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Tudor, Barrister-at-Law. 6th Edition. In 2 Vols. Royal Svo. Price 4/. 4s. cloth. 1886. Estoppel. — The Principles of Estoppel. By Michael Cababe, Barrister-at-Law. Ciown Svo. Price 3s. 6d. cloth.' 1889. OF THE SUBJECTS OF PROBATE, DIVORCE, BANKRUPTCY, ADMIRALTY, ECCLESIASTICAL, AND CRIMINAL LAW FOR THE FINAL EXAMINATION. The Writers of this Work jirepare— Privately— in Class— and by Com'siHindonee— for the luioiitorated Law Society's and Bar Examinations, and for the First and Second LL.B. at Loudon University. SOME liKCEXT RESULTS. At the Solicitors' Final Examination 217 out of the last 233 pupils sent up have been successful. A class of 10 pupils has recently passed without a failure. Out of another cla.ss of 12 pupils 1 1 passed. At the Honours Examinations, prizes, scholar- ships, &c., wortli nearly 1,000 guineas, liave during the last few years been carried tiff by pupils of Mr. Napiku and Mr. Stepuen- 80X. The Honours include Law Society prizes, scholarships, exhibitions, studentships, &c., at the University Law Examina- tions and the Examinations at the Inns of Court. At the Bar Examinations, nine scholarships or studentships have been taken by pupils during the last tliree years. For further particidars apply to — Mr. NAPIER, 2. New Court, Lincoln's inn; or io Mr. STEPHENSON, 3. Plowden Buildings, Temple, E.G. G50 paijfs. Demy 8ro. Price ISs. A .^lloi^cvn Higcot l:V TO HE KNOWN FOn TIIK FINAL EXAMINATION OF THE INCORPORATED LAW SOCIETY. Done into Uue«tioni» and Ahhwctm. ami ii (iuidc to a Coursu of Study for that Kxuiuiuatiun. Dy T. BATEMAN NAPIER, LL.D., London. W. lUXWELL AND BON, BF.Lt YABD, TEUPLE BAB. STKVENli AND iK>N8, 119, CUANC£BY LA.VE. or THE SUBJECTS OF PROBATE, DIVORCE, BANKRUPTCY, ADMIRALTY, ECCLESIASTICAL AND CRIMINAL LAW NECESSARY TO BE KNO"WN FOB TUB FINAL EXAMINATION, DONE INTO QUESTIONS AND ANSWERS. WITE A FRELIMINARY CHAPTER ON A COURSE OF STUDY FOR THE ABOVE SUBJECTS. T. BATEMAN NAPIER, LL.D., London, FIRST CLASS LAW HONOURS LONDON UNIVERSITY, 1881 ; IXCORPOEATED LAW SOCIETY'S FIRST PRIZEMAN, TRINITY TERM, 1876; SCOTT SCHOLAR, 1876; CONVEYANCING GOLD MEDALLIST, 1876; INNER TEMPLE EQUITY SCHOLAR, HILARY TERM, 1881; SENIOR STUDENT IN JURISPRUDENCE AND ROMAN LAW AT THE INNS OK COURT EXAMINATION, HILARY TERM, 18S2 ; FIRST PRIZEMAN AT PROFESSORS LECTURES ON ROMAN LAW, (tc, HILARY TERM, 1882; HONOURS AT BAR CALL EXAMINATION, TRINITY TERM, 1882; JOINT EDITOR OF " THE JURIST," &C. RICHARD M. STEPHENSON, LL.B., London, HONOURS IN COMMON LAW AND EQUITY, FINAL LL.B. LONDON UNIVERSITY ; HONOURS IN JURISPRUDENCE AND ROMAN LAW, INTERMEDIATE LL.B.; SOLICITORS' FINAL, &C. EXAMINATION.S ; HOLDER OF INNER TEMPLE EQUITY SCHOLARSHIP; JOINT EDITOR OF "THE JURIST," &C. LONDON : W. MAXWELL & SON, 8, BELL YAUD, TEMPLE BAE; STEVENS AND SONS, 119, CHANCEEY LANE, 1888 \ liONDON: PaiNTEO DT C. F. BOWOUTU, OOKAT NEW 6TBEET, FETTEE LAXE, E.C. 3 1 PREFACE. The following work is intended as a Supplement to Mr. Napier's ^' Modern Digest of the Final Examination." The two books together cover all the ground which must be travelled over by the student for the Incorporated Law Society's Examinations. Neither work is intended as a substitute for the standard text-books of the various subjects, but rather as a supplement or aid to such text-books. The plan of the former Digest is also that of the present one. The ques- tions asked and answered in this work are not simply the old questions actually set in former examinations, dished up with answers supposed to be correct, and copied from well-known text- books. An effort has been made to set before the reader, by way of question and answer, the leading points in each subject treated of. It is believed that when the student has once carefully studied the text-books, nothing so impresses law upon his memory as the learning of the answers VI PREFACE. to questions set on tlic leading points contained in those books. A mere digest of answers to questions already set in the examinations is comparatively useless. It is so, firstly, because a large number of the old (juestions are certain never to be asked again. Some of them are based on a mistaken appre- hension of the law, others are absurdly easy, and some are simply silly. Questions of this kind are, of course, a small min(jrity of those actually asked in the examinations ; but they are suffi- ciently numerous to form a heavy burden to a student who endeavours to learn the answers to them. The second reason why a digest of all the questions already asked is comparatively useless is, because there is a great waste of effort involved in Icanihig the answers to tlie (questions as they come direct fnjm the Kxaininers. It is often a matter of little difficulty to condense the tliree or four (jf the Examiners' questions into one question, and to answer them witli one answer. Moreover, it too often happens that the Examiners ask (|uestions on l)ye points and minor issues, which nuiy easily be answered by a f[ucstion set on tlie main ])olnt of tlie subject in (question. AVhat the .student wants is to ete in tlie Honours Examination, he may safely rest content with the study of Mr. liingwood's work. But, even in thijj latter case, if ho discovers that he has ample time on his hands for the additional subjects, it would be well PRELIMINARY CHAPTER. XV for him to take Baldwin as his text-hook. "Whichever hook he may choose, he should pay special attention to the text of the Bankruptcy Act itself. It is surprising to find how many of the questions set may be answered simply by an accurate knowledge of the text of the Bankruptcy Act. There are, of course, many sections of this Act, especially those relating to the Board of Trade and its officials, and as to the arrangements necessary to be made in the offices to facilitate the working of the new Act, which are not useful for examination purposes. The student will discover which these sections are at a glance, and may pass them by without anxiety. The subject of Criminal Law is the most difficult of all those comprised in the examination upon which to offer advice. It is not too much to say that no single text-book which has been written will cover all the questions which are asked in nine out of ten of the papers on this subject. At the same time it is un- necessary for the student, especially the student for a pass, to read more than one good book on the subject. In almost all the examinations a majority of the questions can be satisfactorily answered from Harris's Criminal Law. There are alternative works which might be suggested to the book just named. There are the late Mr. Shirley's two little works on Criminal Law and on Summary Jurisdiction respectively. They are both excellent little books, and are both interesting and accurate. But Mr. Shirley has not quite gauged the profound depths of the Law Society's requirements of Criminal Law. The book on Sum- mary Juiisdiction is well enough for that small portion of the field. But that on Criminal Law deals chiefly with principles, and deals with them very ably. Principles, however, appear to be just the things for which the examiners in Criminal Law have no regard. Mr. Shirley's book does not descend to details, and it is precisely in the matter of details that the Law Society's papers are so exacting. There is hardly a single examination in which trivialities as to dog stealing, billiard playing on Sun- day, travelling in railway trains without a ticket, do not receive Xvi PREUMINAKY CHAPTF.R. a large share of attention. Of course some of the more important matters are touched upon, and in the Honours Examination the Criminal Law Questions are, ns a rule, very fair, and indicate some real grasp of the subject by the examiner. But the Pass Examination in Criminal Law has for long been the blot upon the Law Society's Examination. The fourth volume of Stephen's Commentaries has often been suggested as the text-book upon the subject. It is, however, open to some of the same objections as Mr. Shirley's book. It is not minute enough in its treat- ment of the lesser offences, and, in addition, it contains a certain amount of historical matter which is of no use to the student for examination purposes. There is nothing, then, for it but to master the six hundred very full pages of Mr. Harris's work. The student will have gathered from what has been said that in Criminal Law he must think no offence' too slight, or too repul- sive, to demand his attention. He must just learn as much of Mr. Han-is's work and lump it as he can. It is disagreeable to have to say it, but the way in wliich Criminal Law must be learned for this examination is by cramming it. It is no un- common habit of the examiner to ask the punishment for some trivial and silly crime. The student will be lucky if he can give a correct answer. To carry about the punishment for a huge number of small and unimportant offences can be of no service at all to him in after life, and in the present can only tax without improving his brain. Yet for the purposes of this examination he must remember as many of these punishments as he can conveniently retain. The better plan for him to adopt is to make up his mind to learn a certain number daily. After a few days of those interesting gymnastics he will probably dis- cover that he has learned as many as he can hope ever to re- member. Ho had better, then, cease from this troublesome effort, and trust in Providcnfe that some of the pimishments he has thus crammed into liis head will prove useful on the day of examination. It is very grievous to have to offer advice of this kind in relation to an examination which might be made full of PRELIMINAKY CHAPTER. XVll interest and of utility to the student. There are principles in Criminal Law just as there are in the Law of Contract and of Tort, and it is upon these that questions should be set at the examination. The portion of Mr. Harris's work which relates to procedure is not so useful to the student for the examination as that which relates to offences. For some reason or other few of the questions are on the practice of Criminal Law. At the same time no portion of the work should be omitted. There are points in almost every chapter which have already been, or are likely to be, asked at the examination. The concluding chapter of the work, that on Summary Jurisdiction, should be carefully learned, as almost every word of it is of importance. Passing on to the subject of the Law of Probate, there is a wide choice of excellent books before us. First, there is the well-known treatise on " Common Form Practice," by the late Mr. Coote, which has now attained to an eighth edition. As a practice book this is probably the best which the student can adopt, and if he has had occasion in the course of his articles to consult it on many occasions, it is advisable for him to read it carefully for the examination. It is not nearly such a formidable book as at first sight it appears, although the last edition, including the index, comprises more than 700 pages. It will be sufficient for the student to read the first 250 only. The rest of the work comprises the statutes, the rules of the Probate Division in non-contentious cases, and a voluminous set of forms. The statutes relating to probate are better read, if at all, in one of the numerous editions for students of the statutes generally. Many sections of the various Acts are un- necessary for the student. Further, it does not often happen that a question is set taken directly from a statute, which could not be quite as easily answered by a person from the text of the treatise as from the statute itself. The utility of the study of law directly from the statutes themselves is grossly exaggerated by many students for the examinations of the Incorporated Law Society. Yery recent statutes introducing changes of import- Xviii I'KKI.IMINAUY ( IIAI'TF.K. ance into the law ouglit. no doubt, to be studied with care. Such statutes are ilhist rated by the Settled Laud Acts and the Conveyancing Acts. But the useful provisions of all statutes are within a few years thoroughly well worked into the text- books, and are there rendered intelligible to the student. In a great manv cases provisions in statutes taken by themselves, and without explanation, are absolutely unmeaning to the student. "We may assume, then, that the reader who has had any previous acquaintance with Coote on Probate will adopt it as his text-book for the non-contentious portion of the subject. The disadvantage of reading Coote is, that some other work has to be studied to obtain a knowledge of the contentious part of probate work. The book most usually adopted for this purjiose is Browne's Probate Practice. The first half of this book is given to non-contentious practice, and corresponds, therefore, with Coote on Probate. If the student does not read Coote, he will find this first portion of Browne will be quite sufficient for the examination. It is not quite so practical as Coote, but is correct and plainly written. It is, on the whole, immaterial whether this non-contentious procedure is learned froiu Coote or Browne, and the question must be resolved by the circumstances of each individual student. If the student should be pressed for time, he will find that the 450 pages which the work or works we have referred to comprise will be too much for him. In that case it will be advisable for him to read Mr. Dixon's small Manual of Probate and Divorce. This work, coupled with the questions on probate in the Digest, will be sufticient, if thoroughly learned, to enable the student to obtain a fair proportion of the marks allowed to the jtrobate (questions. At the same time, we certainly advise the student who has time to study the larger work or works. We ought not to pass by the subject f)f I'robate without referring to the very excellent work of Mr. Dixon on that subject, which may well be read by students for the Honours Examination. For students for the Pass Examination simply the work is a little difficult, and hardly 80 useful as those which have been recommended. rKKLlMlNAltV (' HA ]•■]']•: R. XIX Divorce nexts demands om- attention, and here again there is a fair choice of books. For Honours, Browne's " Principles and Practice of Divorce " is the work which we usually recommend the student to make his principal text-book. It is a companion volume to " Browne on Probate," and contains about the same number of pages. The statutes and rules may be omitted in the case of divorce as well as of probate, and for the same reasons. There is a good volume on " The Law of Divorce," by Mr. Dixon, who is also the author of the " Probate Practice," to which reference has been made, and the student may, if he pleases, select this work as his text-book in preference to " Browne on Divorce." Unless, however, the student has a large amount of time at his disposal, it would be wise of him to confine his attention to the articles which have appeared in the Jurist on this subject, and which will probably shortly be published in a separate form. In the first place, they are of later date than either of the two other books, and contain all the recent cases and statutes of importance on the subject, and next, it is believed they contain nearly every point of practical importance on the law and practice of Divorce, and they have the advantage, moreover, of being specially written for the exami- nation. When this has been done, the student should go carefully through the questions in the Digest, and learn the answers to them, and when he has done so, he will, we think, be in a position to answer any reasonable question on the law of Divorce. In Admiralty, the student should certainly read Roscoe's "Admiralty," which is not a very formidable work, and Mr. Eustace Smith's small book on the subject, which is even less in size than Eoscoe's. A good many questions are asked in the Admiralty papers which lie on the borderland between the common law and the law chiefly adjudicated upon in the Admiralty Court. These questions are usually upon points con- nected with contracts of affreightment, or with the rights and liabilities of shipowners and charterers, &c. It is therefore advisable for the student to read the chapter in Smith's XX I'KKI.IMIN \KY (HAPTKU. "Moreantile Law" on contracts of aflVciglitmcnt and maritime iusuraueo. The subject should be finished with the questions from the Digest. The remaining subject for consideration is Ecclesiastical Law, a subject which is unlikely to be of use to many students in theii- after career, and as to which no very satisfactory text-book for the student now exists. No one has probably ever read through Mr. riiillimore's two huge volumes on this subject. Mr. Seward Brice's " Law relating to Public Worship " is readable so far as it goes, but does not cover the whole ground. The student for a Pass Examination should therefore content himself with Mr. Eustace .Smith's little work on the subject of Ecclesiastical Law, which is acciu'ate and not diiiicult to learn, and with the ques- tions from the Digest. For Honours, Mr. Brice's work and Blunt's ''Book of Church Law" may be added to Smith and tlie Digest. We have now taken the student step by step through a course of study for the new and heterogeneous mass of subjects which have been piled into the Examination within the last few months. It is very likely that he will find himself a good deal Ijewildered by the amount and variety of the work which has to be done, and that the answers to the examination papers for the future will be found to have deteriorated in quality. Whether that will be the ease or not, it is certain that the introduction of these subjects into the Final Examination has added tAvo months' hard work to that i»reviously requisite. Students have hardly renliy.ed tjiis as yet, but they will do so presently. We shall be a little astonished if comi»laints are not made to the Incorporated Law Society that articled clerks require too much time from office work for examination reading. With such comi)laints we should not sympathize, believing that a good training in the theory of law is invaluable to a practitioner, and that such train- ing can rarely be obtained pave in the days of student life. AVe only regret that the Examination has been made wider rather than deei.er, and that the student is required to learn the outlines of m large a number of subjects tluit j.erforce he must forget all about most of them within three months of his Examination. ^ §ii3r&t of PROBATE, DIYOECE, BANKRUPTCY, ADMIRALTY, ECCLESIASTICAL AND CRIMINAL LAW. Part I. THE LAW OF PROBATE. CHAPTEE L JURISDICTION. Q. What is the jurisdiction in probate cases of the Probate, Divorce, and Admiralty Division ? A. By the Court of Probate Act, 1857, tlie jurisdiction of the Ecclesiastical Courts in relation to grants, or revocations of probate, or letters of administration, was taken away from them and vested in a new court called the Court of Probate. By sect. 16 of 36 & 37 Yict. c. 66 (the Supreme Court of Judicature Act, 1873), the Couii of Probate was united with various other coiu-ts to form one Supreme Court of Judicature, and all the jmisdiction of the Court of Probate was transferred to the High Court, a branch of such supreme court. One of the divisions of the High Com't is a Probate, Divorce, and Admiralty Division, to which division is assigned all such matters as before the act would have come within the cognizance of the respective Comets of Probate, Divorce, and Admii-alty. Q. WHiat rules are in force in the Probate Division ? A. All rules and orders of court in force at the time of the commencement of the Judicatiu'e Acts in the Coiu't of Probate, except so far as they are expressly varied by the rules made in pursuance of the Judicature Act, are to be in force in probate cases until altered or annulled by any rules of the com-t made after the commencement of the act. The President for the time being of the Probate, Divorce, and Admiralty Division, with the concm-renee of the Lord Chancellor, and Lord Chief Justice, or one of the judges of the superior courts of law, has N. a 2 THE LAW OF I'UOHATE. power to niter, ameiul, ta- add to the rules or t)rder:> of the tlinsion relating to nou-eoutentious business. (Jutlieature Act, 1875, ss. 18, 21.) Q. A\'hat is meant by common form business ? A. This is d.'tined l)y .sect. 2 of the Couit of Probate Act, 1857 (20 »lc 21 Viet. c. 77), to be the business of obtaming pro- bat«' and administration Avhere there is no contention as to the right, including the jiasshig of probates or administrations tlirough the Coiu-t of Probate in contentious cases when the contest is terminated ; and all business of a non-contentious nature to be taken in the coui't in matters of testacy or intes- tacy not being itroceedmgs in any suit, and also the business of lodging caveats against the grant of probate or administration. Q. What are the respective jm-isdictions of the principal registr}' and the district registries as to the granting of jirobates and administration ? A. IVdbate or administration may always be applied for through the principal registry, wherever the testator or intestate at the time oi his death had his fixed place of abode ; but they can only be granted in common form by the district registry of the district within which the deceased had, at the time of his death, a fixed place of abode, and in case there is no dispute as to the right to the grant. This must appear from the affidavit of one of th».' ) .crsijns applying for the grant. (Act of 1857, ss. 4G and 59.) Q. ^fay a district registrar make a grant of probate or admi- nistration in ca.ses of dLsinitei' A. lie may not do so in any case in wliicli tliere is a contention as to the grant, imless such contention is tenninated by decree or otlierwise, or in any case in which it otherwise appears to liim that jtrobate or administration ought not to be granted in conmion fonn. (Act of 1857, s. 48.) (j. What course should be adojited by a district registrar who is in doubt whether the probate or letters of administration ni»plied for ought to be granted':' A. In tliiH case, or wliere any (juestion arises in relation to Kucli gnmt, he hhould send a statement of the matter in cpiestion to the registrars of the Couit oi' J 'robate, who are to obtain the JURISDICTION. 6 directiou of the judge in relation tliereto, and the judge may either direct the disti'ict registrar to deal with the matter according to his instructions, or may forhid any fiu'ther pro- ceedings by the district registrar, leaving the party to apply to the Probate Division through its principal registry. (Act of 1857, s. 50.) Q. Is it obligatory to apply for probate in a district registry or coimty court, as the case may be ? A. It is not obligatory; and application may always be made tlu'ongh the principal registry. In any contentious matter the Probate Division may send a cause to the county court judge having jm'iscliction. (Act of 1857, s. 59.) Q. In case of second grants of probate or administration is it compulsory to apply to any particular registry ? A. All second and subsequent grants are to be made in the principal registry or in the district registry where the original wdll is registered, and in respect of such second or subsequent grant in tlie district registry, it is not requisite to prove that the deceased had a fixed place of abode in such district. (Act of 1858, s. 20.) Q. What provision is there for the safe custody in the Probate Division of the wills of living persons ? A. Such wills may be deposited for safe custody with the Probate Division, upon payment of such fees and under such regulations as the judge may direct. (Act of 1857, s. 91.) Q. What property is the subject-matter of the jurisdiction of the Probate, c%c. Division in common form ? A. It is the personal property situate in England of any deceased person, whether an Englishman or a foreigner. Personal property includes a ship or share of a ship registered at a port in the United Kingdom, notwithstanding that such ship at the time of the death of the deceased, is at sea or else- where out of the United Kingdom. Q. In whom is the personal estate of a deceased intestate vested before the grant of letters of administration ? A. It is vested in the judge of the Probate Division for the time being. (Act of 1858, s. 19.) b2 4 niK LAW 01 rUOHAIE. Q. Has the county court any jurisiliftion in nou-eoutentious imilmtf niattei"S 't A. AVlu-n* the wliole estate of an intestate does not exceed a hundivd iMiunils. his widow or cliildren, provided they respectively ivsidt' at a distance exceeding tliree miles from the registry of the Probate Division having jui-isdietion in the matter, may apjily to the registrar of the county coiu't within the district of which tlic intestate had a fixed place of abode at the time of his death ; and thi- registrar is to fill uj. the usual papers re(piire(l by the c(jurt for a grant of administration, and to swear the aitplicant and attest tlie administration bond. He is tlien to transmit the papers by post to the registrar of the Probate Division having jurisdiction in the matter, who is to make out the letters of administration, and retmni them to the registrar of the count v coui-t, to be delivered bv him to the apjilicant on paATiient of the fees specified. (^30 «Sc 37 Yict. c. o2.) So wliere a widow dies intestate, her childi'en, if they reside within the same distance, ma}' apply as above mentioned. (38 & 39 Vict. c. i>7.) Q. "\\niat jm-isdiction have the c(^unty courts in contentious probate matters 't A. AVhere it is proved by affidavit that the deceased had, at the time of his deatli, his fixed ])lace of abode within one of tlic district regi>tries, and that liis personal estate, after deducting debts, was at tlie time of liis deatli under the value of 200/., and nl.'io tliat he was not at the time of his death possessed of real estate of the value of 300/. or ujiwards, the: judge of the count}' court liaving jurisdiction in the place in which the deceased had at the tinn.' of death a fixed jilace of abode, is to have tl;p conten- tious juri.sdiction any a notary, together with an allidavit of an advotato of the country, or of an expert in its laws, that the will is valid according to the law of the foreign country, and that the testator was domiciled there. If the will has abeady been admitted to probate in the foreign country, the affidavit just mentioned is not required. When the will is in a foreign language there must be a translation of it made and annexed by an English notary. CHAPTER II. EXECUTION, ^■Al,lnn•V, AM) REVOCATION OF WILL. [See also the Cliapter on Wills in the Modem Digest of the Final Exuminatiou, p. 172.] Q. What arc tlio chief instances of incapacity to make a will 'f A. They are clas.sified by Mr. Browm- in liis probate practice unrler three heads: — (1) Those whose capacity is defective I)// tiatun- or n'rctnmfftiiccs^ r.r/., persons who are lunatics, deaf and •lumlj, blind, illiterate, old, drunk, or ignorant of the contents of their wills. {'2) Those whose capacity is defective A// f//c art of of/irrx, /'.y., ].ersons acted on by fear, force, importunity, clamour, umlue influence, fraud, or error. (3) Those whose ca[)noity is tiiken away />;/ ojurdtion of lair, c.fj.