begin, 73 
 Right to reply, 73 
 Without pleadings, 37, 38 
 Modes of, 44 
 
 By jury in High Court, 45 
 „ „ County Court, 45 
 „ — sketch of proceedings at, 4fi 
 
 Withdrawal of a juror, 49 
 Witness — 
 
 When more than one required, 84 
 
 Questions he may refuse to answer, 86, 86 
 
 May refresh his memory, 88 
 Witnesses — 
 
 Mode of examination, 48 
 
 Examination of, 48 
 
 Cross-examination of, 48 
 
 Treatment of adverse, 48 
 
 How attendance procured, 48, 88 
 
 When answers in cross-examination can be contradicted, 68 
 
 Can be cross-examined as to previous written statements, 75 
 
 Incompetency in civil cases, 84 
 
 „ „ criminal cases, 85 
 
 Writ of summons, 25 
 
 To judgment, steps from, 26 
 
 Renewal of, 29 
 
 Concurrent, 29 
 
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