^ mamcd women, infants, outhiws, and alien en<'mies. EXECUTION, VALIDITY, AND REVOCATION OF WILL. 7 Q. "When, apart from the Married Women's Property Act, 1882, coukl a married woman make a valid will ? A. (1) She might leave hy will property acquired by her as executrix ; (2) she might leave her personalty by will, provided that her husband assented to the particular will, but he might revoke his consent at any time before probate ; she might make a will (3) imder a power of appointment ; or (4) of her separate use property ; or (5) where she was judicially separated from her husband (20 & 21 Vict. c. 25, s. 25) ; or (6) where she had obtained a protection order under the same Act by reason of her husband's desertion ; or (7) where she died domiciled in a foreign country, according to the law of which she had power to bequeath her property. {Man-arcr, 1 Hagg. 498 ; WilHams on Executors, 53 to 64 ; Browne's Probate, 36 to 39.) Q. Need a will be in any special form ? A. If it is properly executed and meant to take effect upon death it may be in any form, even as a deed-poll or as an indentm-e, or a letter, or heads of a will ; all these have been admitted to probate. Q. Are any special formalities necessary to the validity of wills of seamen in the Navy and Marines as to wages, prize money, &c. ? A. In addition to the ordinary formalities generally required by law, where the -will is made on a Government ship, one of the two witnesses to such a will should be a commissioned officer, or chaplain, or subordinate officer, and where made elsewhere one of the witnesses should eitlier be one of the before-mentioned persons, or a justice of the peace, or clergyman, or consul, &c. (28 & 29 Vict. c. 72, ss. 3, 5), but the Admiralty may pay such prize money, &c., to any person claiming under a will, though not made in conformity with the foregoing requisites. {Ibid. s. 7.) Q. According to what law or laws should the will of a British subject abroad be made so as to pass his personal estate ? A. Such a will made out of the jurisdiction by a British subject is, as regards personal estate, well executed for the pur- pose of being admitted to probate if the same is made according to the forms required either (1) by the law of the place where the same was made ; or (2) by the law of the place where such 8 11 IK LAW OF PROUATE. l>ers«-»n was domiciled wliou the same was made; or (3) l>y the Lnvs then in force in that jiart of her Majesty's doiniuions where lie had his domicile ui origin. (24 cV: 2o A^ict. c. 114.) erson domiciled within its jm-isdiction. Q. To what extent do English courts recognize the decisions of foreign courts as to the validity of foreign wills? A. "Whenever a will has been formally recognii^ed by a court of comjtetent jurisdiction in the country of the domicile of the deceased at the time «jf his death, English courts recognize the decision of the foreign court, ami will not allow it to be ques- tioned in England. {Jli/lrr v. Jomr-^, L. 11. 3 V. ct T). 4 ; 42 L. J. P. .^c I). 21 ; 27 L. T. N. S. 8G2 ; 21 W. li. 272.) (^. I l"\v may a testator's signature be made ? A. The testator's name is, of course, to be signed in full ; but it ha.s been held suea may di.spose of his moveables, wages and personal estate as he or they might have done before the making of the Act. An a matter of fact, any e will i»robatc be granted of a will of realty only, nnles.'* tliere is an !i]i]ioini V. Lord Sf. Leonards, 1 L. R. P. D. 154, 252.) Q. If a will or codicil is in the possession of a person residing abroad, who refuses or neglects to give it ui>, has the executor any way out of the ditficulty ? A. Ho may obtain probate of a copy if he has one. (Coote, 127.) Q. May probate of a will, or administration mth the will annexed, be taken under a power of attorney ? A. THiere a jierson resides out of England, probate, or administration ■vvitli the ■v\ill annexed, may be granted to his attorney, acting imder a power of attorney. (P. R. R. 32.) Q. Do English courts recognize grants of probate or letters of administration of foreign coui*ts, including those of Scot- land? A. When the deceased is domiciled within the jurisdiction of the foreign court, it will follow the ruling of that court (1) by making an English grant to the person entitled to the Scotch or foreign grant, whether a grant has actually been made by the foreign com-t or not ; and (2) by making an English grant to the person to whom the foreign court has made its grant, without making any fm-ther inquiry. (Coote, 215 ; Westlake's Private International Law, pp. 92 — 96.) Q. llow is foreign law usually proved in the Probate Di\ision ? A. By an aiBdavit made by some person conversant with the law as a matter of practice, and not only theoretically. Q. I low soon may probate or letters of administration with the -will annexed issue after the death ? A. Not until after the lapse of seven daj's, unless under the direction of the judge, or by order of two of the registrars. (P. R. 43.) Q. "SVliat is the effect of not taking out probate for more than tlu-eo years from the death of the deceased ? A. The reason of this delay is to be certified to the registrar, and if the certificate is unsati.sfactory, ])roof is to be required by the registrar of the alleged reasons of the delay. (P. R. R. 40.) GRANT OF PROBATE. 19 Q. Does a probate granted in England confer a right to deal with personal property in Scotland ? A. Not as of course; in order that it may do so there must be what is called a notation of doniicUe, that is, it must bo stated in or upon the probate or letters of administration that the deceased was domiciled in England, and the affidavit for the Inland Eevenue must also state that the deceased was domiciled in England, and that he was possessed of personal estate in Scotland, and the value of such personal estate must be sepa- rately stated in such affidavit. In case there is personal estate also in Ireland, a separate affidavit and schedule must be filed. On production of the probate in the Commissary Court of Edinburgh, the proper officer there will indorse a certificate upon it. It will then have the same operation in Scotland as if a Scotch confii'mation (the equivalent of an English probate) had been granted. (Act of 1858, ss. 13, 14, 15, 17 ; P. E. 74.) Q. Has a Scotch confirmation any effect in England ? A. When a Scotch confirmation (i.e., a Scotch probate) is produced, and the Scotch officer has found that the deceased died domiciled in Scotland, and that probate duty has been paid upon the whole of the personal estate in England, the confir- mation may be sealed with the seal of the English com-t, and thereafter has the same effect as if probate or letters of admi- nistration had been granted in England. This sealing of Scotch confirmations or Irish grants can only be done in the principal registry. (Act of 1858, s. 13 ; see also next answer.) Q. How may the grant of a Scotch confirmation be made operative as to English personalty ? A. There may be included in the inventory of the effects of any person who has died domiciled in Scotland any personal estate situated in England or Ireland or both; and the com- missary, i.e., Scotch registrar, may find that the deceased died domiciled in Scotland, and the value of such personal estate in England or Ireland is, in such case, to be separately stated in the inventory, which inventory must be stamped for the entu^e value of the estate included therein. (21 & 22 Vict. c. 26, s. 9.) When the Scotch confii'mation has been produced, and a copy c2 20 THE LAW OF PRORATE. deposited in the principal registry in England, together with a certified cojiy of the finding of the eoniniissary that such deceased person died domiciled in Scotland, such confirmation may be sealed, and thereafter has the same effect in England as if there had been probate or letters of administration granted by the English court. (21 & 22 Vict. c. 26, s. 12.) Q. lias an English probate or grant of administration any effect in Ireland Y A. If produced in Ireland to the registrar of the Court of Probate iu Ii-eland, such probate or letters of administration will be sealed, and then have the same effect as if originally granted by that com-t ; and in the same way an L-ish probate may be sealed iu England, and will have the same effect as an English probate. (20 ct 21 Vict. c. 79, s. 95.) In this case there is no necessity for notation of domicile, and the affidavit for the Inland Eevenue will extend to the personal estate in both countries. (See also next answer.) Q. Are probates or letters of administration granted by the Irish Court of Probate recognized by English com-ts ? A. Probate or letters of administration granted by the Court of Probate in Ireland, if produced to and a copy deposited with the registrars of the Probate Di\ision in England, may be sealed with the seal of the English comi, and are then to have the same effect as if they had been granted in England. Letters of administration are not to be resealed until a certificate has been filed under the hand of the registrar of the Irish court that a bond has been given in Ireland in a smn sufficient to cover the English personal!}' ; and such seal is not to be fixed to an Irish probate or letters of administration, unless it also aj)i)ears from the certificate of the Commissioners of Inland Kevenue tliat tliey are duly stamped in respect of the English personalty. (Act of 1807, s. 95 ; Act of 1858, s. 29 ; V. U. 11. 7;j.) Q. AV'liat is meant by ji^jbate in *\f(ic simile " ? A. Where the court is unable to distinguish how much of an allcge/ specified time^ or until any specified event or contingency happened, a new grant must be made at the end of that time, or the accom- plishment of that event or contingency. Thus, if the testator ajipoints A. exeeutt^r for his Hfe, and after the death of A. appoints B. his executor, on A.'s death a second or supplemental, otherwise called a cessate, grant is made to B. So wliere ad- ministration with the will annexed has been granted to a guardian for the use of an infant executor during his minority, LIMITED GRANTS. 35 when the executor attains his majority, a cessate grant may be made to him. So where probate of the substance of a will, limited until the original will or an authentic copy is brought into the registry is granted, the grant ceases on one of these being brought into the registry, and probate of the original or the copy will then be granted. So cessate grants are necessary where administration durante absentia ov pendente lite has been granted. A cessate grant follows a grant of the whole property for a limited time or purpose. A " cwterorum " grant is a grant of the rest of the property after a limited grant of a portion of it. CHAPTER VI. EXECUTORS AND ADMINISTRATORS. Q. Wliat is an executor according to the tenor ? A. He is a person requii-ed or directed by the will to perform one or more of the duties of an executor, e. g., to pay the debts or to administer generally the estate : but not expressly nomi- nated as executor in the will. (Coote, 4.) Q. May a testator by will authorize some person to nominate an executor ? A. He may do so. (Coote, 42.) Q. A. makes a will and appoints B. his executor. B. sm^vives A., and takes out probate of A.'s will. B. makes a will, and appoints C. his executor. C. desii-es to administer B.'s estate, but does not wish to administer A.'s. Can he do so ? A. He cannot do so. If he takes probate of his own testator's will, he immediately becomes executor of the will of any testator of whom the other was sole or sm^viving executor. (Coote, 59.) Q. May one of several executors prove without notice to the others ? A. He may do so, but in this case a power is reserved by the court to the others to take probate when they apply. (Coote, 52.) d2 36 THE LAW OF PROBATE. If tliey do take probate siibseq[uently a second p:rant is taken by them, called a double probate. Either the original antII or the probate ah-eady granted may be sworn to and marked by the person taking out double probate ; and if the former course be adopted, he must attend at the registry and be sworn before one of the registrars. The executors taking out double probate are sworn in the usual manner, except that the oath shows the foi-mer grant. The engrossment of the double probate is made in the principal registry. Q. Up to what period can an executor renounce probate ? A. He cannot do so after he has intermeddled in any way with the estate ; but merely necessary acts, as orderhig the burial of the deceased, or interfering to save considerable loss to his estate, will not prevent his renouncing. The renunciation need not be under seal : it is filed in the registry, and may be retracted at any time before it is filed. Q. How should a renunciation of executorship be made ? A. According to the form appointed to be used in common form business, which need not be under seal. Min ors and infants renounce by their guardians. A committee of a lunatic may renounce on his behalf. (Cooto, 222—224.) Q. What is the effect of renunciation l)y a person entitled to probate or letters of administration in one character, when he is also entitled in another character ? A. If he renounce in the one character, he may not take out representation in another character. Thus, a next of kin cannot renounce as such, and yet take administration as a creditor. (P. E. E. 50; Coote, 225.) Q. What were tlie fonuer rights of one of several executors who had renounced probate and siu-vived his co-executors, who had proved ? A. Formerly, the sur\iving executor would liave been entitled to take out probate after the death of tlie r)tliers ; but now, where any person renounces probate, his rights wholly cease, and the right oi representation goes as if he had not been appointed executor ; and wlicnever an executor dies with- out having taken jirobate, or being cited to take out probate does not appear to such citation, his riglits as executor wholly EXECUTORS AND ADMINISTRATORS. 37 ceases, and the right of representation goes as if he had not been an executor. (Act of 1857, s. 79 ; Act of 1858, s. 16.) Q. An executor wlio has not proved a will intermeddles witli the estate, and then neglects to deal with it according to the directions of the testator. What c«u^se can a beneficiary adopt to protect his interests ? A. He can cite the executor to enter an appearance and take probate, and if the executor does not do this, he will be guilty of contempt of court and can be attached. Q. Could a married woman formerly have acted as adminis- tratrix ? A. She could not have done so, because she could not take administration without her husband's consent, as he must have joined in the administration bond. But in some cases a third person was allowed to enter into the bond instead of the husband. Since the Married Women's Property Act, 1882, a married woman can take out administration as if she were a feme sole, and her husband need not therefore join in the bond. Q. What formerly was and what is now the position of a married woman who is appointed executrix or administratrix ? A. Formerly her husband had control over the estate, and might receive and release debts and alienate the property, but by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, ss. 18, 24), she may now accept the office of executrix or administratrix, and may act therein as if she were a feme sole, and she is liable to the extent of her separate property for all breaches of trust and devastavits. Her husband's rights are therefore nothing, and his liabilities only extend to the extent to which he has been personally im- plicated in the breach of trust. Q. What are the duties of an executor or administrator in regard to inventories of the estate ? A. Any person interested in an estate, whether as next of kin, legatee, or creditor, may call upon the personal representa- tive to exhibit an inventory of the estate and render an account of his administration, but practically this jm-isdiction is very little exercised and executors are called to account in the Chancery Division. 38 THE ].A\V OY niOUATE, CHAPTER VII. PROBATE DUTY. [For Legacy, Succession, and Probate Duties, see pp. 195, 197, of "A Modern Digest of the Final Examination." The ques- tions there answered are for the most part avoided in the present chapter.] Q. State the principal cases in wliicli it is unnecessary that probate or administration should be taken out to the personal estate of a deceased ? A. (1) On the death of any officer, seaman, or marine in the royal nav}', the amount to the credit of the deceased in the books of the Admiralty for arrears of pay, wages, prize money, and other allowances may, if it does not exceed 100/., be paid, without any representation being taken out, to the per- son legally entitled to take out representation or to the bene- ficiaries. (28 & 29 Yict. c. 11, sects. 8, 8.) (2) So where the money and effects of a deceased merchant seaman or apprentice delivered or remitted to the Board of Trade do not exceed 50/,, the Board of Trade may pay same to his widow or children, or to any persons who are entitled under the deceased's will or his intestacy, \rithout probate or letters of administration being taken out. (17 & 18 Yict. c. 104, s. 199.) (3) So deposits in the sa\ings bank of a deceased person which do not exceed 50/., may be paid to the mdow or other persons entitled according to the Statute of Distributions, unless the bank has notice within one montli from the death of the depositor that probate or letters of administra- tion are about to be taken out, which must be done within two months from his death. (26 & 27 Vict. c. 87, s. 43.) (4) So a member of an industrial or provident society, not being under the age of sixteen years, may, hy writiiig, nominate any person (with certain exceptions) to whom his share in the society shall be transferred at his death, provided that the amount credited to him in the society's books does not exceed 50/., and at his death the committee of the society shall either transfer the share to the person nominated, or pay its value to the persons entitled. PROBATE DUTY. 39 (39 & 40 Yict. c. 45, s. 11, sub-s. 5.) (5) So sums not exceed- ing 50/. in building societies, loan societies, and friendly societies, are exempted from probate duty and may be paid to the persons beneficially entitled, under various acts. (37 & 38 Vict. c. 42, s. 29; 3 & 4 Yict. c. 10, s. 11 ; 26 & 27 Vict. c. 56 ; 18 & 19 Vict. c. 63, s. 31.) Q. Is the probate of a will liable to stamp duty ? A. No stamp duty on probates is now paid, but probate duty is paid upon the affidavit for the Inland Revenue, and a certificate is to be attached to the probate or letters of adminis- tration stating that the affidavit for the Inland Eevenue has been delivered, and that such affidavit was duly stamped, and stating the amount and the gross value of the estate as shown by the account. (44 Vict. c. 12, s. 30.) Q. What exemptions are there from payment of the ordinary amount of probate duty ? A. Where the whole personal estate of any person without any deduction for debts or funeral expenses does not exceed 300/., the person intending to apply for the grant of probate or letters of administration may deliver to the proper officer a notice in writing setting forth particulars of the estate, and may deposit with such officer the sum of 15.s. for court fees and expenses. If the estate exceeds the value of 100/., a further sum of 30s. must be deposited for stamp duty on the affidavit for the Inland Revenue. The payment of these duties is in full satisfaction not only for probate duties, but also for legacy and succession duty in respect of the estate. (44 & 45 Vict. c. 17, ss. 33, 36.) Q. Is probate duty ever payable on property other than per- sonalty belonging to a testator in the ordinary way ? A. (1.) It is payable upon personal property which a testator has by his will disposed of in exercise of a general power of appointment. (23 Vict. c. 15, s. 4.) (2.) So when a testator bequeaths property which is abeady subject to a direction for conversion, probate duty must be paid upon that property {Attoyney- General v. Briinniiirj, 6 Jmist, N. S. 1033) ; but it is not payable upon realty directed by the will itself to be sold. {3Iatsou v. SiciA 3 Beav. 368.) 40 THE LAM' OF PROBATE. Again, under the Customs and Inland Revenue Act, 1881, it is payable (1) on domitiones mortis cniisd, and voluntaiy gifts of jiersoualt}' made T\ithin three months of death ; and on (2) personalt}-^ voluntarily vested by the deceased in himself and another jointly, so that on his death the beneficial interest accrues by surN-ivorship to the other; and on (3) personalty passing by any voluntaiy instrument (not being a -will) whereby an interest detenninable on death is reserved to the settlor, or whereby the settlor has reserved to himself the right, by the exercise of any power, to reclaim tlie absolute interest in such property. (Sect. 38.) Q. State the rules as to the deduction of debts from the value of the personalty upon which probate duty must be paid. A. Tlie former rule was that duty must at first be paid on the total value of the personalty, and that after paying the debts a proportionate return of it might be obtained. But under the Customs and Inland Revenue Act, 1881, s. 28, if the deceased was domiciled in the United Kingdom debts due to persons resident in the United Kingdom and burial expenses may fii'st be deducted and dut}^ may be paid only on the residue of the estate. The following debts, however, may not be deducted : (1) voluntary debts payable on the death of the deceased ; (2) debts payable uuder any instrument not bond Jide delivered to the donee three months before the deatli of tlie deceased ; and (3) debts in respect of wliicli any real estate may be pri- marily liable, or in respect wliereof a reimbursement may be claimed fi'om the real estate of tlie deceased or fi'om any other estate or person. But if (under sect. 33, supra) the whole estate is sworn under 300/. debts may not bo deducted. Q. Is probate duty payable in respect of personal estate over whicli a person lias a general power of appoiiitment ? A. It is, if such person lias actually disposed of tlio properiy by will. (23 Vict. c. 15, s. 4.) Q. On the death of a trustee must probato duty be paid on the trust estate so far as it consists of personalty ? A. It need not be paid. (48 Geo. 3, c. 149, s. 35.) Q. If an administrator after the grant discovers that the PROBATE DUTY. 41 personal estate of the deceased is of larger amount tlian the sum under which it was sworn, what course should he adopt ? A. lie must make an affidavit as to the increased amount of the estate, and must give an administration bond usually in double the amount of the whole estate. The clerk of the seat then notes upon the letters of administration that the estate has been re-sworn and further security given. (Coote, 181, 182.) So both an executor and an administrator must, if the estate proves to be of greater value than the value mentioned in the certificate annexed to the probate or letters of administration, or if debts have been erroneously deducted, within six months after the discovery of the mistake deliver a further affidavit, with an account, to the Inland Revenue duly stamped with the additional amount of duty payable, and must at the same time pay interest at 5/. per cent, from the date of the original grant, or any later date determined by the commissioners, on such unpaid amount of duty. (Customs, &c. Act, 1881, s. 32.) Q. A. dies domiciled in England, and possessing French rentes, English consols, a house and furnitui-e in Paris, a share of a partnership business there, and also a leasehold house and furniture in London, and a share in a partnership in London. A. by his will executed according to English law, disposes of this property ; upon which of it wiU probate duty be pay- able? A. It will be payable on the English consols, the leasehold house and furniture, and the share of the partnership in Eng- land, but not upon the French rentes or upon any other of the French property. But foreign bonds which are transferable in this country, and are also in this country at the death, must pay probate duty. {Att.-Gen. v. Bomcens, 4 M. & W. 191.) Q. A testator died, having by his will appointed under a special power a fund to his children. He also left 1,000/. in foreign bonds and a leasehold house, and had, moreover, just before his death contracted to sell his real estate, but he died before com- pletion of the purchase. In respect of what portions of the property wiU probate duty be payable ? A. The fund appointed to the children would not be liable to 42 THE LAW OF PROBATE. duty, fis the appointment is made under a special, and not under a general, power. (23 Yict. c. 15, s. 4.) The proceeds of the real estate would be liable to duty if the contract Avas a binding one, and the vendor had no power to revoke it up to the time of his death. (See Att.-Gen. v. Bntnning, 6 Jur. N. S. 1083 ; and Watson V. Su-ift, 8 Beav. 368.) As to the foreign bonds and the leasehold house, see the last answer. Q. Is there any exemption from legacy or succession duty ? A. Yes; under the Customs and Inland Revenue Act, 1881, s. 41, where probate duty has been paid in conformity with the Act, the one per cent, legacy and succession duty payable by direct descendants or ascendants ceases to be payable ; and when the estate is swom under 300/. and the duties on the affida\it for Inland Eevenue are paid, no legacy or succession duty is payable by any persons. Q. What is the penalty for making defaidt in obtaining probate or letters of administration, or neglecting to deliver an account to the Inland Revenue ? A. The defaulter is liable to pay double the amount of duty chargeable. {Ibid. s. 40.) Q. Is an executor personally liable for the payment of legacy duty ? What course should he adopt to protect himself ? A. He is so liable, and should therefore deduct the legacy duty before paying a legac}' ; but if he does not do so he can still recover the amount back from the legatee. CUAPTER VIII. CITATIONS, CAVEATS, ETC. Q. Wliat is a citation ? A. It is a command issued from the principal registry ordering the party to wliom it issues to do some particular act, as to accept or refuse probate or administration, or to revoke a probate or administration improperly granted. (Browne, 349.) CITATIONS, CAVEATS, ETC. 43 Q. Give a common example of a citation. A. Where a person having a superior right to prove a will or take administration delays or declines to do so, the com't, at the instance of a person having an inferior right, cites the person having the superior right to take the required grant, and on his faihng to do so, decrees it to the other. (Coote, 230.) Q. If an executor holds a will hut neglects to prove it, what steps must be taken to oblige him to accept or refuse probate ? A. He must be cited to " accept or refuse the probate, or to show cause why letters of administration with the will annexed shall not be granted to the applicant." Personal service of the citation is necessary, imless otherwise ordered. The executor enters an appearance to it, and then the citation proceeds in the usual way. Q. "What steps must be taken previously to issuing a citation? A. An affidavit verifying the facts of the case must be made by the person intending to issue the citation, and a caveat must also be entered against any grant being made in respect of the estate to which the citation relates, and notice of such caveat must be sent to the district registrar of any district in which the deceased appears to have resided at the time of his death. (P. E. E. 66, 68.) Q. From which office may citations be issued, and what must be done in order that a citation may be obtained ? A. Citations can only be extracted from the principal regis- try, and no citation is to issue until an affidavit in verification of the averments it contains has been filed in the registry. (0. B. E. 13.) Q. How are citations to be served ? A. Personally when that can be done ; if not, by the insertion of a notice of the same, or of an abstract thereof, settled and signed by one of the registrars as an advertisement in such morning and evening London newspapers, and such local news- papers, and at such intervals as the judge or one of the registrars may direct. (P. E. E. 69, 70.) Q. How are citations to be served upon persons resident out of the jurisdiction ? A. Citations may be served upon parties resident out of Great 44 THE LAW OF PllOHATE. Britain and Ireland by the insertion of the same or of an abstract thereof, settled and signed by one of tlie registrars, as an adver- tisement in snc'h of the morning and evening London newspapers, and, if necessary, in such local newspapers, and at sucli intervals, as the judge or a registrar may direct. If the pai-ty cited be abroad, having an agent in England, such agent may be served with a true copy of the citation. (R. 19, C. B.) Q. AVliat is a caveat ? A. It is a means whereby a person having an interest in an estate prevents a grant from being issued without notice to himself. Caveats remain in force for six montlis, but may be renewed. They do not affect grants made on the days on which they are entered. (P. E. E. 60, 62.) Q. What coiu'se is adopted by a person who cannot obtain probate or administration by reason of a caveat ? A. He should warn the caveat, that is, give a notice to the person who has entered the caveat, recpiiring him to enter an appearance to the warning within six days, and informing him that if the appearance is not entered the grant will be made to the person ajipl^ang. (P. E. E. 63, 64, 67, 87.) Q. What must a party do who intends to oppose the grant of probate or letters of administration ? A. He must enter a caveat in tlie principal or in a district registry. If he enters it in a district registry, a copy is sent to tlio principal registry, and if lie cutors it in the principal registry, notice is given to the district registry of the district (if any) in which it is alleged that tlic deceased resided at the time of liis decease, and to any other district registry to A\liicli it may ap[)ear to the registrar of tlie princijial registry expedient to send the same. (Act of 1857, s. 53.) Q. A caveat ha\ing been entered against the gi'ant of probate or letters of administration, what course will be adopted by a person desiring to obtain the probate of a will ? A. He will proceed to warn the caveat, which ho must do in the jirincipal registry. CITATIONS, CAVEATS, ETC. 45 A warning is a notice given by tlie registrar of tlie principal registry to the person wlio has entered a caveat, that he shall, within six days after the service of the warning, enter an appearance in the principal registry to the caveat which he had previously entered, and set forth his interest, and that if he does not do so, the cornet will proceed with the grant. The appearance must be entered in the principal registry, and may be entered at any time after the sis days, provided the grant has not been actually sealed. (Browne, 304.) Q. In what offices may caveats be entered, and from which may warnings be issued ? A. Caveats may be entered either in the principal registry or in a district registry ; but warnings can only be issued from the principal registry. (0. B. R. 7.) Q. "When is probate business said to be contentious ? A. When an appearance is entered in answer to the warning of a caveat, the matter is to be entered as a cause in the com-t book, and the contentious business is thereupon held to com- mence ; and the expenses of the entry of such caveat, and the warning thereof, are, upon taxation, considered as costs in the cause. (0. B. E. 12.) Q. What course must be adopted by a person who has warned a caveat, where no appearance has been entered to the warning? A. Before he can obtain his grant he must file an affidavit (1) of the service of the warning; (2) of search for appearance ; (3) of non-appearance. Q. State some general rules as to citations. A. They can only be extracted from the principal registry, and must be preceded by an affidavit verifying the averments which must be filed in the registry. Every suit for revocation of a grant of probate or adminis- tration must commence with a citation (issued before or con- currently with the Aviit) , and calling upon the party who has obtained the grant to bring the same into the registry. (Browne, 351, 352 ; C. B. E. 13.) Q. A party having been served with a citation, when may the party having served him proceed with tlie action ? A. Before a party can proceed after the service of the citation, 46 THE LAW OK PROBATE. an appearance must have been entered by or on behalf of the party cited, or an alhdavit of personal ser\dce and of non-appear- ance must, together with the citation, have been filed in the registry. (C. B. E. 20.) CHAPTER IX. SPECIAL POINTS RELATING TO THE PRACTICE IN PROBATE CASES. Q. Give a brief description of the jurisdiction of the Probate Division. A. The Probate Division exercises voluntary and contentious jurisdiction and authority in relation to the grant or revoking probate of wills, and letters of administration of the effects of deceased persons, and determines all questions relating to matters and causes testamentary, except those relating to legacies and the distribution of residues. (Dixon's Probate Manual, 48.) Q. Wliat are the various kinds of actions which may be brought in the Probate Division ? A. (1) Actions for proving wills in solemn form, the question being whether the will or codicil is or is not, in whole or in part, valid as a testamentary instrument ; (2) administration actions, thf; question for decision in wliich is, which of two or more claimants is entitled to a grant of administration; (3) actions for the revocation of gi-ants, either of letters of administration or of probate in common form. (Tristram's Prob. Prac. 77 ; Browne's Prob. Prac. 275.) Q. State some of the grounds upon which the couii may revoke a grant of probate. A. (1) AVhere it is obtained by fraud, eitlier (a) by directly false suggestions ; or (b) concealing from the court something material, which it should have known; (2) where a false suggestion has been made in ignorance or tlu'ough carelessness only ; f)r (3) where a grant has become inoperative and useless through circumstances. (Coote, 191.) SPECIAL POINTS RELATING TO THE PRACTICE IN PROBATE CASES. 47 Q. Grive examples of each of the three sets of cases mentioned in the last answer. A. (1) An executor of a forged or revoked will obtains probate of it ; (2) a will has been discovered after administration has been taken, or a later will has been discovered after probate taken of an earlier one ; (3) a grant has passed the seal after the party applying has died ; a creditor after grant of administration has paid himself his debt and left the country. (Coote, 191 —194.) Q. In order that the court may revoke a grant to a wrong person, what is necessary ? A. A person having the right to the jiroper grant must ask for the revocation, and be prepared to take the proper grant. (Coote, 196.) Q. What is the effect of proving a will in solemn form ? A. The will cannot afterwards be disputed by any person who has been cited, and as it is usual to cite all persons interested, either under an intestacy or any other will which may have been made, the effect is to render the will practically unassailable. Q. What persons may cause executors to prove the will in solemn form ? A. The next of kin "and others," who i')reviously to the Probate Act of 1857 had such a right, are still to continue to possess it. The words " and others " include all parties whose interest is affected, such as trustees, legatees, &c. ; but a creditor is not such a person. An executor or legatee under an adverse will may cause the executors to prove in solemn form. But an executor cannot have the will j)ropounded in solemn form if he has proved it himself in common form. (C. B. E. 5.) Q. Within what time may an executor be compelled by a person interested to prove the will in solemn form ? A. Within thirty years. Q. How is the practice in the Probate Division now regu- lated ? A. By the Judicature Acts and the Eules of the Supreme Court ; and where they do not expressly vary it, the old j)roce- dure remains in force. (Judicature Act, 1875, s. 18.) 48 THE LAW OF PROBATE. Q. "Wliat special rule exists iu probate cases as to the indorse- ment on the WTit ? A. The indorsement must show whether the plaintiff claims as creditor, executor, administrator, or in any other and what character. (Ord. III. r. 5, Eules of Supreme Court, 1883.) The issue of the writ is also to be preceded by the filing of an affidavit made by the plaintiff, or one of the plaintiffs, verifying the indorsement on the writ. (Ord. V. r. 10, Supreme Court Eules.) Q. "Wliere are appearances to be entered ? A. They must be entered in London at the central office, and the central office is to give notice thereof to the probate registry. {Ord. XII. r. 3, Supreme Com-t Rules.) Q. ^ay any persons intervene in jirobate actions, and what course must persons desiring to intervene adopt ? A. Any person not named in the writ may intervene, and may appear in the action upon fihng an affidavit showing liow he is interested in the estate of the deceased. (Ord. XII. r. 23, Supreme Court Rules.) Q. "Wlio may oppose the gi-ant of probate ? A. Any party whose interest is affected may do so ; even the bare possibility of an interest is suJQficient. He does so by entering a caveat in the usual way. Before being permitted to contest the will he may be called upon b}' the party propounding it to show his interest. (Browne, 286, 287.) Q. "Wliat must a person do who is seeking to prove a will in solemn form, or to revoke the probate of a will in order to bind the persons interested in the real estate Y A. He must apply to the judge, or to a registrar in liis absence, for an order authorizing liim to cite tlio hoir-at-law, or otlier persons interested in tlie realty. (C. B. R. 78.) Such an order will not, as a rule, be granted until a statement of defence lias been delivered, or unless tlie next of kin has been already cited, or unless the party proi)Ounding tlie will files an affidavit that he intends to go on and prove the A\ill in solemn form. (Browne, 201.) Q. What persons ought to be cited when a will is about to be proved iu solemn form ? SPECIAL I'OIXTS RELATING TO THE PRACTICE IN PROHATE CASKS. 49 A. If the will relates only to personalty, the widow and next of kin must be cited, and any persons interested in any other will or codicil than that being proj)ounded. If the will relates to real estate, besides the above persons the heu"-at-law, devisees under any other will, and all other persons having or claiming any interest in the real estate. (Browne, 289—293.) Q. To what extent does probate of a will in solemn form bind the heir-at-law, devisees, and other persons interested in the real estate ? A. Wlierever proceedings are taken for pro\ing a will in solemn form, or for revoking probate, or where in any other contentious cause the validity of a will is disputed in the Probate Division, unless the will affects only personal estate, the heir-at- law, devisees, and other persons interested in the realty are to be cited to see the proceedings, and may be permitted to become parties, or intervene for their respective interests ; and where the will is proved in solemn form, or its validity is othermse decided upon, the decree of the court is binding on all persons interested in the real estate, and the probate of a will so proved is conclu- sive evidence of the validity and contents of such a vnll. (Act of 1857, ss. 61, 62.) Q. "Who may intervene in probate actions ? A. Any person not named in the writ may intervene and appear in the action on filing an affidavit showing how he is interested in the estate of the deceased. (Ord. XII. r. 23, Supreme Court Eules.) Q. What is meant by the term " interest cause " ? A. It is a suit in the Probate Di\'ision, where the legal interest of a person in the estate of the deceased is denied. It may arise as a collateral question in a testamentary cause, or as an original suit. (Browne, 327.) Q. Wliat is meant by the affidavit as to scripts ? A. Within eight days after the entry of the appearance by the defendant both plaintiff and defendant must file an affidavit as to their knowledge of every will, codicil, cbaft of a will or codicil, or written instrument made by the deceased ; and every such script in the custody, or under the control, of the person N. ' E 50 THE LAW OF PROBATE. making tlie affidavit is to be annexed tliereto, and deposited in the registn', and no party, except by leave, may inspect his opponent's affida\'it or scripts until his own affidavit has been filed. (C. B. Ks. 30, 32.) Q. Within what time must a statement of claim be delivered in probate actions ? A. Unless otherwise ordered by tlie eom-t or a judge, the plaintiff must deliver a statement of claim witliin six weeks from the entry of the appearance by the defendant, or fi'om the time limited for his appearance in case he has made default; where the defendant has appeai-ed the plaintiff is not compelled to deliver it until the expiration of eight days after tlie de- fendant has filed his affidavit as to scripts. (Ord. XX. r. 2, Supreme Court llules.) Q. "Wliat must the plaintiff do in his statement of claim when he disputes the interest of the defendant ? A. He must allege that he denies such interest. (Ord. XX. r. 9, Supreme Court llules.) Q. In case the defendant makes default in filing and deliver- ing a defence, what coiu'se may the plaintiff adopt ? A. He may proceed witli the action notwithstanding such default. (Ord. XXVII. r. 10, Supreme Court Rules.) Q. Wliat is necessary to render a plea of undue influence valid ? A. The names of the parties exercising such undue influence must be stated. (Browne, 324.) Q. "Wliat com'se should a party adopt who does not dispute the "vvill on grounds of undue influence, fraud, &c. &c., but is not certain ■whether it was duly executed or not ? A. Such a party may -with his defence give notice to the person setting up tlie will that lie merely insists upon its being proved in solemn fonu of laA\-, and only intends to cross-examine the witnesses jjroduced in sujiport of the will, and tliereupon he shall be at liberty to do so, and shall be subject to the same liabilities in respect of costs as he would have been under similar circumstances, according to tlie former practice of the Court of I'robate. (Ord. XXI. r. 18, (Supreme Comi liules.) The practice of the Court of Probate was, in case the will was SPECIAL POINTS RELATING TO THE PRACTICE IN PROBATE CASES. 51 held valid, to exempt a person giving such a notice from paying the costs of the action to prove the will in solemn form, as according to the ordinary rule he would have to do. (Browne, 334.) Q. What is meant by an " act on petition " P A. It was a method of raising by petition a cj[uestion of only medium importance. Questions as to the personal qualifications of administrators, the justification of sureties and guardianships, were the kind of questions thus brought before the court. Tlie}^ are now decided on summons. (Browne, 346.) Q. What notice of trial must be given in the Probate Divi- sion ? A. Ten days' notice of trial must be given to all parties for whom an appearance has been entered, including the i^aiiies cited, and interveners. (Orel. XXXVI. r. 14, Supreme Com't Eules ; E. 54, 0. B.) Q. May a re-hearing of a cause tried before a judge without a jury be obtained ? A. An application for the re-hearing of a cause tried before a judge without a jmy, in which the evidence has been given viva ■voce, may be made by motion within fom-teen days from the day on which the same was heard, if the court be then sitting, or if not, on the first motion day after the expiration of the fourteen clays. (C. B. E. 60.) Q. To whom is an application for a new trial to be made in the Probate Division, and how ? A. Wliere there has been a trial with a jmy, to a Divisional Court of the Probate, Divorce, and Admiralty Division, and where there has been a trial without a jmy, by appeal, to the Court of Appeal. The application is to be by notice of motion, which states the ground of the application, and is to be made within eight days after the trial. (Ord. XXXIX. rr. 1 — 4, Supremo Court Eules.) Q. May a new trial be obtained of a probate action which has been tried in the county coiu't ? A. There is an appeal to the Probate Division, upon the ground e2 r<> THE I,A\V OF P1U)1?ATE. of the mistake of the judge in point of law, or of llio admission or rejection of evidence. But upon questions of fact tliere is no appeal. (Act of 1857, s. 58; Lcalley v. Venjard, 35 L. J. Prob. 127; 1 P. & D. 195.) Q. How are applications to be made for an order for the pro- duction of papers or writings purporting to be testamentary ? A. Such applications are to be made to the judge by motion or by simimons when a suit is pending, and by motion upon affidavit when no suit is i)onding. If it can be shown that a testamentary paper is in the possession or control of any person, a subpoena for its production may be obtained by a registrar's order founded on an affidavit. (C. B. E. 73.) Q. State some cases where it is the proper course to apply for a grant of probate or administration on motion. A. (1) Where it is doubtful whether some portion of a testa- mentary document ought or ought not to be admitted to probate. In this 'case it is necessary for all the .parties to consent, other- wise an action must be brought to propound the docmnent ; (2) where an application is made for a grant by a person having an inferior right to it, and the parties having the superior right ha^•e not renounced ; (3) where the death of a testator or intestate is uncertain, and can only be proved by presumptive evidence ; (4) for a grant ad coUigonda bona ; (5) for a grant dtircDife absentia. (Browne, 428 — 433.) Q. "\Vlien will the court allow the costs of all parties out of the estate ? A. If the cause of litigation has its origin in the default of the testator, or those interested in the residue, the costs mliy be ordered to be paid out of the estate. Thus, where a testatrix ordered her will to be concealed, or where executors had no knowledge of their testator's incapacity, or where the htigation is rendered necessary by tlie state in whirli tlic deceased left his ] tapers, the costs of the unsucressful jiarly have Ijeen allowed out of the estate. (Browne, 445, 459.) (i. Next of kin imsuccessfully oppose a will on the gi'ound of the inca]taeity of the testator to make a will. Under what cir- cuiiislances will tliey be condemned in costs? SrECIAL rOlNTS RELATIXG TO THE I'KACITCK IX I'liOlJATE CASES, 53 A. If there is reasonable ground for their opposition, as, for instance, where it was induced by a statement by the medical attendant of the deceased, that he could not swear that the deceased was in full possession of his faculties, they will not be condemned in costs. (Browne, 432, 433.) If there is no reason- able ground for opposition, they will be condemned in costs. Q. An executor propounds the will of his testator in an action for probate in solemn form ; the testator is pronounced to bo insane, what will be the probable order of the court as to the costs of the executor ? A. If the executor did not know the testator was insane at the date of the will, he will be entitled to receive his costs out of the estate, on the ground that it was testator's own fault that the litigation took place. [Boughton v. Knight, L. E. 3 Prob. Gl.) Q. State some of the chief rules relating to motions in probate matters. A. Cases for motion are to set forth the style and object, and the names and descriptions of the parties to the cause, the pro- ceedings already taken in the cause, and the dates of the same. If the cases are deficient in any of the above particulars, the same are not to be received in the registry without permission of one of the registrars. On depositing the case in the registry and giving notice of motion, the affidavits in support, and all original documents referred to in such affidavits, or to be referred to by counsel on hearing of the motion, must also be left in the registry ; or in case such affidavits or documents have already been filed in the registry, the same must be looked up and deposited with the proper clerk, in order to their being sent with the case to the judge. Copies of any affidavits or documents to be used in support of the motion, are to be delivered to the other parties to the suit. (C. B. Es. 124—127.) Q. State some of the general rules relating to affidavits in the Probate Division. A. They are to be di-awn in the first person, and the occupation and true place of abode of every deponent is to be inserted. No affidavit will be admitted in which any material part is 54 THE LAW OF PUOHATE. \\Titteii ou an erasure or the jm-at, or in which there is any interlineation or erasure. "VMiere made by a bhud or illiterate person, the pei-son before whom the affida\'it is made is to state in the jui-at that it was read over in the presence of the person making the same, and that such person seemed perfectly to understand it and also made his or her mark, or wrote his or her signature, in the presence of tlie i>arty before w'hom the affida\it is made. (P. R. Es. 51—58.) ( 55 ) THE LAW OF DIVORCE. CHAPTER I. JURISDICTION. Q. Explain the term domicile. A. Domicile is a person's fixed and permanent home. (See Modern Digest, p. 82.) Q. What are the various kinds of domicile recognized bylaw? A. (1) Domicile of origin; (2) domicile by law; (o) domicile by choice. Q. What is domicile of origin ? A. This is the place where a person's parents are domiciled when he is born. This domicile lasts through a person's life, so long as he has not actually acquired another domicile. Whenever an acquired domicile is lost, the domicile of origin reverts. Q. What is a domicile by law ? A. This is a domicile conferred by the law, independently of a person's choice, and other than his domicile of origin. The domicile of the husband is that of the wife by law. Q. What is domicile by choice ? A. This is domicile which arises througli a person's own choice. The requisites of such domicile are, the intention to per- manently reside in a place, and the having actually taken up one's abode in such a place. Q. What is the importance of domicile in divorce matters ? A. (1) The law of the domicile regulates the capacity of 56 DIVORCE. parties to contract marriage; tliat is, unless tlic law of the countrv whore the parties are doniicilcil allows them to marry, their mairiage will not be good wluTover contracted. (2) English coiu'ts recognize the validity of a divorce by the law of the country ■\\here the parties are domiciled, upon grounds wliich might not be good according to English law. {HfO'vey v. Faniic, 8 App. Cas. 43.) ('3) The domicile of foreigners being fixed in England, the English courts have jm-isdiction to gi-aut a divorce of their maniage; but even penuanent residence is now considered to be sutftcient to fomid this jurisdiction over foreigners. {Nihoyet v. Niboyef, 3 P. D. 52 ; 4 P. D. 1.) Q. AVliat -vN-ill cause the loss of a person's (1) domicile of origin ; (2) domicile of choice ? A. The domicile of origin will not be lost merely by an abandonment of such domicile, but there must, in addition, be the acfpiisition of a new domicile. A domicile of choice ^^ill be lost by simple abandonment ■without the acquisition of a new domicile, and on such abandon- ment the domicile of origin reverts. Q. How A\ill the following matters affect tlie domicile of a person whose domicile of origin was English? (1) being sent to Gennany on the diplomatic service ; (2) permanent residence in the Engadine for the pm-poses of health ; (3) departui'e from England to avoid the claims of creditors ? A. None of these matters will of themselves cause a change of domicile. There must be a vohmtary acquisition of another domicile in order that the domicile of origin may be lost. Q. AV^hat are the matters over which the Divorce Division has jm'isdiction? A. Suits for (1) dissolution of marriage; (2) nullity of mar- riage ; (3) judicial separation ; (4) restitution of conjugal rights ; (5) jactitation of man-iage. And also the following matters incidental to, and arising out of, the above proceedings: (1) alimony and maintenance; (2) custody of children ; (3) damages from an adulterer ; (4) settlement of property ; (5) reversal of a decree of judicial separation, and of a decree nisi for a divorce. (Dixon's Manual of I'rob. 2, 3.) JURISDICTIOX. 57 Q. What are said to be the four elements to be considered in questions arising as to the jurisdiction of the Divorce Court ? A. They are said to be by Mr. Browne (the Law of Divorce, p. 2, 4th ed.), (1) allegiance; (2) the place of marriage; (-3) the place of domicile ; (4) the place of the delictum. But probably the allegiance of the parties has nothing to do with the jurisdiction. All the recent decisions turn upon domicile or permanent residence : so probably the place of the delictum has nothing to do with it. Q. Distinguish allegiance from domicile. A. Allegiance is the tie between the subject and the state of which he is a member. It regulates his political status and jmblic duties. Domicile regulates a man's civil status and his rights and liabilities as a private citizen. Q. Will an English court divorce a Mormon husband who is domiciled in England ? A. No : the English com't will not recognize as a valid marriage one contracted in a country where polygamy is laAvful between a man and a woman who profess a faith allowing polygamy. {Ili/de v. Ili/de, L. R. 1 P. & D. BiO.) Q. A. and B., Portuguese subjects domiciled in Portugal, and first cousins to each other, came to England and went through a form of marriage before a registrar ; they retui-ned to Portugal shortly afterwards, their domicile having always been Portuguese. By the law of Portugal a marriage between first cousins is illegal as being incestuous, but may be celebrated under a papal dispensation. What view will be taken of the marriage by an English court ? A. The marriage will be void in an English coiu-t, the capacity of parties to marry being regulated by the law of their domicile ; but where the /ntsbaiid was domiciled in England, in a case, with that exception, precisely similar to the one in the question, the marriage was held valid. {SoUomaycr v. De Barros, 2 P. D. 81 ; 3 P. D. 1 ; 5 P. D. 94.) Q. What law or laws will regulate the validity of a marriage abroad of persons domiciled in England ? A. The capacity of the parties to marry is regulated by the English law ; thus, a man domiciled in England cannot contract 58 DIVORCK. a legal marriago with liis deceased -wife's sister in a country where such marriage is permitted. {Brook v. Brook, 9 H. L. Cas. 220.) The form of man-iage must be iu accordance A\itli tlie law of the place where it is contracted. (Si/noiiin v, Maillac, 2 S. & T. 77; 29 L.J. Mat. 07—105.) Q. A., a domiciled Scotcliman, marries in London 13., an English woman, then domiciled in England. The parties after the marriage go to Scotland. Her husband there commits adulter3\ By Scotch law the wife may obtain a divorce upon the ground of the husband's adulter}'. Tlic wife does obtain such a divorce, and tlic liusband comes to England and marries another Englisli woman, the first wife being still alive. The second wife then brings a suit for a declaration of the nullity of the second marriage on the ground that, according to English law, the first marriage was not hn\' fully dissolved, will the second wife succeed ':' A. She will not succeed. English com-ts recognize as valid a divorce which the courts of the country wliero the parties are domiciled have decreed, although for a ground which would not in an Englisli court be considered sufficient, {llarvci/ v. Fariiie, 6 P. D. 35 ; 8 App. Ca. 43.) Q. Has the court jurisdiction to dissolve the marriago of an Englishman who was married abroad, and wliose wife, after marriage, always resided abroad, and A\-as accused of adidtery committed there ? A. Provided that tlio husband is domiciled, or even perma- nently resident, in England, the court has jurisdiction to grant a divorce. The place of the delictimi and the residence of the wife are alike immaterial. In law she is prcsmned to be resi- dent ^vith her husband. {Nibof/et v. Nibot/ef, nupra; Brodie v. Brodie, 30 L. J. P. & M. 185.) Q. If a respondent or co-respondent desires to raise an objec- tion to the jurisdiction of the com't, what com'se should ho adopt r* A. lie should appear to the citation under protest, and within eight days file in the registry liis act on jjctition in extension of such protest, and on the same day dehver a copy .lUHISDICTION. 59 thereof to tlio petitioner. After the entry of an absolute appear- ance to the citation a party cited cannot raise any objection as to jurisdiction. (D. 11. 22.) Q. "Will a suit for dissolution lie against a wife who ]ias become insane since the acts on wliich the petition is grounded ? A. A suit will lie notwithstanding the lunacy of the respon- dent. {Jlorda/oit v. Mordauiit, L. E. 2 P. & D. 103 ; 2 H. L. Div. App. 374 ; Mordaunt v. Moncrieff, L. E. 2 H. L. Sc. App. 374 ; 43 L. J. P. & M. 49 ; 30 L. T. N. S. 649.) Q. The wife of a lunatic commits adultery. May any pro- ceedings be taken, and by whom ? A. The committee of the lunatic may bring a suit for judicial separation, and probably for divorce. ( Woodgcde v. Taylor, 30 L. J. P. M. & A. 197; ParnellN. P., 2 Phill. 158; D. E. 19G.) Q. What is meant by a protection order ? A. Wliere a wife has been deserted by her husband, she may, at any time after such desertion, apply to a police magistrate within the metropolitan district, or to justices in petty sessions, or to the Probate, &c. Division, for an order to protect any money or j)roperty which she may acquire or become possessed of after such desertion, against her husband or his creditors ; and an order may be made protecting her earnings and property since the commencement of the desertion ; and such earnings and property are to belong to the wife as if she were 2, feme sole, but the order must be entered, if made by a police magistrate or the justices, with the registrar of the county court. During the continuance of the order the wife is in the like position in all respects with regard to property and contracts, and suing and being sued, as if she had obtained a judicial separa- tion. (Act of 1857, s. 21.) By the Act of 1858, s. 7, the above provisions have been extended to property to which the wife is entitled as executrix, administratrix, or trustee ; but since the Married Women's Property Act, 1882, the value of the above provisions is, of com^se, considerably decreased. Q. What order may be made by a court or magistrate before whom a husband has been convicted for an aggravated assault upon his wife ? A. The coiu"t or magistrate may, if satisfied that the future CO DIVORCE. safety of the wife is imperilled, order tliat she shall no longer he hound to cohahit wth her hushand ; and such order will amount to a decree of judicial separation, and it may fui"ther provide for the payment of a Aveekiy alimony to the wife and for the custody of the children. The weekly alimony may he varied from time to time, and no order for alimony or as to the custody of the childi-en is to he made in favour of a wiie who has been proved to have committed adultery, unless such adultery has been condoned ; and any such order may be discharged ou proof that the wife has, since the making thereof, been guilty of adultery. All orders made under these jiowers are subject to an appeal to the Probate, &c. DiAdsion. (Mat. Causes Act, 1878, s. 4.) Q. How can a married woman whose husband has deserted her most easily obtain maintenance ? A. By summoning him before two justices or a stipendiary mao-istrate, who may, on being satisfied of the desertion and the means of the husband, order him to pay an}- weekl}- sum to her not oxceetling 2/., wliith sum may from time to time be iucreased or diminished. (49 i^ 50 Yict. c. 02.) Q. Are there any practical steps whicli may be taken by a person whose legitimacy is dispiited before the event has arisen, when it becomes important to establish it ? A. If he is a natural-bom British subject or person claiming to be so, and his right depends on his legitimacy or the validity of a marriage, he may apply to the Divorce Court by petition for a declaration that he is the legitimate child of his parents, or that the marriage of his father and mother, or his grandfather and grandmother, was valid, or that his own marriage was valid. lie may also apply for a declaration that he is a natural-born subject. (21 & 22 Vict. c. 93.) Q. Who is a necessary party to such proceedings ? A. The Attorney-General ; and tlio decree will not prejudice any person, unless he is cited, or derives title tlirongli a pariy cited. (Ihid.) REQUISITES, ETC. OF MARRIAGE. 61 CHAPTER II. REQUISITES, ETC. OF MARRIAGE. Q. What are the requisites of a legal marriage ? A. (1) It must be in pursuance either of (a) banns; (b) common license ; (c) special license ; (d) registrar's certificate with license ; (e) registrar's certificate without license. (2) In a parisli church, or public chapel, or the registrar's office, or some building registered for the solemnization of marriages, except when solemnized by special license, (3) Between single persons not being within the prohibited degrees of consanguinity or affinity. (4) Of sound mind and able to perform the duties of matrimony. (5) The consent of the parents or guardians must be given if the parties are minors. And (6) the marriage must take place between 8 a.m. and 3 p.m., unless a special license is obtained for it to take place at another time. A marriage induced by fraud will be void if tlie fraud is the only inducement, or if there is so much duress and fear as to cause the consent to be merely apparent, and not real. {Poiis- moiith's case, 1 Hagg. Eccl. 356 ; Scoft v. Sebright, L. E,. 12 P. D. 21 ; 56 L. J. P. D. & A. 11 ; 35 W. E. 258.) Q. Which of the above-mentioned recj[uisites are always essential to a valid marriage ? A. Numbers 3 and 4, and the marriage is void when they are wanting, whether known or unknown to be wanting by both or either or neither of the parties : but as to numbers 1 and 2, if both of the parties know that they are either deficient or wanting, then the marriage is void ; but if neither of them or only one of them knows it, the marriage will be valid, tliough penalties may be incurred. Q. What is a special license ? A. It is obtained from the Archbishop of Canterbury alone, the stamp on which is 51., and it authorizes the parties to bo married at any time, in any church or chapel, or in any convenient place. (Browne, 60.) 62 DIVORCE. (^. AMiat is a common lioonso, and liow is it obtained ? A. It is one given by the bishop of the diocese, and is obtained from his suiTogate, i.e., a person who is the substitute of the bishop's chancellor. In order to obtain the license one of the parties must personally swear that he or she believes there is no impediment to their man-iago ; tliat one of the parties has resided within the parish witliin wliich the marriage is to be solemnized for fifteen da3-s immediately preceding ; and that the consent of any persons whose consent is requii'ed has been obtained, or that tliore is no such person. The marriage must be solemnized within three montlis from the grant of tliis license. (Bro-v^iie, 61, 02.) Q. If a license is procui'ed by fraud, is the marriage solem- nized thereby affected ? A. It is not affected unless both parties are privy to the fraud ; and where a wife imposed on her husband by a false description of her name and condition, the man-iage was held valid. (Browne, 63.) Q. Wliat effect has a publication of banns in a false and improper manner upon the subsequent mamage ? A. The marriage is valid miless botli of the parties knew of the improper publication; but wliere tlie banns are read in a false name, unless such name is an assimied name, the marriage will be void — certainly if this is done with the consent of both parties. (Browne, 64 — 68.) Q. AVliat is the procedure on maiTiage by a superintendent registrar's certificate "without license ? A. Notice must be given to the registrar of the district within wliicli both persons liave dwelt for not less tlian seven days, or if they have dwelt in different districts, then to the registrar of each district of their intention to marry. This notice states the churcli or other building in wliich the marriage is to take place ; and the person giving the notice must make a solemn declaration that he or she believes there is no impediment to their mairiage and of the prDper residence as aforesaid, and if any consent is necessary that such consent has been given. REQUISITES, ETC. OF MARRIAGE. 63 This notice is suspended for twenty-one days in the office of t]ie registrar, and after that the registrar issues liis certificate giving leave to the parties to marry, and the marriage may take phice Avithin three mouths from the original notice. It may be celebrated not only in a parish church, &e. but also in some building certified as a place of religious worship and registered for solemnization of marriages, but the registrar must be pre- sent ; or the marriage may take place at the ofiice of the registrar. (G & 7 Will. 4, c. 85 ; Steph. Com. 8th ed. vol. 2, 250—254.) Q. State the proceedings on marriage by a registrar's certifi- cate with license. A. The proceedings are the same as in the last answer, except that if the parties live in different districts notice need only be given to the registrar of one of those districts. Secondly, the period of residence is fifteen instead of seven days ; thirdly, the notice need not be fixed in the registrar's office ; fourthly, the certificate may be obtained after the expiration of one whole day (instead of twenty-one days) next after the entry of the notice. {Ibid. ^54, 255.) Q. How may marriages of British subjects abroad be solem- nized ? A. Such marriages will be valid if solemnized according to the forms of the place where contracted. Also marriages solemnized by a minister of the Church of England in the chapel or house of a British ambassador, or in the chapel of a British factory, or in the house of any British subject residing at such factory, or within the lines of a British army abroad, are as valid as if solemnized in the British do- minions in due form of law. (4 Greo. 4, c. 91.) Also marriages may be solemnized at British consulates abroad. (12 & 13 Vict. c. 68.) Q. Where may marriages be celebrated ? A. (1) With a special license, in any chm'ch, chapel, or other convenient place ; (2) with a common licence it must be per- formed in a chiu-ch or a public chapel wherein banns may be lawfully pubhshed; (3) with the licence or certificate of the registrar it may be performed in the church, chapel, registered 64 DIVORCE. building or other place spacified in the notice on the certificate. (Browne, 73.) Q. How will the lunacy of one of the parties affect a maiTiage ? A. It will be void. (Browne, 79.) CHAPTER III. GROUNDS FOR DIVORCE, JUDICIAL SEPARATION, ETC. Q. On what ground may a husband present a petition for divorce from his wife Y A. On the ground of adultery, which must be post-nuptial and not ante-nuptial. But acts of adultery, subsequent to a juilieial separation, ^^ill suffice on the petition either of husband or wife. Acts of adultery subsequent to the petition ma}' be charged by filing a supplemental petition. Q. Upon what ground may a wife present a petition for divorce from her husband ? A. (1) Incestuous adultery; (2) bigamy with adultery; (3) rape ; (4) sodomy or bestiality ; (5) adultery and cruelty ; (6) adultery and desertion without reasonable excuse for two years or upwards. (M. C. A. 1857, s. 27.) Q. Are the parties to divorce proceedings competent wit- nesses ? A. Yes : the parties themselves and their husbands and wives are now competent witnesses. No party is, however, obliged to confess adultery, unless he or she has already given evidence in disproof of the alleged adulter}'. (32 & 33 Vict. c. GS.) Q. What is meant Ijv incestuous adultery ? A. Adultery committed by a Imsband witli a woman witli wliom, if his wife were dead, he could not la-wfully contract mamagf, by reason of her being within the prohibited degrees of consanguinity or affinity. {I hid.) Tlie prohibited degrees are those set fortli in the Prayer Book. GROUNDS FOR DIVORCE, JUDICIAL SEPARATION, ETC. 65 Q. On what grounds may a decree for judicial separation be obtained ? A. It may be obtained either by the husband or the wife on the ground of adultery, or cruelty, or desertion without cause for two 3^ears or upwards. {I/)id. ss. 7, 16.) Q. Describe some kinds of cruelty within the meaning of the foregoing answer. A. The cruelty must be such as to endanger the life, limb, or health of the complainant. Bad temper, rudeness, and even passion if it does not threaten bodily harm, do not amount to cruelty ; to enable a wife to obtain a separation on this ground there must be ill-treatment and personal injury, or the reasonable apprehension of personal injury induced by tlireats. The test of legal cruelty is, whether the acts render future cohabitation unsafe. Compelling the wife to lead the life of a prostitute, or know- ingly communicating to her a venereal disease, or spitting on her, is cruelty. Mere insult is not. Acts of cruelty to children, committed in the presence of the mother, may amount to cruelty to her if they so wound her feelings as to be dangerous to her health. (Browne, 32 — 45 ; Dixon's Manual, 13, 14.) Q. Give some account of what will amount to desertion within the meaning of the Divorce Acts. A. Mere separation will not be sufheient, and for j)urposes of business the departm-e of the husband is sometimes allowed for more than two years. So when the separation is not voluntary, as when the husband is sent to prison, there is no desertion. So separation by mutual consent will not be desertion. (Browne, 45—53.) Conclusive evidence of gross improprieties by the wife are a reasonable excuse for separating from her. Q. Define bigamy within the meaning of the Divorce Acts. A. It is defined to be every marriage of any person being married to any other person during the life of the former husband or wife, whether the second maniage has taken place N. F 66 DIVORCE. Avitliin tlio dominion? of tlie Crown or elsewhere. (Act of 1857, s. 29.) There is no exception in the Divorce Act, as in the 9 Geo. 4, c. 31, s. 22, in lavoiir of a person marrying a second time, whose Imsband or wife lias been continually absent for seven years immediately preceding the second mamage, and has not been known by sucli person to be living witliin that time. Q. For wliat may a petition for nullity of marriage be pre- sented ? A. It must be for grounds existing at the time of the mar- riage, as no impediment arising after marriage is a ground. Q. By whom may such a petition be presented ? A. By husband or wife, or by the wife's father where the wife is a minor. So a minor may institute such a suit through his fatlier as guardian, or a father may do so in his o^vn right, even though contrary to the wishes of the minor. (Browne, 58.) Q. "\Vliat is the rule as to the time T;\dtlnn which a suit for nullity of marriage should be brouglit Y A. As a rule the petitioner must be prom})t in bringing such a suit, and even if he proves his case he will not succeed if the suit has been brought for indirect motives. (Browne, 54.) Q. Wliat is the ground of a petition for the restitution of conjugal riglits ? A. That (me of tlio married persons has withdi-awn from living witli the other without lawful cause. The decree is that tlie i»arty wit hiLra wing return to cohabita- tion. (Browne, 88.) Q. "Wliat must be proved in such a suit ? A. The marriage and tlie withdrawal without just cause from cohabitation. Adulte'ry of the petitioner will be just cause. Q. How was and how is u decree for the restitution of con- jugal riglits to be enforced Y A. Formerly it was enforced by a ^vi'it of attachment, but by the Matrimonial Causes Act, 1884 (47 & 48 Vict. c. 68), it is ])rovided that such a decree shall not be enforced by attachment, but the court may order the respondent, being the husband, to make periodical payments to the wife, to be enforced as an order GKOUNDSFOR DIVORCE, JUDICIAL SEPARATION, ETC. 67 for alimony ; and security may he ordered to be given by. the husband, the deed, if necessary, to be settled by one of the con- veyancing counsel to the court. If the wife is respondent, and it appears that she is entitled to any property or is in receipt of any trade profits or earnings, the coiu't may order a settlement for the benefit of the petitioner and the chikben of the marriage, or may order periodical payments for the benefit of the same people. Further, if the decree for restitution of conjugal rights is not complied with, the respondent is deemed to have been guilty of desertion without reasonable cause, and a suit for judicial separa- tion may be forthwith instituted and a sentence given, although two years may not have elapsed since the failure to comply with the decree for restitution ; and if the husband respondent has also been guilty of adultery, the wife may present a petition for dissolution of marriage. {Ibid. ss. 2 — 5.) Q. Wliat is a suit for jactitation of marriage ? A. It is a suit brought to condemn to perpetual silence a per- son who boasts that he or she is married to the other. (Browne, 90.) Q. What are the absolute defences to a petition for dissolution of marriage ? A. (1) Denial of the facts alleged in the petition; (2) conniv- ance ; (3) condonation ; (4) collusion. (Browne, 92.) Q. "What are the discretionary defences to such a suit ? A. (1) Adultery of petitioner; (2) unreasonable delay in pre- senting or prosecuting the petition; (3) cruelty to the other party; (4) desertion or wilful separation before the alleged adultery with- out excuse ; (5) wiKul neglect or misconduct, such as to have con- duced to the adultery complained of. (Browne, 62.) Q. What is connivance ? A. It is the consent of the petitioner to the act charged, whether that consent is active or passive. Mere inattention is not consent. If the husband wilfully abstains from taking any steps to prevent the adulterous inter- com-se which, from what passes before his eyes, he cannot but believe, or reasonably suspect, is likely to occur, he is guilty of connivance, although there may be no corrupt intention on his f2 68 DIVORCE. part. (Browiip, 94, 95 ; Gipps v. Gipps (11. of L.), 33 L. J. r. M. .^ A. IGl.) Knowledge of and privity to the actual commission of adultery need not be proved ; such extreme negligence as to the conduct of a wife, and such encouragement of familiar intimacy as aro likely to lead to an adulterous intercourse, are sufficient. {Gilpin V. Gilpin, 3 Hagg. 150.) Q. A husband petitions for a divorce on the ground of his wife's adidtery with A. A. agi*ees to pay the husband a simi of 3,000/. for withdi'awing the petition, but there is no stipulation as to tlie future conduct of the wife, and the husband does not resume cohabitation ; the wife and A. again commit adultery, and the husband presents another petition. Will he succeed ? A. lie ^^ill not succeed ; on the ground tliat he was guilty of connivance. {Gipps v. Gipps, supra.) Q. Wliat is condonation ? A. It is forgiveness of a conjugal offence witli full knowledge of all the circumstances, and is a question of fact, not of law. (Browne, 101.) Q. Is there any distinction between condonation on the part of a husband and a wife ? A. Yes ; a less amount of evidence of forgiveness by the hus- band ^vill bar him from a subsequent suit than on the part of the wife of her liusband's misconduct. " A great distinction respecting condonation exists between a husband's adultery and a wife's adultery, and nnich tliat would be considered culpable in a husband, is lield j^raiseworthy in a wife." (Browne, 101.) Q. What must be proved by a person raising the defence of condonation ? A. That tlie injured party liad certain knowledge of particular acts of adultery, such as could found a divorce, but nevertheless cohabited aft(3rwards with tlio guilty party. (Browne, 102.) Q. AVHiat is meant by saying that all condonation is condi- tional ? A. AVHiere such acts as cruelty and desertion have been con- doned and subsequent adultery is committed, tlie adultery revives the previous cruelty or desertion, and will enable the wife to GROUNDS FOR DIVORCE, JUDICIAL SErAHATION, ETC. GO obtain a divorce and not only a judicial separation {Boslock v. Bosfock, 27 L. J. P. & M. 86 ; Blandford v. Blandford, L. R. 8 P. D. 19) ; but where there had been an agreement before the latter ojffence that every prior offence should be considered as condoned, and in any proceedings by either party against the other in respect of future causes of complaint no offence com- mitted before the date should be pleaded or be admissible in evi- dence, it was held that the subsequent adultery by the husband did not revive the Avife's right to complain of cruelty committed before the deed so as to enable her to obtain a dissolution of the marriage. {Rose v. Rose, L. R. 7 P. D. 275 ; 8 P. D. 98.) Q. "What is meant by collusion ? A. It was formerly used in the sense of connivance, i.e., a conspu'acy between the parties to commit the offence, but it now means, under the Divorce Acts, a conspu-acy in presenting or prosecuting the petition, and applies where there was no conni- vance in the original ground for petition. (Browne, 111, 112.) Q. Give examples of collusion. A. Where a husband before and after the institution of the suit had subsequent interviews with his wife, and had then given her money, and urged her not to oppose the suit. {Barnes V. Barnes, 27 L. J. P. & M. 4 ; L. R. 1 P. & D. 505.) An agreement between the parties to a divorce suit to withhold any relevant evidence from the court is collusion. (Browne, 113.) Q. The adidtery of the petitioner is a discretionary ground of defence. In what cases will the court exercise its discretion in favour of a petitioner ? A. The cases are thus summarized by Mr. Browne (p. IIG) — (1) When the adultery is committed in ignorance of fact, as where a wife induces her husband to believe that she is dead, and he marries again — when the comi held that ignorance was innocence; or of law, as when a husband after decree nisi believes he is at liberty to marry again. (2) When the adultery is committed in consequence of the violence and threats of the petitioner, the husband. (3) When committed by the petitioner to the knowledge of the respondent, and long since pardoned and condoned. 70 DIVORCE. Q. Wliat will he a valid ground of excuse for delay in com- mencing a suit for divorce ? A. "Want of means has heen held a valid excuse. {Good v. Good, 1 Curt. 775.) Absence of the respondent (the wife) in America, and inability of the husband in consequence of his illness to attend to any business. {IIear)j!^;/f/e»/e lite be increased or reduced in amount ? A. Yes ; it may be oitlier increased or reduced on a new peti- tion, presented either by the wife or husband respectively, on the ground of tlie increase or decrease of tlie husband's means. (Browne, 180.) Q. How long does sMmony pendente lite last? A. In suits Avhere tlie wife is respondent it ceases when the adultery of the wife has been finall}' established, though if there is an appeal alimony is payable to the wife pending it. (BroAvne, 181, 182.) Q. What is peiTnanent alimony ? A. It is a gross sum of money, or annual simi for any term not exceeding the Avife's o-wn life, which the court is empowered, under sect. 32 of the Act of 1857, to secure to the wife on a decree for dissolution of maniage, having regard, in fixing it (1) to her own fortune (if any), (2) to her husband's means, and (3) to the conduct of the parties. The court has the same power to give pennanent alimony in a suit for judicial separa- tion, by virtue of the jm'isdiction it has inherited from the ecclesiastical courts. If the husband has no property out of which such a gross or annual sum can be obtained, the court may make an order for payment to the wife of such monthly or weekly sums as it thinks reasonable. (Act of 18GG, s. 1.) Q. At wliat stage of tlie proceedings will permanent alimony be decreed? A. The application cannot be made till after the decree nisi, and miLst be made within one month thereafter. (D. R. 95, 96.) The order must be embodied in tlie decree dissolving tlie mar- riage {Charles v. Charles, L. 11. 1 P. & D. 260 ; 36 L. J. P. & !M. 17) ; but an order may be made even after the decree abso- lute has been pronounced. {Bradley v. Bradley, L. W. 3 P. D. CUSTODY OF CHILDREN ALIMONY SETTLEMENTS. 75 47; 47 L. J. P. D. & A. 53 ; 39 L. T. N. S. 203 ; 2G W. II. 831.) Q. When may the wife apply for permanent alimony wliere she has obtained a decree of judicial separation ? A. A wife who has obtained a decree of judicial separation and has previously filed her petition for alimony pendente lite, although no alimony has been allotted to hev pendente lite, on the decree for judicial separation being confirmed on appeal, or on the expiration of the time for appealing, if there be no appeal, may apply to tlie coiu-t by motion for permanent alimony, first giving eight clear days' notice to the husband or his solicitor of such application. (D. E. 91, 190.) Q. How are applications for alimony dealt with ? A. They are referred to one of the registrars, who investigates them, and who may require evidence, either oral or by affidavit, and the attendance of the husband for the purj^ose of being examined or cross-examined. (D. R. 191.) Q. Is there any distinction in amount between permanent alimony and alimony pendente lite ? A. The former is always larger than the latter, being some- times one-third and sometimes one-half of the joint incomes. It generally commences from the date of the sentence. (Browne, 184, 185, 187.) Q. What amount of arrears of alimony will be enforced ? ^. As a rule only one year's. (Browne, 189.) Q. May permanent alimony be increased or reduced ? A. It may be either increased or reduced on an alteration taking place in the husband's circumstances. (Browne, 190 — 192.) Q. What are the powers of the com-t in relation to making or varying settlements ? A. (1) Where the eoiu't has pronounced sentence of divorce or judicial separation, if it appears that the wife is entitled to any property, the court may, if it thinks fit, order a settlement thereof to be made for the benefit of the innocent party and the children, or any of them (20 & 21 Vict. c. 25, s. 45) ; but under this provision it was held that there was no power to alter existing marriage settlements, and therefore, by 22 & 23 Yict. 76 DIVOKCE. c. Gl, s. 5, it was provided that the court might, after a final decree of nullity of marriage or dissolution, inquire into the existence of anto-nuptial or post-nuptial settlements, and make such orders with reference to the application of tlie propei-ty settled, either for the benefit of the childi-en or their parents, as it thinks fit. But it was lield that even this provision did not apply where there were no children of tlie maniage li^ing at the time of the decree, and therefore, by 41 Vict. c. 19, s. 3, it was pro\'ided that the coiu-t might exercise the powers of sect. 5 of the 22 & 23 Vict. c. Gl just mentioned, notwithstanding that there Avere no children of the marriage. Q. Has the court power to deal with settlements in cases of judicial separation ? A. It has no such power. CHAPTER V. DIVORCE PRACTICE. Q. How are divorce proceedings c6mmenced ? A. By a petition, which must be accompanied by an affidavit verifying the facts of which the petitioner has personal know- ledge, and deposing as to his or her belief in the trutli of the other facts alleged. Such affida\4t must be filed with the petition, and where the petition is seeking a decree of nullity, or separation, or divorce, or in a suit of jactitation, the affidaAit is also to state that no collusion or connivance exists. AVith tlie petition and affidavit is to be extracted a citation to !)(• personally served Avitli a certified copy of the petition on the respondent and co-respondents. (P. II. ], 2, 3, 8, 10, 11, 12.) Q. Wliere a husband files a petition for divorce, is he obliged tf; make the alleged adulterers co-respondents ? A. He is obliged, unless he obtain leave to the contrary, an DIVORCE PRACTICE. 77 application for whicli must be made by motion founded on affidavit. If tlie name of any of tlie alleged adulterers is unknown to the petitioner at tlie time of filing the petition, the same must be supplied as soon as known, and application must be fortliwith made to one of the registrars to amend the petition by inserting such name. (D. E. 4 — 6.) Q. Subject to what conditions may a person sue in fonnd paiipen's ? A. Only by leave, to be obtained on showing that a case has been laid before counsel, who is of opinion that there is reason- able ground for proceedings. There must also be an affidavit of the party or his solicitor, that the case contains a full and true statement of all the material facts, and' a further affidavit of the party applying that he or she is not worth 25/. after payment of debts, with the exception of wearing apparel. (D. 11. 25, 26.) Q. "Wliat is the rule as to setting out the alleged act of adultery in the petition ? A. All the acts of adultery or cruelty, &c., on which the petitioner relies must be set forth in the petition. Q. What is a citation ? A. It corresponds in some respects with the writ of summons in common law ; it is a document directed to the respondent or co-respondent, and commands them to appear within a certain time mentioned, and warns them that in case of default the matter will be proceeded with notwithstanding their absence. (Browne, 223.) Q. Can substituted service of a citation be allowed? A. Where personal service cannot be effected, an application , may be made to substitute some other mode of service. (D. R, 14.) But substituted service will not be easily granted, and every effort must be made from relatives and others to obtain the addi^ess of the parties. (Browne, 226.) Q. Within what time is appearance to be entered to a citation? ^. As a rule eight days is fixed in the citation, but an appearance may be entered at any time before i)roceediugs have 78 DIVORCE. been taken in default, or even afterwards if leave is obtained on summons from the registrar. (D. 11. 20 — 185.) Q. What course must a respondent or co-respondent adopt who desii-es to dispute the jurisdiction of the comt ? A. Such person must enter an appearance under protest, and witliin eight daj'S file in the registry his or her act on petition in extenuation of such protest, and on the same day deliver a copy to the petitioner. After the entry of an absolute appear- ance to the citation no objection can be raised as to jurisdiction. (D. R. 22.) Q. Within wliat time must tlie answer of the respondent or co-respondent be filed ? A. Each respondent who has entered an appearance may, within twenty-one days after the service of the citation on him, file in the registry an answer to the petition. In case the time allowed for appearance is more than eight days, a respondent w^ho has entered an appearance may, within fourteen days from the expii-ation of the time allowed for entry of appearance, file in the registry an answer to the petition. (D. E. 28, 18G.) Q. Must such answer be verified in any manner ? A. Unless it contains only a simple denial of the facts stated in the petition, it must be accompanied by an affidavit by the respondent, verifying it so far as he or she has personal know- ledge thereof, and deposing as to belief in the truth of the remaining part. In suits for nullity of nuirriago, judicial separation, divorce or jactitation, a respondent liusband or wife is also to state that there is no collusion or connivance. (D. R. 30, ;U.) Q. Are there any pleadings after answer Y A. Witlnn fomieen days from the filing and delivery of the answer tlie petitioner may file a repl}-, and tlio same period is allowed for filing any furtlier i)loadings by w'ay of rejoinder, or any subsequent pleadings. (1). K. '32.) Q. How may pleadings be amended ? A. ]5y an order of one of the registrars, obtained on summons. (D. R. 34, 187.) DIVORCE PRACTICE. 79 Q. Before whom are proceedings tried in the Divorce Court ? A. Formerly it was necessary, in case a trial was desired otherwise than before a judge, to make a motion witliin fom'teen days from the filing of the last pleading that the disputed questions of fact should be tried by a jury, but now it is no longer necessary to apply for such directions. When the pleadings are concluded, the parties may proceed in all other respects as though upon the day of jfiling the last pleading a special dii-ection had been given by the court as to the mode of trial to the following effect : — (1) In cases in which damages are not claimed, that the cause be heard by oral evidence before the cornet without a jmy ; and (2) where damages are claimed, that the cause be tried before the court with a common jmy. But any party may apply by summons for a direction that the cause may be tried otherwise than as just mentioned. (D. E. 205.) And the court may order a trial by jmy, though neither party wish it. Q. If the trial is to take place before a jmy, what course must be adopted to present the matter to the jury ? A. The questions of fact raised by the pleadings are to be briefly stated in writing by the petitioner, and settled by one of the registrars. If the petitioner fails to deposit these questions in the registry within fourteen days from the date of filing the last pleading, either of the respondents on whose behalf such questions have been raised may do so. After the questions have been settled by the registrar, the party depositing the same is to deliver a copy thereof as settled to each of the other parties, who may apply by summons within eight days to alter or amend the same. (D. E. 41, 43.) Q. Wlio should set down the cause for trial ? A. In cases to be tried by a jury, the petitioner, after tlie expiration of eight days fi'om the delivery of copies of the questions for the jmy to the opposing parties, or from amend- ment of the same by order, is to file such questions as finally settled, and at the same time set down the cause as ready for 80 DIVORCE. trial, and on tlio same day give notice of his having done so to each pai-ty for whom an ap})earanee has been entered. In cases to he heard witliout a jury, the petitioner is to set dow-n the cause for hearing, and on the same day give notice as above mentioned. (D. R. 44, 45.) Q. What coiu'se may a respondent adopt if the petitioner fails to file the questions or set do^^^l the cause for trial, or to give due notice of trial for one month after the fihng of the last pleading 'f A. Either of the respondents may file such questions and set dovni the cause for trial, and shall, on the same day, give notice to the other pai-ties. (D. R. 4G.) Q. May a respondent Ije heard at the trial -vvho has entered an appearance but not delivered any answer 'f A. Such person may be heard as to any questions of costs, or if a husband or wife of the petitioner, in respect to any question as to the custody of the children, but not upon any matters in issue in the principal cause, that is, as to the adultery, cruelty, &c. (D. R. 50.) Q. Sketch the proceedings in the taking of evidence by aih- davit. A. Affidavits must be filed within eight days from the time when dii-ections were given to pro\'c the facts by affida^'it, but in an undefended cause, such aflidavits may be filed at any time up to ten clear days before the cause is heard. Counter-affi- davits can be filed within eight days from the filing of the previous affidavits. Affidavits in reply, only by leave of a registrar. Orders for cross-examination may })e obtainiMl on simimons. Copies of aihdavits can be delivered to the other parties the same day as filed. (D. R. 51— 55, 188.) Q. What is an act on petition Y A. It is a method of detennining an incidental matter arising during or after progress of a suit, as, for instance, a question of " jurisdiction. Q. Give some account of the procedure by act on peti- tion. A. Any party who has entered an iqipcarancc may apply on DIVORCE PRACTICE. 81 summons to the registrar to be heard on his petition as to a collateral question. Within eight days from such leave he must file his act on petition, and deliver a copy to the parties whom it concerns. These parties have eight days witliin which to file an answer, and there is then eight days for every further pleading. Eacli party must,- within eight days from the last pleading, file his affidavits. After this eight days, the party filing the act on petition is to set it down for hearing, and if he does not do so within a month, any party who has filed an answer may do so, and the petition will be heard by a judge without a jury. (D. E. 56 — 61.) Q. Does the death of a petitioner affect the proceedings ? A. In a suit for dissolution of marriage the proceedings ^^'ill come to an end ; and this is so even if a decree nisi has been already made. {Grant v. Grant, 31 L. J. P. M. & A. 174.) Q. Describe the procedure on motions in the Divorce Com-t. A. Four clear days' notice must be given, unless the motion is ex parte. The notice must be in writing and signed by the party or his solicitor. The following documents must be filed in the registry : (1) case for motion ; (2) copy notice of motion ; (3) affidavits in support of motion ; (4) any original documents referred to in such affidavits or to be referred to by counsel. (Browne, 267; D. R. 115, 149.) Q. "What is a case for motion ? A. It is a short account of the proceedings up to the time, and should contain (1) the style and object of the cause ; (2) the names and description of the parties ; (3) the proceedings already taken, with their dates ; (4) the circumstances on which the motion is founded ; (5) the prayer of the motion. (D. R. 147, 148.) Q. Mention the principal cases where applications must be made in divorce proceedings by motion. A. (1) to dispense with making a co-respondent (D. R. 5) ; (2) for leave to intervene (D. R. 23) ; (3) for a new trial (D. R. 62) ; (4) to, make a decree absolute (D. R. 80) ; (5) for custody of or access to children. (Browne, 269.) Q. What is meant by an order for confrontation Y A. This is an order that either party shall attend and bo N. Ct 82 DIVORCE. confronted witli llic witnesses for tlie piu'pose of identifica- tion. But tlie court has, as a rule, no power in a suit for dissolution to order the resjiondent to appear for the purpose of identifica- tion, thougli it lias in all other cases [Ilooke v. Ilookc, 28 L. J. P. & M. 29) ; and in some special instances an order for con- frontation has been made in suits for dissolution. {Hii>(!i)Hir-' wife did not, and that the husband did, commit adultery. Can any relief be granted to the -wife Y A. Yes ; in such a suit if the wife opposes the relief souglit on the ground of the adulterj^, cruelty, or desertion of the husband, the court may grant her the same relief to which she would have been entitled in case she had filed a petition seeking such relief. Corresponding relief is given to the husband alleging, as re- spondent, the adultery or cruelty of his wife. (Act of 186G, sect. 2.) Q. May an application for a new trial be made, and when ? A. Yes ; an application for a new trial may be made on the ordinary ground obtaining in the common law coiu'ts ; tlie appli- cation must be made to the judge by motion within fom-teen days from the day of the former trial if the judge be then sitting to hear motions, and if not, on the first motion day after such fom-teen days. (P. R. G2.) Q. AVhat are the powers of the couil us to costs ? A. It may make such order as it thinks just; and where the husband is tlie petitioner it may order a co-respondent to pay the whole costs of the proceedings. (Act of 1807, ss. -34, ol.) Q. A mfe succeeds in obtaining a divorce on the ground of her husband's adultery, what is the rule as to tlie costs, no order being made at the trial ^ A. Tlie husband will have to pay tlie wife's costs as well as his own. (BroAvne, 346.) Q. "Wliat .special rule is there as to the costs of tlie wife in proceedings in the Divorce Coiu't ? DIVORCE I'UACllCE. 85 A. After the conclusion of the pleadings, or at an earlier stage of the cause, hy special order to he obtained on summons, a wife who is a petitioner, or has entered an appearance as respondent, may file her hill of costs for taxation as against her husband, and the registrar must ascertain what is a sufficient sum of money to be paid into the registry, or what is sufficient secm-ity by the husband, to cover the costs of the wife of and incidental to the hearing of the cause ; and he is thereupon to issue an order to the husband to pay or secure the amount within a time fixed ; but if the husband, by reason of his wife having separate property, disputes her right to recover any costs pending the suit against him, the registrar may suspend the order for such time as is necessary to enable the husband to obtain the decision of the com't as to his liability. (D. E. 158.) Q. What is the rule where the wife is unsuccessful at the trial as to her costs ? A. No costs of the wife, of and incidental to such hearing or trial, are to be allowed against the husband, except such as are apphed for and ordered to be allowed at the time of such hearing or trial. (D. E. 159.) This, of course, does not affect the amount which has been deposited, or for which security has been given under rule 158 (see last answer), though the court has power, if it thinks fit, to disallow the wife's costs even out of the money deposited. {Flower v. Floirer, L. E. 3 P. & D. 132 ; 42 L. J. P. & M. 45.) Q. State some general rules followed as to costs in the Divorce Com-t. A. We have abeady seen that the wife may, whether a peti- tioner or respondent, obtain security for her costs from the husband, and also that unless she does so, if she is a losing party, she will usually be entitled to no costs of the hearing. If she succeeds her husband will have to pay her costs. If she loses she might be ordered to pay her husband's costs. {Carstairs v. Carsfairs, 33 L. J. P. M. & A. 170.) A co-respondent found guilty may be ordered to pay the costs of all parties. But he will not be so condemned if he did not know that the respondent was a married woman. (Browne, 305.) 86 ul^ollCE. And where tlie petition is dismissed as against a co-respondent tlie hu^l)and will usually be ordered to pay the costs of the co-respondent. Q. "Wliat appeals are there in the Divorce Di^-ision ? A. Fomierly, there was an appeal to the fidl coui't within tlu-co months, and in cases of dissolution or uvdlity of marriage, an appeal from the full com't within one month to the House of Lords. But by the Judicature Act, 1881, s. 9, all appeals in matri- monial or divorce causes are to be brought to the Court of Appeal, and not to the fidl coiu't. The decision of the Com't of Appeal is final except in cases of (1) petitions for divorce, (2) or nullity of marriage; (-3) for declai-ations of legitimacy, or (4) the question is one of law, and the Court of Appeal gives leave to appeal. In cases, therefore, of judicial separation or restitution of conjugal rights, except upon a point of law where leave is given to appeal, the decision of the Com't of Appeal is final. Q. Within what time must an appeal be made (a) to the Com-t of Appeal from the Divorce Division : (b) to the House of Lords from the Court of Appeal Y A. (a) Within fom'teen days, and there is no power to enlarge the time. {AhU'r v. AJiicr, 29 W. 11. 770 ; 10 Prob. Div. 110.) (b) Subject to any carder made by the House of Lords, the appeal from the Court of Ai)peal (where such appeal lies in divorce cases) nmst be brought within one month after the decision appealed against has been pronounced by the Court of Appeal, if the House of Lords is then sitting, or, if not, within fourteen days after the House of Lords next sits. (J ud. Act, 1881, s. 9.) Q. How is a decree niai now made absolute ? A. Applicatif)n to make absolute a decree nitil for divorce or nullity need not now, as fonnerly, be made by motion. It is sufficient to file in the registry an affidavit tluit no person has obtained leave to intervene, and that no appearance has been entered nor any affidavits filed on behalf of any person -wisliing to show cause against the decree nixi being made DIVORCE PKACJ'ICE. 87 absolute, and a notice in writing setting forth that application is made for such decree absolute, which will thereupon be pro- nounced in open court at a time appointed for that purpose. (D. E. 80, 194, 207.) Q. When may a suit be heard in camera ? A. Suits for nullity and for judicial separation may be heard ill camera, but not suits for dissolution, unless by consent of the parties. Q. When, after a decree nisi for divorce, may the parties marry again ? A. Not before the decree is made absolute, nor until the time limited for appealing from the decree nisi is past, or the result of the appeal is that the marriage is declared to be dissolved. (Act of 1857, s. 57 ; Act of 1868, s. 4.) And by sect. 10 of the Judicature Act, 1881, no appeal is to lie from any order absolute for dissolution or nullity, in favour of any party who, having had time or opportunity to appeal from the decree nisi on which such order is founded, has not appealed therefrom. Q. Describe the proceedings on an application for alimony pendente lite. A. The wife having presented her petition at the time before mentioned {suprcc, p. 73), the husband must within eight days after the filing and delivery file his answer thereto upon oath. If he is respondent he must first have entered an appearance. If the wife is not satisfied with her husband's answer she may object to the same as insufficient, and take out a simimons for a further and fuller answer, or for the husband's attendance for the purpose of behig examined. In case the husband alleges in his answer that the wife has property of her own, she may, within eight days, file a reply on oath to that allegation ; but no rejoinder by the husband can be made except with permission of a registrar. The examination of witnesses then takes place before the registrar. (D. E. 84—89, 189—191.) Q. Is there any appeal from the decision of the registrar on a question of alimony ? A. Either party may apply by summons to the judge to rescind or vary the order of the registrar. 88 DIVORCE. Q. AVliut cuui'se must Ix' adopted l»y a iicrt-ou i>howmg cause against a decree iiiai / A. lie must enter an appearance in tlie eom-t in wliieli such decree lias been pronounced, and at tlie time of enteriag it or within four days afterwards lie must file an affida\it setting forth the facts on Avliich he relies, and deliver copies of the same to the part}' in whose favour the decree has been pro- nounced. Such party ma}-, within eight days after the delivery of these alfidavits, file affidavits in answer and deliver copies to the person intervening. Affidavits in reply may be filed within eight days, but none in rejoinder except by leave of a registrar. Questions raised by these affidavits are to be argued in the same manner and in such time as the judge may on motion direct, and a jmy may be directed to try questions of fact. (D. E. 70— 7G.) Q. How are applications to the couil in relation to settlements to be made ? A. By separate petition to be filed within one month from the time when the application can be made, that is, alter the decree for divorce or judicial separation, as the case may be. Certified copies of such petition are to be personally served on the husband or wife and other person having any interest in the property, and these persons may within fom-teen days file an answer on oath to the petition, and they must on the same day deliver a copy thereof to the opposite party or his solicitor. The petitioner has fourteen days for filing a reply, and there is the same period for a rejoinder. The pleadings are then referred to a registrar, who, in the presence of the parties, investigates the matter and reports in writing to the court. The petition is filed, and a motion to can-y out the report or an objection to it is then made. (D. 11. J*5 — 102.) ( 81) ) LAW AND PRACTICE OF BANKRUPTCY. CHAPTER I. JUIUSDICTIOX, PROCEDURE, AND APPEALS. Q. Wliat are the principal changes introduced into the law of bankruptcy by the Act of 1883 ? A. (I.) The abolition of liquidation by arrangement and composition, as under the Act of 1869 ; composition being now only allowed after a receiving order and under the approval of the cornet. (2.) The assimilation of the law as to traders and non-traders. (3.) The confinement of the doctrine of reputed ownership to trade chattels. (4.) The addition of several new acts of bankruptcy. (5.) The restriction of creditors' rights under an execution or attachment. (6.) The fact that goods cannot now be taken under a writ of elegit. (7.) The establishment of official receivers, to whom certain duties are assigned. (8.) The introduction of provisions for the administration of the estate of deceased insolvents and for small bankruptcies. (Baldwin, 6.) Q. What coiu-ts have jm-isdiction in bankruptcy ? Wliere should bankruptcy petitions be presented ? A. The High Coiurt and the county courts, but the Lord Chancellor may exclude any county coiu't from jimsdiction. (1) H the debtor has resided or carried on business witliin the London bankruptcy district for the greater part of the six months immediately before the presentation of the petition, or for a longer period dming those six months than in the district of any county court ; or (2) is not resident in England ; or (3) if the petitioning creditor is unable to ascertain the residence 90 KANKKll'TCV. of the Jc'Ltur, — the petitiuu is to be presented to the High Com't; in any other case the petition is to be presented to the county eoui-t of the district in which the debtor has resided or carried on business for the longest period dming sucli six montlis as aforesaid. (Sect. 92, pai'. 3.) If proceedings are commenced in a "WTong court, they may be transfeiTcd to tlie riglit one by the judge of tlie former court. (Sect. 92 ; E. 20.) Q. How may orders of tlie Board of Trade or the othcial receiver to tlio trustee, debtor, or otlier person be enforced ? A. By order of the com-t, on application of the Board of Trade, official receiver, &c. ; and the defaulter may be committed. This is in addition to any other remedy there may be for the default. (Sect. 102, pai-. 5.) Q. "What is the jurisdiction of the bankruptcy registrars? A. Under the general or special directions of the judge the registrai's have power — (1) to hear banki-uptcy petitions, and to make receiving orders and adjudications thereon ; (2) to hold public examinations of debtors ; (3) to grant orders of dis- charge wliere tlie application is not opposed ; (4) to approve compositions or schemes of arrangement if unopposed ; (5) to make interim orders in case of m-gency ; (G) to hear any un- opposed or ex parte apjilication ; (7) to summon and examine any person kno%\Ti or suspected to have in his possession effects of the debtor, or to be indebted to him, or capable of giving in- formation concerning him, his dealings, or in-oiierty. The registrars of the High Com't have, in addition, power — (1) to grant orders of discharge ; (2) to grant certificates of removal of dis(_[ualifications; and (-3) to approve compositions and schemes of an-angements. (K. 102, 103.) Q. What matters must be determined in open court ? A. (1) Public examination of debtors ; (2) applications to approve compositions or scJumies of arrangement ; (-3) api»lica- tions for orders of discharge or certificates of removal of disquali- fications ; (4) appeals fi'om the Board of Trade to the Iligh Court ; (o) ai)plications to set aside any settlement, conveyance, &c., or to declare for or against the title of the trustee to any property adversely dahned ; (G) ai)iincations fur the conmiittal JURISDICTION, PROCEDURE, A]ND APPEALS. 91 of any person to prison for contempt ; (7) appeals against rejec- tion of the proof, or applications to expunge or reduce a proof, where the amount of the proof exceeds 200/. ; (8) applications for the trial of issues of fact with a jury, and the trial of such issues. Other matters may be determined in chambers. (R. 6.) Q. Is there any rule as to the debtor's being resident in Eng- land, as a condition to his being made banki'upt ? A. No petition can be presented against a debtor unless (1) he is domiciled in England, or (2) within a year from the date of the presentation of the petition ho has ordinarily resided or had a dwelling-house or place of business in England. (Sect. 6.) But the petitioning creditor need not prove one of the above facts unless the debtor disputes the jurisdiction, and either of the above facts will be enough. (Sect. 6, sub-sect. 6 ; Hx parte Barne, Re Barne, L. E. 16 Q. B. D. 522.) Q. "What is the power of a court of banki'uptcy to determine questions arising before it ? A. Every com-t having jmisdiction in bankruptcy has fidl power to decide all questions of priorities, and all other questions whatsoever, whether of law or fact, which may be necessary to do complete justice. But a county cornet may not exercise jurisdiction where the value of the property, in the opinion of the judge, exceeds 200/. unless the parties consent. The com-t may order a disputed question of fact to be tried by a jmy in the High Coui-t, or in the county court, as the case may be. (Sect. 102.) Q. Is there any rule as to the division of the High Court in which a trustee in lianla-uptcy shoidd bring actions ? A. Unless the matter is specifically assigned by the Judieatm-o Act or the Eules to a particular division, actions by the trustee must be brought in the division to which bankiniptcy business is assigned. (E. 101.) Q. How are applications to the court to be made ? A. Unless otherwise provided by the rules, or directed by tlie com-t, by motion supported by affidavit. (E. 27.) Q. State some of the chief rules relating to motions. A. (r^) Eight days' notice of motion must be served on the 92 HANKIU PTCY. opposite party. (R. 2d.) (b.) AVliore a respondent intends to use affida\-its in opposition to the motion, he must deliver copies of such atfidavits to the applicant not less than two days before the day appointed for the hearing. (R. 30.) (c.) An order may be made e.v jif'^c where the delay caused by proceeding in the ordinary way would or might entail serious mischief. (R. 28.) Q. What appeals are tliere, and to whom, in T)ankruptcy matters ? A. (1) Appeals lie from tlie High Court to tlie Court of Appeal ; (2) with leave of the Coiu't of Appeal, but not other- wise, an appeal will lie from an order of that court to the House of Lords ; (3) fi-om the order of the county court an appeal lies to a divisional court of the High Court, of whicli the judge to whom bankruptcy business is assigned is to be a member. The decision of the divisional coiui is to be final, unless it or the Court of Appeal gives leave to appeal to the Court of Appeal whose decision is then to be final. (Bankniptcy Act, 1883, s. 104 ; Bankiniptcy Act, 1884, s. 2.) Q. In what cases is no appeal allowed ? A. (1) Wlioro the order is made by consent; or (2) is as to costs only ; (3) nor, except by leave, is there any appeal to the Court of Appeal whore tlie value of the property does not exceed 50/. ; (4) nor in respect of the omission by tlie coiu't appealed from to exorcise any discretionary power, unless the com-t lias exjiressly refused to exercise such power, in which case the refusal may be made a ground of appeal. (R. 129.) Q. "Within wliat time must an ajipcal be made to the Court of Appoaiy A. Witliiii twenty-one days from llio time at whicli the order appealed from is signed, entered, '>v otlifrwise perfected, or, in the case of the refusal of an application, from the date of such refusal. (R. 130.) Q. '^V^lat security must bo given by the apj)ellaut ? A. At or before the time of entering an appeal lie must lodge with the High Court 20/. lint the Court of Appeal may increase or diminish the amount, or dispense mth it. JURISDICTION, PROCEDURE, AND APPEALS. 93 Q. Within what time must an appeal he made from the Board of Trade to the High Cornet ? A. Within twenty-one days from the time when the decision appealed against was pronounced. CHAPTER II. THE PETITION, RECEIVING ORDER, PUBLIC EXAMINATION, FIRST MEETING, ADJUDICATION, ETC. Q. Give a sketch of the procedui^e at the commencement of bankruptcy proceedings. A. A petition is presented upon which the comi usually makes what is called a receiving order, which neither divests a debtor of his property nor makes him a banla-upt. After the making of this order, a general meeting of creditors is to be held to consider wliether the debtor shall be made bankrupt, in which ease his property vests in a trustee, or whether a com- position or scheme of arrangement shall be entertained, but such composition or scheme must be approved by the comi. (Baldwin, 34.) Q. State some general rules relating to the presentation of a bankruptcy petition. A. The petition is to be in the fonn given in the Appendix to the rules. It is to be attested in England by a solicitor or justice of the peace, or by an official receiver or registrar. The petitioner must deposit with the official receiver a sum of 61., and such further sum, if any, as the court may from time to time direct, to cover the fees and expenses to be incmTcd by the official receiver. If presented by a creditor, it must be verified by affidavit of the creditor or some person having knowledge of the facts, and 94 BANKRUPTCY. it must allege an act of baulcruptc}' occiuTing within tliree months before the presentation of the petition. A debtor's petition must allege that the debtor is unable to pay his debts, and the presentation thereof will be deemed an act of bankruptc}', and the court is thereupon to make a receiving order. (Baldwin, 45, 46 ; R. 143 — 152.) Q. Within what time before the presentation of the petition must the act of banki-uptey on which the petition is grounded have occurred ? A. Witlnn three mouths. (Sect. 6.) Q. How is a creditor's petition to be served ? A. A sealed copy of the filed petition must be served by the officer or bailiff of the court, or by the creditor or his solicitor or some person in their employ, on the debtor personally ; but sub- stitiited service may be ordered if it appears that the debtor is avoiding ser\dce. (R. 153, 154.) Q. AVliat are the requisites of a petitioning creditor's debt ? A. It nmst be (1) not less than 50/. ; (2) a liquidated sum payable either immediately or at some future time ; and (3) not secured unless the conditions hereinafter stated are complied ^\ith. (Sect. 6.) Q. May several creditors whose debts are separately less than 50/., but in the aggregate amount to 50/. or over, present a joint petition ? A. They may do so. (Sect. 6.) Q. How does the present act differ fi'om the Act of 18G9 as to the petitioning creditor's debt ? A. Under the Act of 1869 it was not sufficient that the debt would become due in the future, unless it were actually payable at the date of the presentation of the petition. Under the present act it is sufficient if the debt is payable at some future time : so that a bill of exchange before maturity will be a good petitioning creditor's debt. (Baldwin, 53.) Q. Can the court inquire into the consideration for a debt upon which judgment lias actually been obtained, and upon which a bankruptcy petition is jircscnti'cl ? A. It may do so even although judgment was obtained by default or l)y consent. THE PETITION, RECEIVING ORDER, ETC. 95 Q. Is the coiu't Lomid to make an adjudication in all cases where there is a good petitioning creditor's debt and a sufhcient act of bankruptcy ? A. As a rule the adjudication will, in such a case, be made, and it is a matter of right. But when the debtor's estate is being administered in an action in the Chancery Division, or when the petition has been wilfully presented to the wrong coui-t, or when it is clear that the bankruptcy proceedings have been instituted for inequitable pm^poses, the coiu-t is not obliged to make the order. {Ex ixtrfe Tynte, Be Tynte, L. E. 1.5 Ch. D. 125; 42 L. T. 598; 28 W. E. 767; Ex parte King, Re Davies, L. E. 3 Ch. D. 461 ; 45 L. J. Bk. 569.) Q. May a secured creditor present a bankruptcy petition ? A. He may do so if he either states that he is willing to give up his security for the benefit of the creditors, or if he gives an estimate of the value of the security. In the latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deduct- ing the value so estimated. If he does not either give up his secmity or estimate its value an adjudication made on his petition will be bad, although the creditor, it appears, does not forfeit his security. (Sect. 6 ; Moore V. AugJo-ItaUan Bank, L. E. 10 Ch. D. 681.) By leave of the court the petition may be amended where the secured creditor has not complied with the provisions of the act. The creditor may under-value his security in order to leave a sufficient amount of misecm-ed indebtedness. {Be Lacey, Ex parte Taylor, 13 Q. B. D. 128.) Q. What are the different species of acts of banki'uptcy ? A. These are divided by Mr. Baldwin in his book on Bank- niptcy (p. 56) into tlu'ee classes ; (a) personal acts or defaults on the part of the debtor ; (b) dealings with his property ; (c) acts which show the insolvent state of his affairs. Q. Mention the acts of bankruptcy falling under the head of personal acts or defaults on the part of the debtor. A. With intent to defeat or delay his creditors— (1) depart- ing out of England ; (2) remaining out of England ; (3) depart- 96 H.VNKIUPTCY. iiig from liis thvelling-liouse ; (4) otliorwise absenting himself ; (o) beginning to keep lionse. The intent to defeat or delay creditors must be proved, but may be inferred from such acts as will necessarily liave this effect. (Bald\\'in, 67 — 59 ; Sect. 4.) Q. Mention the acts of bankruptcy whicli fall imder the head of dealings by the debtor with his property. A. (1) Conveyance or assignment in England or elsewhere of his property to a trustee for the benefit of his creditors gene- rally ; (2) fraudulent conveyance or transfer of liis property, or any part thereof, in England or elsewhere ; (3) conveyance or transfer in England or elsewliere of a debtor's property, or any pai-t thereof, or the creation of any charge thereon which would, under this or any other act, be \'iewed as a fraudulent preference if the debtor were adjudged banla-upt. (Baldwin, 59 ; Sect. 4.) Q. Who can present a petition based upon a conveyance of a debtor's property to tnistees for his creditors generally ? A. A creditor cannot do so who is party or privy to such con- veyance, unless the deed be fraudulent as against him; but, otherwise, if the other requisites of a petitioning creditor's debt are satisfied, any creditor may petition. (Baldwin, 60.) Q. Wlien is a conveyance of a debtor's property considered to be fraudulent under the 13 Eliz. c. 5 ? A. Wlien the object is to delay, defeat, or defraud creditors generally. But this statute does not prevent a debtor preferring one cre- ditor or set of creditors to the other creditors, and the convey- ance of the whole of a man's property in satisfaction of a past debt will be valid under this statute. Q. When will a conveyance of a debtor's property be fraudu- lent witliin the meaning of the bankruptcy law ? A. The object of the bankruptcy law being to secure equality amongst the creditors, a conveyance of the wliole of a person's property in consideration of a past debt will, as a rule, be frau- dulent, and an act of bankruptcy. I'ut if there is (1) a sub- stantial present advance of money or goods ; or (2) a binding agreement to make future advances ; or (3) if there is a sub- stantial exception frc^ni the debtor's property showing that he THE PETITIOX, RECKIVIXG OHDEK, Kl'C. 97 bond fide inteuds to cany ou his business ; in all tliese throe cases, a conveyance of tlie whole of a debtor's property for a past debt will not amount to an act of bankruptcy. Q. When a bill of sale of the whole of a debtor's property is executed for an existing debt and a fresh advance, what is the true test whether the execution of the deed is an act of bank- ruptcy !^ A. The true test is, was the fresh advance bond fide intended to enable the debtor to carry on his business in the ordinary waj'. If it was, the bill of sale is not an act of bankruptcy. Q. AVliat is a fraudulent preference ? A. By sect. 48, every conveyance or transfer of property, every payment made, or obligation incm-red, and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money, in favour of any creditor or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors, is, if the debtor is adjudged bankrupt on a petition presented within three months after such act, to be deemed fraudulent and void as against the trustee. Q. State the necessary marks of a fraudulent preference. A. (1) It must be made with a dominant view of giving a par- ticular creditor a preference over the others ; (2) the debtor must be imable to pay his debts from his own money as they become due ; (3) he must be adjudged bankrupt on a petition presented within three months from the preference. If the payment is in the ordinary course of business, or is a payment under pressm-e, it will not be a fraudulent preference, nor is it so when a fraudulent trustee voluntarily replaces trust funds which he has misapplied. (Baldwin, 72 — 75 ; Ex j^arte Sfuhbiiis, Be Wilkinson, L. R. 11 Ch. D. 58.) Q. What are the acts of bankruptcy which are such as indicat- ing the insolvent state of a debtor's affairs ? A. (1) The filing by the debtor of a declaration of his inabihty to pay his debts, or presentation by the debtor of a banki'uptcy petition against himself; (2) that execution against him has been levied by seizure and sale of his goods under process in an action in any court or in any civil proceedings in the High 98 BANKRUPTCY. Court ; (3) that a creditor has obtained final judgment against him for any amount, and, execution thereon not ha^•ing been stayed, has served on him in England, or by leave of the com^t elsewhere, a bankruptcy notice requiring him to pay the judg- ment debt, or to secure or compound for it to the satisfaction of the creditor or the court ; and if ho does not "within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then •within the time limited, either comply wHith the notice or satisfy the com't that he has a counter-claim or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action on wliich tlie judgment was obtained ; (4) gi%'ing notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts. (Sect. 4 ; Baldwin, 75, 76.) Q. State the requisites of a declaration of insolvency, so that it may constitute an act of bankruptcy. A. It must be in the form in the Appendix to the Rules, and must be witnessed by a solicitor or justice of the peace, or an official receiver or registrar of the court. (R. 135.) Q. T\nien does execution amount to an act of bankruptcy ? A. "Wlienever any of the debtor's goods have been seized in execution and sold for a judgment for any amoimt. Formerly it was not an act of bankruptcy unless the sum for which the execution was issued amounted to 50/. (Sect. 4.) Q. "Wliat is the duty of the slieriff as to the proceeds of an execution for a sum exceeding 20/. ? A. Wliere the goods of a debtor are sold under an execution on a judgment for a sum exceeding 20/., the sheriff, after deducting the costs of the execution, is to retain the balance for fourteen days, and if within that time notice is given to him of a banki'uptcy petition against or by the debtor, and the debtor is adjudged bankrupt, tlie sheriff is to pay the balance to the trustee in bankniptcj', who is entitled to retain the same against the execution creditor. (Sect. 4G, par. 2.) Q. Wliat did the Bankruptcy Act provide as to the sale of goods under an execution ? A. That where the sheriff sells the goods under an execution THE PETITION, RECEIVING ORDER, ETC. 99 for a sum exceeding 20/,, the sale is to be by public auction, unless the eoiu-t otherwise orders, and not by bill of sale or I)rivate contract, and is to be publicly advertised by the sheriff dming- tlu-ee days next preceding the day of sale, (Sect. 145.) 13 ut leave may be granted ex- parte to sell by private contract, and the application may be made at chambers either to a judge or master. (Baldwhi, 80 ; Runt v. Fens/mm, L. E. 12 Q. B. D. 162 ; 32 W. 11. 316 ; Hunt v. C/i/fbrd, W. N. 1884, p. 86.) Q. State what will, and what will not, amount to a final judgment, so that a creditor may serve a bankruptcy notice upon which to ground a petition in bankruptcy. A. It must be a final judgment in an action. {Kt parte Moor, Re Faithfully L. E. 14 Q. B. D. 627 ; 54 L. J. Q. B. 190 ; 33 W. E. 438 ; 52 L. T. 376 ; 2 Morrell, 52.) A gar- nishee order is not a final judgment, nor a balance order for payment of calls in the winding-up of a company, nor an order made by consent for payment of taxed costs. Nor can the assignee of a judgment debt issue a notice. Nor can the executor of a creditor who has obtained judgment against the debtor, unless and imtil he has obtained an order making him a party to the action in which judgment has been obtained, [Fx parte Chinnery, Re Chinnenj, L. E. 12 Q. B. D, 342 ; 53 L. J. Ch, 662 ; 50 L, T. 342 ; 1 Morrell, 31 ; Ex parte Grimwade, Re Tenncnt, L. E. 17 U. B. D. 357 ; 55 L. J. Q. B. 495 ; 3 Morrell, 166; Fx parte Whinney, Re Sanders,lj. E, 13 Q, B, D. 476 ; 1 Morrell, 185 ; Fx parte ScJunitz, Re Cohen, L. E. 12 a. B. D. 509 ; 53 L. J. Ch. 1168 ; 32 W. E. 812 ; 50 L. T. 747 ; 1 Morrell, 55 ; Ex parte Woodall, L, E, 13 Q„ B. D. 479 ; 53 L, J. Ch. 966 ; 50 L. T. 747; 32 W. E. 774; 1 Morrell, 201.) Q. How is a banlo-uptcy notice to be served ? A. A sealed copy must be served upon the debtor j)ersonally by an officer or bailiff of the court, or by the creditor, his soli- citor, or some person in their employ, within one month from the issue thereof, unless an extension of time has been granted. (Eules 141, 153—156.) Q. What must a debtor, served with bankruptcy notice, do if h2 lOU KANKKll'T(Y. lie wishes to set up a countor-claiin or cross-deniainl wliieh equals or exceeds the amouut of the judguieut debt, aud which he could not have set up in the action in which judgment was obtained ? A. He must, -ftithin the time specified in a notice to that effect, indorsed on the bankruptcy notice with which he has been served, file an affidavit as to such counter-claim, &c., -snth the registrar. This will operate as an appHcation to set aside the bankruptcy notice, and thereupon the registrar must fix a day for hearing the apj^lication, and give not less than three days' notice thereof to the debtor aud the creditor, and then- respective solicitors, if known. A receiving order is not to be made until after the liearmg of this application, or when the notice has "been set aside, or during a stay of the proceedings thereon. (Rules 138, 139, 180.) Q. What will amount to notice by a debtor that he has suspended, or is about to suspend, payment ? Mention any decisions on the subject. A. Verbal notice to one creditor is sufficient, but not a mere casual conversation. Notice must be given fonually and deli- berately, and with the intention to give notice. Calling the debtor's creditors together and presenting to them a statement showing insolvency is not necessarily a sufficient notice that he is about to suspend payment, but it is otherwise if there is a definite intimation of such an intention to the creditors. {Ex parte Nicholls, W. N. 1884, p. 154 ; Baldwin, 85.) Q. Give an account of the proceedings at the hearing of a bankruptcy petition. A. A creditor's petition is not to be heard till after eiglit days from the service thereof ; but if the act of bankruptcy alleged is that the debtor has filed a declaration of inability to pay his debts, or when the debtor has absconded, or in any other case for good cause shown, the coiui may hear the petition at an earlier date. (R. 157.) If the debtor does not appear, the comi may make a receiving order on such proof of the statements in the petition as it shall THE PETITION, RECEIVING ORDER, ETC. lUl tliink fit. {11. 161.) If he does appear, the court is to require proof of the debt of the jietitiouiug creditor, of the service of the jietition, and of the act of bankruptcy, and, if satisfied with the proof, may make a recei\dng order. Tlie personal attendance of the petitioning- creditor and witnesses to prove tlie debt, act of bankruptcy, &c., may bo disjiensed with if the coiu't thinks fit. (R. 164.) Q. "What is the effect of the presentation of a debtor's petition ? A. It is deemed an act of banla'uptcy without the previous filing by him of any declaration of inability to pay his debts, and the coiu-t thereupon is to make a receiving order. (See Gr. E. 157.) Q. What must a debtor do who intends to dispute any of the statements in the petition ? A. He must file a notice with the registrar specifying those statements, and transmit by post to the petitioning creditor, and his solicitor, if known, a copy of the notice three days before the date on which the petition is to be heard (R. 161) ; the disputed matters must then be proved at the hearing by the creditor. Q. What course may the com-t adopt where the debtor appears, and denies his indebtedness ? A. The court may, on such security, if any, being given as it may require, for payment to the petitioner of any debt established against him, and costs, instead of dismissing the petition, stay all proceedings for such time as may be required for trial of the question relating to the debt. (Sect. 7, par. 5.) When the act of bankruptcy relied on is in non-compliance "ttdth a notice to pay a judgment debt, the com-t may stay or dismiss the petition, if it thinks fit, on the ground that an appeal is pending from the judgment. (Sect. 7, par. 4.) Where the appeal is bond fide, and a special question is involved, it has been laid down that the hearing of the petition should be adjourned. {Ex parte Ilayicorth, Ee E/wdes, L. R. 14 Q.. B. D. 49 ; 54 L. J. a. B. 198 ; 52 L. T. 201 ; 1 Morrell, 269 ; Ex parte Yea t man, Ee Yeatman, L. R. 16 Ch. I). 283 ; 29 W. R. 457 ; 44 L. T. 260 ; Ex parte Phippen, Ee Phippcn, W. N. 1883, p. 71.) 102 HANKKUl'TCY. Q. What power may the com-t exercise for the protection of the debtor's estate previously to tlie making of the receiving order ? A. It may apjioint an official receiver to he interim receiver of the i^roperty of the debtor, and dii-ect him to take possession thereof. As interim receiver, or manager, the official receiver has the same powers as if he were a receiver and manager appointed by the High Com-t, bnt he must, as far as practicable, consult the wishes of the creditors -sN-ith respect to managing the debtor's property, and may for that pm-jiose summon meetings of the alleged creditors; but must not, unless the Board of Trade otherwise order, incur any expense beyond such as is requisite for the j)rotection of the debtor's propeiiy, or the disjiosal of perishable goods. (Sect. 70 ; see also p. 104.) Q. By Avhom are official receivers appointed and removed ? A. By the Board of Trade under whose general authority and direction tliey are to act, though they are officers of the court to which they are respectively attached. (Sect. 66 ; E. 322.) Q. State some of the rights and duties of the official receiver generally. A. (1) He may administer oaths for the purpose of affidavits verif}'ing proofs, petitions, and other proceedings under the Baulcruptcy Act ; (2) all expressions referring to the trustee under a baukiiiptcy shall, imless otherwise appearing, include the official receiver when acting as trustee ; (3) the trustee is to sujjply the official receiver with such information, and give him such access to and facilities for inspecting the banki'upt's books and documents, and generally sue li aid as may be requisite for enablnig him to perform liis duties mider tlie act. (Sect. 6S.) Q. State tlie t^pccial duties of flic odicial receiver in relation to the debtor. A. (1) To investigate liis conduct, and to report to the com-t whether tlie debtor has committed any act constituting a mis- demeanour under tlie Debtors Act, 1809, or the Banla-uptcy Act, or any act whicli will justify tlio coui-t in refusing, suspend- ing, or qualifying an order for his discliarge ; (2) to make such other reports as to the conduct of the debtor as the Board of THE PETITION, RECEIVING ORDER, ETC. 103 Trade may direct ; (3) to take such part as may "be directed by the Board of Trade in the public examination of the debtor ; (4) to take sucli part, and give such assistance, in relation to the prosecution of any fraudulent debtor, as the Board of Trade may direct. (Sect. G9.) Q. State the special duties of the official receiver as regards the estate of the debtor. A. (1) Before the appointment of a trustee to act as interim receiver, and where a special manager is not appointed, as manager ; (2) to authorize the special manager to raise money or make advances for the pm^pose of the estate, where in the interest of creditors it is necessary ; (3) to summon and preside at the first meeting of creditors ; (4) to issue forms of proxy for use at the meeting of the creditors ; (5) to report to the creditors as to any proposal which the debtor may have made with respect to the mode of Hquidating his affairs; (6) to advertize the receiving order, the dates of the first meeting, and the public examination, and other matters; (7) to act as trustee dming any vacancy in the office of trustee. (Sect. 70.) Q. How is an official receiver in cases of doubt or difficulty to apply to the coiu-t ? A. Such application may be made personally and without notice or other f ormahty ; but the comi may in any case order that the application be renewed in a formal manner, and that such notice thereof be given to any person likely to be affected thereby as the comi may direct. (R. 332.) Q. What provision is there in the Bankruptcy Act as to the appointment of a special manager ? A. An official receiver may, on the appheation of any creditor or creditors, and if satisfied that the natm^e of the debtor's estate or business, or the interests of the creditors require it, appoint a special manager to act imtil a trustee is appointed, and with such powers as may be entrusted him by the official receiver. This special manager is to give secmities, and account in such manner as the Board of Trade may direct, and is to receive such re- muneration as the creditors may by resolution at an ordinary meeting determine, or in default of any such resolution, as may be prescribed. (Sect. 12.) 104 BANKIUPTCY. (^. AMiat nro tlie i^owers of the official receiver acting as trustee ? A. Ho lias fiill power after adjudication to exercise all the powers given by sect. 56 (see p. 145) to the trustee, and there- fore he may sell the property of the bankrupt thougli not of a perishable nature. {Tnrquaud v. Board of Trade, L. R. 11 App. Ca. 286 ; 55 L. J. Q. B. 417 ; 35 L. T. 30.) Q. What is the effect of a receiving order ? A. It constitutes an official receiver to be receiver of tlio pro- perty of the debtor, and thereafter, except under the Bankruptcy Act, no creditor whose debt is proveable in bankruptcy has any remedy against the property or person of the debtor in respect of the debt, or is to commence any legal proceedings miless by leave of tlie court. A seciu-ed creditor is not affected by this provision in his powers of realizing or dealing with his secmity. (Sect. 9.) A receiving order made against a firm is to operate as if it were a receiNiug order made against each of the persons wlio, at the date of the order, was a partner in the fii-m. (R. 262.) Q. What are the powers of the court for the protection of the estate of a debtor, against whom a bankruptcy petition has been presented, and before the petition is heard y A. (1) At any time after tlie presentation of the petition the court may appoint the official receiver to be interim receiver of the jiropei-ty of the debtor, and order him to take immediate possession ; (2) the coiui may, at any time after tlie presentation of the petition, stay any action, execution, or other legal process against the property or the person of the debtor ; and (3) any court in nhich j^rocecdings are pending may, on proof that a bank- ruptcy petition has been presented by or against the debtor, either stay the profcedings or allow tlu-m to continiu^ on such terms as it may think fit. (Sect. 10.) Q. How may an order staying an action or proceeding be served ? A. By sending a copy of such order under the seal of the com-t by prepaid post letter to the address for service of the plaintiff' or other party prosecuting such jtroc^eding. (Sect. 11.) THE TETITION, RECEIVING ORDER, ETC. 105 Q. What is tlie effect of a receiving order upon the rights of creditors to take proceedings against a debtor ? A. By a receiving order an official receiver is thereby consti- tuted receiver of the property of the debtor, and thereafter no creditor, in respect of debts provable in bankruptcy, has any remedy against the property or the person of the debtor in respect of the debt, or may commence any action or other legal proceeding unless by leave of the court. (Sect. 9.) Fmiher, where a receiving order has been made in the High Court, the judge by whom such order was made has power, if he sees fit, to order a transfer to such judge of any action pending in any other division brought or continued by or against the debtor. (Sect. 102, par. 4.) Q. What coiu-se may the court adopt in case it apj)ears that the creditors of a debtor, against whom a receiving order has been made, are chiefly resident in Scotland or in Ireland ? A. If it appears to the court that a majority of the creditors in number and value are resident in Scotland or Ireland, and that fi'om the situation of the property of the debtor or other causes his estate ought to be distributed under the bankrupt or insolvent laws of Scotland or Ireland, the court, on such inquiry as to it shall seem fit, may rescind the receiving order and stay all proceedings upon such terms as it may think fit. (Sect. 14.) Q. What is the public examination of a debtor, and when must it be held ? A. Where the com-t has made a receiving order it is to appoint a day for the public examination of the debtor, who must attend and be examined as to his conduct, dealings, and property. If the debtor fails to attend a warrant may be issued for his arrest ; the examination is to be held as soon as conveniently may be after the expiration of the time for the submission of the debtor's statement of affairs. (Sect. 17 ; E. 185.) Q. Who may question the debtor at such examination ? A. Any creditor who has tendered a proof, or liis representa- tive appointed in writing. The solicitor for a creditor must even produce his authority in writing, if so requu'ed by the court. {Reg. v. Registrar of Greemcich Coiiiiff/ Court, L. E. 15 106 HAXKKIPTCY. Q. 13. D. 01; 51 L. J. (>. r.. 392; 33 W. 11. G71 ; 53 L. T. 90'2 ; 2 MoiTell, 175, overruHng Be Lamlrovk, 1 Morrell, 21.) The official receiver is also to take part in the examination, and the coui't may put cpiestions to the debtor, and a trustee, if one is appointed before the conelusiou of the examination, may also take part therein. The examination is upon oath. Notes as the court thinks proper are taken down in writing, read over to and signed by the debtor, and may be used tliere- after in evidence against him. When the com-t is of opinion that the affairs of the debtor have been sufficiently investigated, it shall by order declare that his examination is concluded, but such order shall not be made until after the day appointed for the first meeting of creditors. (Sect. 17.) Q. When is the first meeting of creditors to be held ? A. It is to be summoned for a day not later than fourteen days after the date of the receiving order, unless the com't other- wise orders. The day is fixed by the official receiver, who also gives notice of it to the Board of Trade, who are to gazette the same, and seven days' notice of the time and place is to be given in the London Gazette and a local paper. The official receiver is also to give three days' notice to the debtor of the time and place appointed, (li. 1, 2, Sched. 1.) Q. What is the duty of the official receiver in relation to the first meeting of creditors ? A. As soon as practicable he is to send to cacli creditor a notice of the time and place of the first meeting, with a summary of the statement of affau's, including the causes of failm*e and any observations thereon which the official receiver may think fit to make ; but tlie proceedings at the fii'st meeting are not to be invalidated by reason of sucli simimary or notice not having been sent or received before the meeting. (Ride 3, Sched. 1.) Q. Wliat is tlie duty of the debtor as to preparing ]iis state- ment of affairs y A. Every debtor is to be fui'nished by tlie oificial receiver with instructions for the preparation of his statement of afi'airs, THE PETITION, RECEIVING OKDEK, ETC. 107 and it is liis duty to attend upon the official receiver at such time and place as may be appointed. (E, 217, 324.) Tlie official receiver, or some person deputed by him, is forthwith to hold a personal interview with the debtor for the purpose of investigating his affairs and determining whether the estate can be summarily administered as a small bankruptcy. (R. 324.) The debtor is to submit to the official receiver a statement made out in duplicate, one copy of which is to be verijfied by affidavit showing the particulars of the debtor's assets, debts, and liabilities, the names, residences, and occupa- tions of his creditors, the securities held by them respecti^'ely, and the dates when they were given, and such other informa- tion as may be prescribed or as the official receiver may require. (Sect. 16, r. 217.) Q. Within what time is the foregoing statement to be sub- mitted ? A. If the receiving order is made on the petition of the debtor, within three days from the date of the order, but if on the petition of a creditor, within seven claj^s. If the debtor fails without reasonable excuse to comply with the requirements of this section, the court may, on the application of the official receiver or of any creditor, adjudge him bankrupt. (Sect. 16.) Q. Wlio may inspect the foregoing statement ? A. Any person stating himself in WTiting to be a creditor of the banki'upt, may, personally or by agent, insjiect this state- ment at all reasonable times and take any copy thereof or extract therefrom ; but any person uutruthf ullj^ so stating himself to be a creditor shall be guilty of contempt of court, and sliall be pmiishable accordingly on the applicntion of the trustee or of the official receiver. (Sect. 16.) Q. When may a debtor be adjudged bankrupt ? A. A receiving order being made, if the creditors at the ffi^st meeting — (1) By ordinary resolution resolve that the debtor be ad- judged bankrupt ; or (2) pass no resolution ; or (3) if the creditors do not meet ; or (4) if a composition or scheme is not accepted or approved ■^^■ithin fuurtci'U lOS HANKRUPTCY. days after the conclusion of tlie examination of the (h^tor or sucli further time as the com-t may allow, the court must adjudge a dehtor bankrupt, and thereupon his property vests in a tinistee, who will he the official receiver until one is appointed hy the creditors. (Sect. 20.) Further, if a dehtor does not properly submit a statement of affau-s he may be aroof of the creditor should be admitted or rejected, he should mark the proof as objected to, and allow the creditor to vote subject to the vote being declared invalid in tlio event of tlie objection being sustained. (Sched. 1, r. 14.) Q. What is necessary to entitle a creditor to vote in respect of a debt secured by a cm-rent bill of exchange or jiromissory note held by him ? A. lie may not vote in respect of such a debt unless he is willing to treat the liability to him thereon of every person wlio is liable thereon antocodcntly to the debtor, and against whom a receiving order has not been made, as a security in his hands, and to estimate the value thereof; and for tlie purposes of voting, but not of dividend, to deduct it from liis proof. (Sched. 1, r. 11.) PROOF OF DEBTS, MEETINGS, AND VOTING AT MEETINGS. 115 Q. May a creditor of a firm prove against the separate estate of a bankrupt partner and vote at tlie meetings relating to such estate ? A. He may do so. (Sched. 1, r. 13.) Q. State some of the chief rules relating to proxies. A. (1) The creditor may vote either in person or by j^roxy ; (2) proxies are to be in the prescribed form issued by the official receiver or the trustee, and every insertion therein is to be in the hand^vl•iting of the creditor ; (3) they are to be deposited with the official receiver or the trustee before the meeting at which they are to be used. (Sched. 1, rr. 15, IG, 19.) Q. To whom may proxies be given by creditors ? A. (1) A creditor may give a general proxy to liis manager or clerk, or any other person in his regular employment. In this case the proxy is to state the relation of the person to whom it is given to the creditor. (2) The creditor may give a special proxy to any person to vote at any specified meeting or adjourn- ment thereof, for or against any specific resolution or for or against any specified person as trustee or member of the com- mittee of inspection. (Sched. 1, rr. 17, 18.) Q. What is the penalty upon a trustee or receiver for using solicitation to obtain a proxy or procm-e a trusteeship or receiver- ship ? A. Unless the solicitation was by direction of the creditors, the court has power to order that no remuneration be allowed to the person by whom or on whose behalf such solicitation had been exercised, notwithstanding any resolution of the committee of inspection or of the creditors to the contrary. Q. When may or must a trustee summon meetings of cre- ditors ? A. He may from time to time summon general meetings for the purpose of ascertaining the wishes of the creditors, and it is his duty to summon them at such times as the creditors by reso- lution, either at the meeting appointing a trustee or otherwise, may direct, or whenever requested in waiting so to do by one- fom-th in value of the creditors. (Sect. 89, par. 2.) 1 2 116 liANKUUPTCY. CHArXER IV. EFFECTS OF liANKUUPTCY. Q. Wliat proport y will vest in the trustee in bankruptoy ? A. (1) All such property as may belong to or be used by the bankrupt at the commencement of the banki'uptcy, or may be acquired by or ma}' devolve upon him before liis discharge ; (2) the capacity to exercise and to take proceedings for exer- cising all such powers in respect of property as might have been exercised by the bankrupt for his ovni benefit at the commence- ment of the bankruptcy or before his discharge, except the right of nomination to a vacant ecclesiastical benefice ; and (-3) all goods being, at the commencement of the bankruptcj-, in the possession, order or disposition of the banki'upt in his trade or business by the consent and permission of the true 0A\aier under sucli circumstances that he is the rei)uted owner thereof; jiro vided tliat things in action other tlian debts due or growing due to the bankrupt in the com'se of his trade or business, are not to be deemed goods witliin the meaning of this provision. (Sect. 44.) Q. AVhat property of a bankrupt is not divisible amongst his creditors ? A. (1) Property held by the bankrupt on trust for any other person ; (2) the tools, if any, of his trade and the necessary wearing ajiparel and bedding of himself, his wife and childi-en, to a value inclusive of tools, api»arel and bedding not exceeding 20/. i>erty disclaimed, and also dis- charges the tnistee from all personal liabilit}'- in respect of tlie projierty disclaimed as from the date when the property vested in liim, but does not, except so far as is necessary for the pur- pose of releasing the bankrui)t and his property and the trustee EFFECTS OF UANKli.Ul'T(;y. 12U from liability, affect the riglits or liabilities of any other person. (Sect. 55, par. 2.) The disclaimer does not put an end to an under-lease, and the under-lessor, though he cannot sue the under-lessee directly, can distrain or re-enter for breach of any of the covenants in the original lease, including the covenant to i>ay rent. (See Smallei/ v. ILtrdiiigc, L. 11. 7 U. B. D. 524 ; 50 L. J. Q. B. 365 ; 29 W. R. 554 ; 44 L. T. 503 ; Rv parte Walton, re Levy, L. E. 17 Ch. D. 746 ; 50 L. J. Ch. 657 ; 45 L. T. 1 ; 30 W. R. 395.) Q. What order may the com't make to protect persons inter- ested in any disclaimed property P A. It may make an order vesting the property in, or order it to be delivered to, any person entitled thereto or to whom it may seem just that the same should be delivered, or to a trustee for him ; but where the property is leasehold the coiu-t is not to make a vesting order in favour of any person claiming under the banlo-upt, except upon the terms of making such person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the pro- perty at the date when the bankruptcy petition was filed ; and if a mortgagee or under-lessee declines to accept the vesting order upon those terms, he is to be excluded from all claims to the property, and the com't may vest it in any person liable to perform the lessee's covenants either alone or jointly with the bankrupt free from all interests created by the bankrupt. That is, the court may vest the lease in a former owner of the term. (Sect. 55, par. 6.) Q. Are there any rights of action, vested in the bankrupt, which do not pass to his trustee in bankruptcy ? A. Those relating to injuries to his person or feelings, and arising from breach of contract, as of promise to marry or to cure a disease, do not pass to the trustee. {Beckham v. Drake, 2 H. of L. C. 519; 11 M. & W. 315; 13 Jur. 921.) Nor do actions of personal tort resulting in direct injuries to the feelings, as actions for libel or assault, pass to the trustee ; but all ordinary actions for contract or torts to property do pass to the trustee. (Baldwin, 189, 190.) 124: 15ANKKIPTCY. Q. "Wliat is iiioant Ly the roimtiHl ownersliip clause ? A. It is the section (44) in tlie Bankruptcy Act Avhich passes to the trustee in bankruptcy all goods being at the commence- ment of the bankruptcy in the possession, order or disposition of the bankrupt in his trade or business by the consent and per- mission of the true owner under such circumstances that the bankrupt is reputed OAMier ; provided tliat tilings in action, other than debts due or growing due to the bankrupt in the course of his trade or business, are not deemed goods within the meaning of the section. Q. State any recent change in the doctrine of reputed owner- ship. A. I'ndcr the present Bankruptcy Act of 1883, it is confined to goods in the possession, order or disposition of the banki-upt in his trade or business ; formerly it extended to all goods in the possession, order or disposition of the bankrupt, provided he was a trader, and would, therefore, comprise fm^niture and other chattels at the dwelling-house of the debtor. Q. State generally what will and what will not be " goods " within the meaning of the possession, order and disposition clause. A. By goods is meant personal chattels. (Sect. 168.) But fixtures, growing crops, annuities, co})yriglits, patents, and choses in action, other than debts due to the bankrui)t in the course of his trade, are not within the clause. A debentm-e and a policy of assurance are choses in action and not within the claiLse. (Baldwin, 200, 204.) Q. Goods which are the separate property of a partner in a firm are allowed by him to remain in the po.ssession of the firm as if they were partnership property. On the bankruptcy of the firm are these goods applicable to the payment of 1 lie firm debts or of those of the partner to whom they belong ? A. Under the possession, order and disjwsition clause, they will pass to the trustee hi baiikruiil(y of the linn, ami be divisible among the partnership creditors. Q. What should bo done by an assignee of trade debts in order to prevent the same from being subject to the possession, EFFECTS OF BANKRUPTCY. 125 order or disposition clause in case of the assignor's bank- ruptcy ? A. He should give notice of the assignment, but it is sufficient if the debtors have notice of the assignment in any way. (Bald- win, 215, 216.) Q. The lessee of an inn hires furniture, and then becomes bankrupt ; does the f urnitiu-e pass under the order and disposi- tion clause to his trustee in bankruptcy ? A. No ; it does not pass to the trustee in bankruptcy, as there is a well-established custom that innkeepers are in the habit of hiring furniture, and even though they have not hired it, but if as a fact the furnitm-e belongs to some one else, it will not pass under the possession, &c. clause. (Crawcoiir v. Salter, L. R. 18 Ch. D. 30 ; 51 L. J. Ch. 495 ; 30 W. R. 21 ; 45 L. T. 62 ; Er parte Tiirquand, Re Parker, L. R. 14 Q. B. D. 636 ; 54 L. J. a. B. 242 ; 33 W. R. 437 ; ^^^j L. T. 579.) Q. Give other examples of cases where the possession, order and disposition clause does not apply. A. It does not apply to goods left by a customer ^vitll a tradesman for alteration or addition, nor to books left with a bookseller to be sold by him on commission, nor to horses sent to a horse dealer " on sale or return," nor in the case of the agist- ment of cattle ; nor to wine left at the seller's till required by the purchaser, according to the custom of the wine trade. (Baldwin, 218, 219.) Q. State the duties of a debtor against whom a receiving order has been made in relation to the discovery of his property. A. He is to attend unless prevented by sickness or other suffi- cient cause at the fu-st meeting of his creditors, and to submit to such examination, and give such information as the meeting may require. He is to further give such inventory of his propert}-, list of his creditors and debtors, and to submit to such examina- tion, attend such other meetings of his creditors, wait at sucli times upon the official receiver, trustee, &c., execute such powers of attorney, deeds, &c., and generally to do such acts in relation to the distribution of his property as may be reasonably required by the official receiver or the trustee, or may be ordered by the court. (Sect. 24, pars. 1 and 2.) 126 BANKRUPTCY. Q. Wliat is the consequence of a debtor failing to perform any of tlie foregoing duties or to deliver up possession of any part of his property ? A. In addition to any other punishment to which he may be subject he is guilty of a contempt of court and may be punished accordingly. (.Sect. 24, par. 4.) Q. May a debtor be ordered under the foregoing pro-s-isions to file a cash account of receipts and pa^nnents, or to submit to a medical examinatitm for the purjiose of insuiing his life ? A. He may. under special circumstances, be ordered to file a cash account, but cannot be compelled to submit to a medical examination to effect an insurance. (Ex parte Jloir, lie Moir, L. R. 21 Ch. D. 61 ; 51 L. J. Ch. 931 ; 30 AV. R. 738 ; 47 L. T. 267; Ex parte Crairford, 28 L. T. 244; Ex parte BuUoch, Re Garnctt, L. R. 16 Q.B. D. 698 ; bo L. J. Q. B. 77; 34 W. R. 79 ; 53 L. T. 769 ; 2 Morrell, 286.) (I. T^Tiat power has the court to make orders in relation to the discovery of the debtor's property ? A. It ma}-, on the application of the official receiver or trustee at any time after the recei\'ing order, summon before it the debtor or his wife, or any person suspected to have in his posses- sion any of the property of the debtor, or any person wliom the court may deem capable of gi\^ng information about the debtor or liis property ; and the court may require any such person to produce any documents in his or her custody relating to the debtor and his property. If such person disobeys the order, having been tendered a, reasonable sum for expenses, the com-t may cause him to be apprehended. The court may examine such person on oath, either by word of mouth or interrogatories. (Sect. 27.) Q. Wliat order may bo made against a person who in such examination admits himself to be indebted to the bankrupt, or to have in his possession any of the latter's property? A. An order may be made for payment to the receiver or trustee of the debt admitted, or iov delivery of the property. (Sect. 27, pars. 4 and •").) Q. What order may the court make for the seizure of the property of the bankrupt ? EFFECTS OF BANKRUPTCY. 127 A. A person acting under the warrant of the court may seize any of the property of the banlaaipt in possession of the bank- rupt or of any other person, and with a view to such seizure may break open any house, building, or room of the bankrupt wliere the banki-upt, or any of his property is supj)osed to be, and if the coui't is satisfied that there is reason to believe that the i)ro- perty of the bankrupt is concealed in a house or place not belonging to him, the comi may grant a search warrant to any constable or officer. (Sect. 51.) Q. State what voluntary settlements are avoided by the banki'uptcy of the settlor ? A. Any settlement of proj)erty not being a settlement made before and in consideration of marriage, or made in favour of a pm-chaser or incumbrancer in good faith, and for value, or a settlement made on or for the wife or childi'en of the settlor of property which has accrued to the settlor after marriage in right of his wife, if the settlor becomes bankrupt within two years after the date of the settlement, is void against the trustee in bankruptcy ; and if the settlor becomes bankrupt at any subse- quent time within ten years after the date of the settlement, is void against the trustee in banki-uptcy, unless the parties claim- ing under the settlement can prove that the settlor, at the time of making the settlement, was able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execution thereof. (Sect. 47, par. 1.) Q. State what transactions will come within the meaning of the word " settlement" in the last answer. A. Not only formal settlements, but any mere transfer of money or property, where the object is to preserve it as property for the enjoyment of some other person, fall within the section. {Ex parte Pla//cr, L. R. 15 Q. B. D. 682 ; 54 L. J. Q. B. 554; 2 Morrell, 265.) Q. Is any covenant or contract in consideration of marriage for the future settlement on the settlor's wife and childi'en, void imder the Bankruptcy Act ? A. If such a covenant or contract relates to money or pro- perty, wherein the bankrupt had not at the date of the marriage 128 BANKRITTCY. any estate or interest, wlietlier vested or contingent, in posses- sion or remainder, and not being money or property of or coming to the bankinipt in right of his A\ife, it shall, on the settlor be- coming bankrupt before the property or money has been actnally transfeiTed or paid pm-suant to the contract, be void against his trustee in the bankiaiptcy. (Sect. 47, par. 2.) This section, however, does not affect the covenant for the future payment of a sum of money not specifically ear-marked. {Ex parte Bishop, lie To)i»ie.s, L. il. 8 Ch. 71S ; 42 L. J. Bank. 107 ; 28 L. T. 862 ; 21 W. R. 716 ; Kr parte Cooper, lie Knight, 2 Morrell, 223.) Q. lias a trustee in bankruptcy ever a title to property which, if the debtor had not become baukiaipt, woidd not have belonged to him ? A. Yes ; the trustee may be entitled to — (1) Property conveyed or settled by the bankrupt in fraud of his creditors, either under the 13 Eliz. c. 5, or sect. 47 of the Bankruptcy Act. (2) Property which has been transfeiTcd by tlie debtor by way of fraudulent preference. (3) Property of a third party in the order and disposition of the bankrupt in the way of his trade. (Sect. 44.) (4) Property comprised in an unregistered absolute bill of sale, wliieli is valid as against the grantor himself but void against the trustee. (5) Chattels not described in the in^-entory to a bill of sale by way of mortgage, the assignment of which is also valid as against the grantor but void against his trustee. Q. What are the rights of the landlord as to rent due from the banki'upt 'r' A. He may at any time, before or after the commencement of the bankruptcy, distrain upon the goods or effects of the banki'upt for rent due to him, but if lie distrains after the com- mencement (jf tlie bankruptcy lie may only do so for one year's rent accrued prior to tin? date of tlie order of adjudication, and must prove under the bankrujitcy for the siu'plus. Order of adjudication includes in this case an order for llie administration of the estate of a debtor Avhose debts do not exceed 20/., or of a deceased person who dies insolvent. (Sect. 42.) EFFECTS OF UANKHUPTCY. 129 It must be remembered that, for rent accruing after tlie order of adjudication, there is no limit to the landlord's right to dis- train. Q. How does the Bankruptcy Act define a secured creditor ? A. As a person holding a mortgage, charge, or lien on the property of the debtor, or any part thereof, as a seciu-ity for a debt due to him from the debtor. (Sect. 168.) Q. State some persons who are secm^ed creditors within the meaning of the foregoing definition. A. A mortgagee, legal or equitable (as by deposit of title deeds), is a secured creditor ; so is a judgment creditor who has issued equitable execution against the land before bankruptcy ; so a plaintiff in an action on a bill of exchange, where money has, prior to the defendant's bankruptcy, been paid into court, is a secm'ed creditor ; and a creditor who has obtained a chara'ina" order nisi upon shares under 1 & 2 Vict. c. 110, has a security ; but the holder of bonds, bills or promissory notes has not a secmity. (Baldwin, 290.) Q. What courses are open to a mortgagee in relation to his secmity in case the mortgagor becomes bankrupt ? A. Whether legal or equitable, he may either take proceed- ings in Chancery to realize his secm-ity, or he may apply in the Bankruptcy Cornet to do so. The latter Com-t will not as a rule restrain an action in Chancery by the mortgagee for foreclosure or sale, or the exercise by him of any of his legal rights ; and will only interfere to restrain an action by him where there is evidence of facts impeaching the validity of the mortgage deed, and there is also ample security to the mortgagee. Q. What application may a mortgagee make in relation to his secm-ity in the Bankruptcy Court ? A. Upon motion by him, whether the mortgage is legal or equitable, the court shall proceed to inquire whether such person is mortgagee, and for what consideration, and under what cir- cumstances ; and it may then direct proper accounts and in- quiries for ascertaining the principal, interest and costs due to tlic mortgagee, and the rents and profits, &c. received by him or for his use in case he has been in possession ; and the coiu't, if satisfied that there ought to be a sale, is to direct notice of such N. K 130 KAXKUITTCY, sale to be inserted in the newsi»apers, and the trnsteo is to have the conduct unless otherwise ordered. At any such side the mortgagee may bid and purchase. (1\. 73.) Q. Wliat application is to be made of the proceeds of such sale 1'' A. They are to be applied, in the lu'st place, in pajTnent of the costs of the trustee occasioned by the application to the court, and, in the next place, in pajinent of what is found due to the mortgagee, and the sm-plus to the trustee. In case the monies arising from the sale are insufficient to satisfy the mort- gagee, he may prove for the deficiency, and receive dividends rateably with other creditors, but not so as to distm-b a dividend already declared. (R. 75.) Q. What order may be made as to the letters of a bankrupt ? A. "Where a receiving order is made against a debtor, the court may, on the appHcation of the official receiver or trustee, from time to tune order that for such time, not exceeding three months, as it thinks fit, post letters addressed to the banki-upt shall be re-directed and delivered by the Post Office to tlie official receiver or trustee, or otherwise as the eom-t directs. (Sect. 26.) Q. The trustee of tlie bankrupt sells tlie goodwill of the bankrupt's business ; after the conveyance the bankrupt himself commences to carry on the same business in the immediate neighbourhood, and to solicit customers of the old business to deal with him. The jiurchaser of the business brings an action to restrain the bankrupt from so soliciting the old customers ? Will he succeed ? A. The bankrupt, not liaving joined in the assignment to the purchaser, may solicit the old customers ( WaUior v. Mottram, L. l\. 10 Ch. D. 355 ; 51 L. J. Ch. 108 ; 30 W. 11. 1G5 ; 45 Ij. T. 059) ; but even if he had joined in the conveyance to the purcliaser, unless he had covenanted not to solicit the old customers, he might do so. {PcavHon v. Pearson, 27 Ch. D. 145.) Q. Can trust fimds in the jiossession of a trustee who has become bankrupt be followed into the hands of the trustee in bankruptcy ? A. Tluy can be followed so long as tliey can be identified, EFFECTS OF J5ANKRUPTCY. 131 and, if changed into other property, can still bo followed so long- as the changes can be traced, unless the rights of piu'chasers for value intervene. Q. "Wliat penalty does an undischarged bankrujit, who obtains credit to tlie extent of 20/. or upwards, subject liiniseH to ? A. If he obtains this credit without informing the person giving it that he is an undischarged bankrupt, he is guilty of a misdemeanoui', and may be punished as if he had been guilty of a misdemeanour under the Debtors Act, 1869. (Sect. 31.) Q. What is the effect of the bankruptcy of a master, upon the articles of clerkshijD of an articled clerk, or the indentures of an apprentice P A. The adjudication of bankruptcy shall, if either the banki'upt, or the apprentice, or clerk gives notice in ^\Titing■ to the trustee to that effect, be a complete discharge of the in- dentm^e or articles ; and if any money has been paid by or on behalf of the ai:)prentice or clerk to the bankrupt as a fee, the trustee may, on the application of the apprentice or clerk, or of some person on his behalf, pay such simi as the trustee, subject to an appeal to the com't, thinks reasonable, out of the bankrupt's property, to the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he has served, and to the other eircmnstances of the case ; but if it appears expedient to the trustee, he may, on the appli- cation of any apprentice or articled clerk, transfer the indenture of apprenticeship or articles of agreement to some other person. (Sect. 41.) Q. What disqualification attaches to a peer on being adjudged bankrupt ? A. He cannot sit or vote in the House of Lords. (Sect. 32.) Q. State some other disqualifications attaching to persons who have been made bankrupt. A. A member of parliament is disqualified for being elected to, or sitting or voting in, the House of Commons or on any committee thereon. So a bankrupt cannot be appointed or act as a justice of the peace, or be elected or hold the office of mayor, alderman or councillor, guardian or overseer of the poor, member of a sani- k2 132 BANKRUPTCY. tary authority, a sdiool }3oard or highway board, a hurial hoard, or a select vestry. (Sect. 32.) Q. When will the above disqualifications cease ? A. Wlieu the adjudication of bankruptcy is annulled, or when a debtor obtains from the court his discharge, with a certificate to the effect that liis bankruptcy was caused by misfortune ■without any misconduct on his part. (Sect. 32.) Q. What is the procedui-e in case a member of the House of of Commons is adjudged bankrupt ? A. If the disqualifications are not removed within six months from the date of the order, the court is to ceriify the same to the Speaker of the House of Commons, and thereupon the seat of the member becomes vacant. (Sect. 33.) CHAPTER V. DIVIDENDS. Q. "Wliat is the duty of a trustee before declaring a final dividend ? A. When he has realized all the property of the bankrupt, or so much thereof as he can, in tlie joint opinion of himself and of the committee of inspection, without needlessly protracting the trusteeship), he is to declare a final dividend and give notice thereof to all persons whose claims have been notified to him but not established to liis satisfaction, that if they do not estab- lish their claims to the satisfaction of the court within the tiine limited by tlie notice, he will proceed to declare a final dividend without regard to their claims. After the expiration of such time or any further time granted by the court, the property of the bankrupt is t(j be divided amongst the creditors who have proved their debts, without regard to the claims of any other persons. (Sect. 62.) Q. What is the position of a creditor who has not proved his debt before the declaration of a dividend ? DIVIDENDS. 133 A. lie is entitled to be paid out of any money for tlio time being in tlie Iiands of the trustee any dividends lie may have failed to have received, before that money is applied to the pay- ment of any futm^e dividend or dividends, but he is not entitled to distm-b the distribution of any dividend declared before his debt was proved by reason that he has not participated therein. (Sect. Gl.) Q. What becomes of the sm-plus property of a bankrupt after payment of the debts ? A. It is to be applied in payment of interest from the date of the receiving order at the rate of f oiu' per cent, per annum on all debts proved in the banlvruptey ; and the bankrupt is entitled to any sm^plus remaining after any such payment of interest and payment of the costs of the bankruptcy proceedings. (Sect. 40, par. 5 ; sect. 65.) Q. What course must the trustee adopt as to unclaimed dividends ? A. Where he has under his control any dividend which has remained unclaimed for more than six months, or where, after making a final dividend, he has under his control any undistri- buted monies, he is to pay the same into the Bankruptcy Estates Account at the Bank of England. (Sect. 162.) Q. May the person entitled to any unclaimed dividends paid in to the Bankruptcy Estates Account obtain payment of the same ? A. He may apply to the Board of Trade for payment thereof, and if the Board is satisfied that he is entitled, it can make an order for payment to him. There is an appeal to the High Com-t from the Board of Trade. {Ibid. par. 4.) Q. When are the first and subsequent dividends to be declared ? A. The first dividend is to be declared and distributed before the expiration of fom- months after the first meeting of creditors, unless the trustee satisfies the committee of inspection that there is sufficient reason for postponing the declaration to a later date. Subse(|uent dividends in the absence of sufficient reason to the contrary are to be declared and distributed at intervals of not more than six months. (Sect. 58, pars. 1 and 2.) 134 jiANKKurrcY. Q. "Wliat is the chitj of the trustee in distributing a dividend to creditors residing at a distance ? A. It is liis duty to make jirovision ft»r debts provable and appearing to bo (bie to persons resident in places so distant that in the ordinary oourso of communication they have not had sufficient time to tender their proofs, or to establish them if disputed ; also for debts provable in bankruptcy, the subject of claims not yet detennined. (Sect. GO.) Q. AVhat notice is the trustee to give of his intention to declare a di-sidend ? A. Not more than two months before declaring a dividend the trustee is to give notice of his intention to do so to the Board of Trade in order that the same may be forthwith gazetted, and at the same time to such of the creditors mentioned in the bank- rupt's statement of affairs as have not yet proved their debts. This notice is to specify the latest day up to which proofs are to be lodged, which is not to be less than foiu'teen days from the date of such notice. (R. 232.) Q. AVhat course should be adopted by the trustee before de- claring a di\idend ? A. He is to cause notice of his intention to do so to be gazetted, and is also to send reasonable notice thereof to each creditor who has not proved his debt. AYlien the trustee has declared a dividend, he is to send to each creditor who has proved, a notice sliowing the amount of his dividend, when and how payable, and a statement of tlio particulars of the estate. (Sect. 58, pars. 4, 5.) Q. What is the riglit of a joint creditor of a firm to dividends out of the separate property of a bankruj)! member of tlie firm ? A. He liiis \M right to receive a dividend unlil all tlie separate creditors liave been paid in full. (Sect. b\), ]iar. 1.) Q. "Wliat is the rule as to the declaration of dividends of joint and separate properties? A. Tlie dividends of the joint and se])arate projtei-ties are, unless (jtlierwise ordered, to be declared together, and the ex- penses are to be ;i])portioned between the estates by the trustee. Q. Does an action He against a trustee for a dividend ^ If not, how is paj'ment of the dividend enforced !•' DIV1DENJ)S. 135 A. No action Avill lie, but if the trustee refuses to pay it, tlie court may order liini to pay, and also to pay out of his own money interest for the time that it is withheld, and tJie costs of tlie np2)lication. (Sect. 53.) Q. Wliat courses are open to a secm^ed creditor who desires to share in a dividend ? A. He may (1) if he gives up his security prove for his w^hole deht; (2) if he estimates its value he may prove for the balance ; or (3) if he chooses to realize it he may prove for the deficiency. (Sched. 2, rr. 9, 10, 11.) Q. The creditor of a firm has a separate security upon the es- tate of a partner in the firm. May he prove for his whole debt against the joint estate while retaining the separate secmity ? A. He may do so, because the ordinary niles as to a secured creditor relate only to the case where the security is on the pro- perty belonging to the estate, against whom there is a right of proof, and not where the secmity is over the property of a third person. (Baldwin, 335, 336.) Q. If a secured creditor does not realize or surrender his secmity, what must he do to entitle himself to rank for divi- dends ? A. He must state in his proof tlie particulars of his secmity, the date when given, and the value at ^vhieh he assesses it, and he is then entitled to a dividend in respect of the balance. Q. What course may a trustee adopt after such proof as in the last answer mentioned ? A. (1) He may redeem the security on pa^aiient to the creditor of the assessed value, or (2) if dissatisfied with the assessment, he may require it to be offered for sale on terms to be agreed upon between himself and the creditor, or in defaidt of agreement, as settled by the court. A creditor may force the trustee to say whether he will redeem or not, by gi^'ing him notice in writing, and if the trustee does not within six months after such notice signify his election to redeem, it will cease. (Sched. 2, r. 12.) Q. May a creditor amend the valuation of his proof ? A. He may do so on showing to the satisfaction of the trustee or the court that the valuation was made bond Jide ujion 136 liANKlUl'TCY. a mistaken ostimato, or that tlio poourity has diminishocl or in- creased in vahie since its previoiLS vahiation. If the creditor, haWng vahied liis security, subsequently realizes it, or it is re- quired to he sokl by tlie trustee, the net amount reahzed is to be substituted for the amount of any vahiation pre\iously made by the creditor. (Sdied. 2, r. 15.) Q. Wliat is the rule as to the application of tlio joint and separate projierty of bankrupt partners ? ^i. The joint estate is appliiable, in the first instance, to pay- ment of the joint debts, and the separate estate of each partner is applicable, in the first instance, to tlie payment of his separate debts. If there is a sm-plus from the separate estate, it is dealt with as part of the joint estate. If there is a sm-plus from the joint estate, it is to be dealt with as part of the respective sei)arato estates of the partners in proportion to tlie rights and interest of each partner in the joint estate. (Sect. 40, par. 'S.) Q. Can a proof ever bo made by the trustee on behalf of the partnership estate against the separate estate of one of the indi- vidual partners ? A. Only where a partner has fraudulentl}' converted to his o^^^l use property belonging to the firm. (Baldwin, 343.) Q. Under what circumstances can a partner prove against tlie separate estate of a banla-upt co-partner; the firm being also bankrupt ? A. He cannot prove, so long as any joint debts exist to meet which tlio sm-plus separate estate would be ap[>licable, but (1) if there never were any joint debts, or (2) if the joint debts had been paid in full, or (3) if there could not be any sm-plus of the separate estate available for the joint debts (as where the separate estate is insulKcient for the separate debts), a partner may prove against his co-pai-tner. (Baldwin, 345.) Q. AVhat rule exists as to proof against two several firms which have a common partner r* A. If a debtor was at the date of the receiving order liable in respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as a iiieiiiln'r of a firm, the cireumstance that the firms are in wlude or in ]iart conqxised of the same individuals, or that the sole contractor is also one of the DIVIDENDS. 137 joint contractors, is not to prevent proof in respect of tlio con- tracts against the principals respectively liable on the contracts. (Sched. 2, r. 18.) Q. AVliere a partner in the coiu'se of the partnersliip business commits a fraud against a third party, the firm having become bankrupt, what are the rights as to proof of the person so de- frauded ? A. He may i^rove either against the joint estate, or against the separate estates of the partner who committed the fraud, and any other partner privy to it or concerned in it {Ex parte Adam- son, Re Collie, L. E. 8 Ch. D. 807 ; 47 L. J. Bank. 103; 38 L. T. 917 ; 2G W. E. 890 ; Ex parte Chandler, Re Darison, L. E. 13 Q. B. D. 50 ; 50 L. T. Q'6b) ; but not against both joint and separate estates. Q. A., B., and 0. are partners in business. A. is also a trustee of certain trust funds which he -svTongly and in breach of trust employs in the business. The firm having become bank- rupt, the question arises as to the estate or estates against which proof may be made for the trust funds ? A. If the other members of the firm do not know or have no means of laiowledge of the character of the funds, A. only is liable, and proof must be against his estate alone, and not against the joint estate ; but if the firm had actual knowledge, or even means of knowledge, or if the misappropriation took jilace in the ordinary course of the business of the firm, the firm will be liable, and proof can be made against the joint estate. Q. What are the rights of a surety as to proof against the estate of a bankrupt debtor ? A. He has no right of proof until he has paid something on account of the debt to the creditor, or at least until the debtor ha\ing made default, the surety becomes liable to pay. (Bald- win, 348.) Q. What are the surety's rights when he has paid the debt ? A. If he pays it before the creditor has tendered a proof, he is entitled himself to prove for the whole debt ; l)ut if ]ie i")ays after a creditor has tendered a proof, he is entitled to stand in such creditor's place as to securities, dividends received, and other rights. (Baldwin, 318, 319.) 138 liANKUri'TtV. Q. "Wlien may a surety prove for contribution against the estate of a Lankinipt co-suret}' Y A. He can only do so when lie has paid more tlian liis just proportion. {Er parte Snoicdcn, lie Snoirden, 17 Ch. I), p. 44.) He may then either prove himself or stand in the principal cretlitor's place to the extent for which he may jirove, if the creditor has actually proved. Q. Upon what contlitions may a creditor prove for a debt payable at a date subsequent to the act of bankruptcy 'f A. He may prove for such a debt as if it were payable immediately, and may receive di^•idends ecpially with the other creditors, deducting only thereout a rebate of interest at the rate of 51. per cent, per annum computed from the declaration of a dividend to the time when the debt would have become payable according to the teims on which it was contracted. (Sched. 2, r. 21.) Q. Can a foreign creditor wlio has proved under a foreign bankruptcy prove in an English bankiniptcy Y A. He may do so upon the temis of giving credit for the amount received in di^'ideuds abroad. {Banco di Poriuyal against Waddell, L. E. o App. Ca. 161 ; 40 L. J. Bank. 33 ; 28 W. 11. 477 ; L. T. 698.) (^. AMiat is the position, as a creditor, of a man-ied woman ■who has lent money to her husband for the purposes of his trade or business ? A, She can only prove for the purpose of voting or di\idend after the otlier creditors are satisfied, and if she -w-ishes to prove erpially witli otlier creditors the onus hes upon the manicd woman to prove that money lent by her to her husband was not lent for the puqiose of his trade or business. (Married Women's Property Act, 1882, s. 3 ; Baldwin, 358.) Q. State generally Avhat claims may be proved in bankruptcy. A. Demands in the nature of unliquidated damages arising otliervNnse than by reason of a contract, promise, or breach of trust are not proveable ; nor can a person, liaving notice of any a/'/., par. 5.) Q. What is tlie consequence if the debtor makes default in pa}'ment of any instalment ordered to be paid by such adminis- tration order ? SMALL liANKRUPTClKS, ETC. 161 A. lie sliall, unless tlie contraiy is proved, T:»e deemed to have liad since the date of tlie order means to jiaj, and to have refused or neglected to pay. {Ihid., par. 6.) Q. Is the property of the debtor protected to any extent from execution from a county court judgment, where his total in- debtedness is under 50/. ? A. Where it appears to the registrar of the county coiu-t that the property of the debtor exceeds in value 10/., execution may be issued against his goods ; but his household goods, wearing apparel, tools, and the implements of his trade to the value in the whole of 20/., are protected from seizm-e. {Ibid., par. 4.) Q. Under what circumstances may the estate of a deceased insolvent be administered in bankruptcy ? A. Any creditor of a deceased debtor whose debt would have been sufficient to support a bankruptcy petition against such debtor had he been alive, may present a petition for an order for the administration of the deceased's estate according to the law of banlu-iiptcy. Upon the prescribed notice being given to the personal representative, the com-t may, upon proof of the petitioner's debt, unless satisfied that his estate is probably solvent, make an order for the administration in banla'uptcy of the deceased's estate. (Sect. 125, pars. 1, 2.) Q. How soon may an order for administration as just men- tioned be made ? A. Not until the expiration of two months from the date of the grant of probate or letters of administration, unless with the concmTcnce of the legal personal representative of the deceased, or unless the petitioner proves to the satisfaction of the court that the debtor committed an act of banla-uptcy within tlu'ee months prior to his decease. (Ihi'd. par. 3.) Q. What effect, if any, has the commencement of administra- tion proceedings upon the power of the com't to make an order as just mentioned ? A. If proceedings have been commenced in any com-t for the administration of the deceased's estate, no petition for adminis- tration in bankruptcy may be presented to tlie Bankruptcy Com-t, but the court in which the administration proceedings are going on may, on the application of an}' creditor, and on N. M l(;j HANKRUTTCY. proof that tlie estate is insufficient to pay its debts, transfer the proceedings to the Bankruptcy Court, wliich may then make an order for the administration of the estate upon which the like consequences ensue as under such an order made on the petition of a creditor ; Lut the power to transfer will not be exercised where the estate is small. (Sect. 12o, par. 4 ; JIi[/fjs v. IFeber, L. K 29 Ch. D. 236; 54 L. J. Cli. 749; 33 W. R. 874; 52 L. T. 512.) Q. State some additional points relating to the administration in banki-uptcy of a deceased insolvent's estate. A. (1) Upon the order being made for administration, the property is to vest in the official receiver as trustee, who is to realize and distribute the same. (2) He is to have regard to any claim by the legal personal representative for proper funeral and testamentary expenses, which is to be a preferential debt, payable in priority to all other debts. (3) Any sm-plus, after payment in full of the debts and the costs and interest, is to be paid to the personal representative. (4) Notice to the personal representative of the presentation by a creditor of a bankruptcy petition, is equivalent to notice of an act of banki'uptcy. {Ibid., pars. 5 — 11.) Q. The sheriff, having seized goods in execution, proposes to sell them by private contract to a pmx-haser : may he do so ? A. He may not do so. In case the execution is for a sum exceeding 201. including expenses, he must, unless the court otherwise provides, sell them by public auction, which must be publicly advertised for three days preceding the day of sale. (Sect. 145.) If the execution is for a sum imder 20/., they may be sold by private contract. ( 163 ) ECCLESIASTICAL LAW. CHAPTEE I. NATURE AND SOURCES OF ECCLESIASTICAL LAW : DEFINITIONS AND JURISDICTION. Q. Of what kind of laws does ecclesiastical law consist ? A. (1) Certain statutes, together -with various enactments made in pursuance of or ratified by statutes ; (2) certain parts of the canon law, and certain constitutions and canons issued by competent authorities ; (3) certain ecclesiastical usages, customs, or observances not put into ^vriting, save so far as to be found in judicial decisions, but recognized by, and supposed to be known to, the courts, i.e., the ecclesiastical common law. (Brice's Law relating to Public Worship, 1 and 2.) Q. "What value is attributed in ecclesiastical law to usage and custom ? A. Although they will not actually make the law, great importance is attributed to them in illustrating and interpreting it. (Brice's Public Worship, 10.) Q. What is the canon law ? A. It is a body of Roman ecclesiastical law, relating to such matters as the church either has, or pretends to have, the proper jm'isdiction over. It is compiled from the opinions of the ancient Latin fathers, the decrees of General Councils, and the decretal epistles and buUs of the Holy See. These various elements were reduced to order by Gratian, an Italian monk, in the year 1157, and they were afterwards added to by later Popes. (Steph. Comm., vol. i. p. 42, 8th ed.) Q. Is there any canon law peculiar to this country ? A. There is a National kind of canon law, composed of le"-a- tine and provincial constitutions. The former were laws enacted in certain national synods held m2 104 ECCLKSl ASTRAL LAW. between the years 1220 and 1208. Tli.- latter were the decrees of provincial s}Tiods held under various Archbishops of Canter- bury, fi-oni the reign of Henry III. to that of Henry YI. (Steph. Comm., vol. i. 8th ed. p. 43.) Q. Has the canon law any binding effect ui England? A. By 20 Hen. 8, c. 19, it was provided that a review should be made of the canon law, and that till such review all canons then made and not repugnant to the law of the land or tlie King's prerogative should be valid. No such review has ever been made, and, therefore, it is assumed that any canon contrary to common or statute law, or the royal prerogative, is void ; but that, subject to such proviso, the canons in force before the 25 Hen. 8, c. 19, are bmding, both on the clergy and laity, but that canons made since do not bind the lait}-, though it is usually assmned that they do bind the clergy. {Ibid., 43, 44.) Q. What are the ecclesiastical divisions of the country ? A. The country is divided into provinces, which are tlie boundaries of an archbishop's jmisdiction. Pro\inces into dioceses, presided o^•er by the bishops. Dioceses are divided into archdeacom-ies. Archdeaconries into rm-al deaneries. Em-al deaneries into parishes. {Ibid., p. 115.) Q. How may a church be defined ? A. As distinct from a chapel, as the mother or chief legal place of worship in a parish or other ecclesiastical district. Under all cii-cumstances it is subject to ecclesiastical jurisdic- tion, while chapels are not necessarily or always so. (Bricc, 14.) Q. Classify chapels, A. (I) Parochial chapels lune no rectory, and usually no endowment ; (2) chapels of ease, which are simple accessories to the mother church, and formed in districts which, from their area or population, re(|uire additional facilities for worship — they have the ordinary officials, and occasionalh' authority to admi- nister the sacrament and to bur}' ; (3) free chapels, which are exempt from the ordinary— they are such as are erected by the Sovereign, or a subject under a grant of letters patent; (4) pri- vate duqjels, built by private persons at their own expense, and NATURE AND SOLROES OE. 165 usually supported by the founder or liis rejDresentatives — they ought to he cousecrjited, or at least licensed ; (o) district chapels, erected under the provisions of the Church Luilding Acts — districts similar to parishes being assigned to the curate in charge ; (6) proprietary or subscription chapels, erected by pri- vate persons, either under the Church Building Acts or some special act, or even without authority, whether statutory or ecclesiastical. The difference between these and private chapels (No. 4) is, that the latter are intended for the use of a certain household, though the general public may be admitted, while the latter (No. 6) are intended for the general public. (Brice, 13—17.) Q. What is the common law right of bm-ial ? A. All baptized persons are entitled to christian burial in the burial place belonging to the church of the parish within whose boundaries they died, and not elsewhere ; but excommunicated persons and suicides are not entitled to have the bm-ial service read over them. (Blunt's Church Law, 177 — 187.) But by 43 & 44 Vict. c. 41, it appears that a service, consisting of prayers from the Praj^er Book and portions of the Scriptures, if approved by the ordinary, may be read over such persons. (Sect. 13.) Q. What was the common law rule as to the kind of burial service which it was obligatory to use in case of a burial in consecrated ground ? A. At common law the only service which could be used was that of the Church of England, read by a duly authorized minister of that chui'ch ; but by the Burials Act, 1880 (43 & 44 Vict. c. 41), on notice by a relative or friend of a deceased person that it is intended to bury such person in the chmx-hj'ard or graveyard without the rites of the Church of England, such burial is to take place in accordance with such notice. The burial may take place without any religious service, or with such " christian and orderly " religious service at the grave as shall be thougiit fit. The words " cluistian service " are to include every religious service used by any church or denomination professing to be chi'istian. 166 ECCLESIASTICAL LANN , CnAl'TEU II. OFFICERS OF THE CHURCH. Q. How are aroliLisliops and bishops appointed ? A. They are appointed l)y tlie prime minister, but a certain form of election by the chapter of the cathedral church, imder a licence called conge (Velirc from the cro^^^l, is gone tlirough. The crowTi sends this licence to the dean and chapter to proceed to the election, and ^vitli the licence a letter containing the name of the person to be elected. No other person may be elected, and if the election is delayed for more than twelve days the crown may nominate such person by letters patent. (25 Hen. 8, c. 20.) If the dean and chapter do not elect such person they incur the penalties of a praemunire. Q. State generally the duties and powers of the archbishop. A. He is the chief of the clergy in the pro-sdnce, and has VLsitatorial duties over the bisliops of the pro^'ince and the clergy ; he confirms the election of the bishops and aftenvards consecrates them. On receipt of the king's ^^Tit he summons Convocation. To him all appeals are made from inferior jurisdictions within bis province. Dm-ing tlie vacancy of any see in his proWnce he perfoimis the spiritual functions of bishop therein. He is entitled to present by lapse to any living in the disposal of any one of his diocesan bishops not filled Axithin six months. He may grant special dispensations not contrary to scripture and tlie law of God, where the Pope used formerly to grant them. AVhonce his jm-isdiction as to granting special licenses to marry, and the conferring of Lambeth degrees. (Stepli. Comm. vol. iii. 670—673, 8th ed.) Q. "Wliat are the powers and duties of a Ijisliop ? A. He is the chief of tlio clergy witliin his diocese, and he must pay obedience to the arclibishop. OFFICERS OF THE CHURCH. 167 lie ordains priests and deacons, consecrates cliiirclies, and visits liis clergy, institutes and directs induction to all livings in his diocese, and licenses cm-ates. He is an ecclesiastical judge, but his chancellor is appointed to hold his consistory courts for him, and to assist him in matters of ecclesiastical law. (Steph. Comm. vol. iii. 673, 674.) Q. What is a suffragan bishop ? A. The ordinary pro\'incial bishops are sometimes called suffragans, as being deputies of the archbishop ; but, more properly speaking, suffragan bishops are assistant bishops to the bishop of the diocese, appointed to help in ordinations, &c. {Ibid, 671, note {in).) Q. What is the legal position of the dean and chapter ? A. They are the council of the bishop, and assist him with their ad\'iee in affairs of religion, and also in the temporal concerns of the see. At one period the dean was elected by the chapter on a ro)ige d'eiire, in the same manner as bishops, but in later foundations the dean is appointed by letters patent from the crown. He is the head of the chapter, and has a general authority over it, and must be resident at the cathedi-al chm-ch at least eight months in the year. (3 & 4 Vict. c. 113, s. 3 ; Smith's Eccle- siastical Law, p. 40.) Q. What is a chapter ? A. It is a body composed of dignitaries called canons. The canons are in some cases appointed by the crown, some- times by the bishop, and sometimes by each other. They must reside three months in the year in the cathedi-al town. (Steph. Comm. vol. iii. pp. 677, 678, 8th ed.) Q. What is the authority of an archdeacon ? A. He has an authority subordinate to the bishop through a portion of a diocese. He has power of visitation, which may be exercised once every year, and must be exercised once in three years. The jmisdiction of the bishop and archdeacon is. concurrent, so that a suit may be commenced in either coiu^t. (Smith's Ecclesiastical Law, pp. 42, 43 ; Steph. Comm. vol. ii. p. 678, 8th ed.) 168 ECCLESIASTICAL LAW. (^. Wliat is a nu*al dean ? A. He was originally a deputy of the bishop, with a certain ilistriot allotted to him ; his duties were to execute the bishop's process, and to inspect the Hves and morals of the clergy within liis district, and report the same to the bishop ; his duties were superseded by those of the archdeacon, and, though the office has been recently revived, his present duties appear to extend only to making repoi-ts to his bishop. (Smith's Ecclesiastical Law, pp. 41, 42.) Q. AVhat declaration must be made by a priest or deacon before ordination ^ A. He must declare his assent to the doctrine of the Cliurch of England, as set forth in the Book of Common Prayer, and the Thirty-nine iVi'ticles, and the ordination service. And he must also take an oath of allegiance to the Queen, and of canonical obedience to the bishop. (28 & 29 Vict. c. 122, ss. 1, 4.) Q. What is meant by a " title " to ordination ? A. The 33rd Canon of 1603 provides, that no person is to be ordained unless he has been instituted to some preferment in the diocese, or has a certificate that he has some ministerial duties -w-ithin the diocese, or is a Fellow or Master of ^Vrts of five years' standing, living in either of the Universities at his own expense. Q. State some of the privileges of clergymen. A. They cannot be compelled to serve on a jmy, nor can they be chosen to any temporal office, as bailiff, constable, &.c. Their glebe and tithes can only be taken in execution by sequestration. (Steph. Comm. vol. iii. p. 064, 8th ed.) Q. ^lention .«iome of the disabilities of clerg}^uen. A. They cannot be members of the House of Commons, or aldennen, or countillors in borouglis. They may not farm more tlian eighty acres without pennission in writing from IIh- liishoi> of the diocese, nor carry on any trade, unless it be carried on I)}' UKm; than six partners, or the share in it lias devolved upon the clergyman by inheritance or other representative title, and even in these excepted cases they may not act as directors, or partners, or carry on the trade in person OFFICERS OF THE CHURCH. 169 (41 Geo. 3, c. 63; 5 & G Will. 4, c. 70, s. 28; 1 & 2 Vict. c. 106, ss. 28 — 30) ; but tliej may carry on the business of selioolmasters ; and so they may be managers, directors, partners, or sliaro- holders, in any benefit, fire, or life insurance society, or buy or sell to the extent necessarily incidental to the lawful occupation of land. (1 & 2 Vict. c. 100, ss. 28, 30.) Q. What is the penalty upon a clergyman offending against the provisions as to trade above mentioned ? A. For a first offence he may be suspended for any term not exceeding one year ; for a second, he may be suspended for such time as the judge thinks fit ; and for a third, he may be deprived of his office as clergyman, and of his benefice ; and the patron may appoint a new parson. (1 & 2 Vict. c. 106, s. 31.) Q. Can a clergyman resign his orders ? A. By the canon law he could not do so, but by the 33 & 34 Vict. c. 91 (the Clerical Disabilities Act, 1870), it is provided that any minister in the Church of England may be discharged from all disability and restraint he is under as a minister of that chui'ch, by resigning any preferment held by liim, and then executing a deed of rehnquishment, in the form in the schedule to the act ; which deed must be enrolled in the Chancery Division, and an office copy thereof sent to the bisho23 in whose diocese the minister has resided. At the expiration of six months from the time of such dehvery the bishop records the deed in the registry of the diocese, and thereupon the minister becomes incapable of acting as a minister of the Chiu'ch of England, and is free from all disabilities aris- ing from that office, but remains liable for any pecuniary liability incurred by him. But if during the six months the bishoj) has notice of any proceedings pending against such clerk, the latter will not be discharged from the liabilities of his ofiice until the proceedings have terminated. (Sects. 3 — 8.) Q. What provisions are there enabling a clergyman per- manently incapacitated by illness to resign his benefice Y A. By the Benefices Eesignation Act, 1871 (34 & 35 Vict. c. 44), on the representation of a clergyman, who has been the incumbent of the benefice for seven years, that he desii'es to resign, 170 ECCLESIASTICAL LAW. on tlie ground of permanent incapacih', the bishop may issue a commission to five persons, authorizing them to inquire into, and repoi-t upon, tlie expodioncy of the resignation. Certain notices of the intention to issue this commission are to be given. The commissioners may examine persons upon oath, and may specify the amount of pension which, in tlieir oi)inion, ought to be allowed to the retuing incumbent ; but such pension is in no case to exceed one third part of the annual value of the benefice. Unless the patron consents to the resignation and tlie pension, the ai'chbishop must decide whether it is expedient. Pensioned clerks are still amenable to ecclesiastical jurisdiction. (Sects. 5—13.) Q. What are the functions of the eliureliwardcns ? A. They are two members of the laity chosen in every parish, whose duty is said to be to inspect the morals and behavioui' of the parishioners, but really is to take care of the fabric and furniture of the church, and to act as representatives of the general body of the parishioners. (Steph. Comm. vol. iii. p. C()9, 8th ed. ; Smith's Eccl. LaAv, pp. 47, 48.) Q. How are the churchwardens chosen ? A. They are sometimes appointed by the minister, sometimes by the parish in vestry assembled, and sometimes by both minister and parishioners together, as the custom of the place directs. If there is no custom, tln'V iiiust, according to the canons, be chosen by the joint consent of the minister and parishioners, but if these cannot agree, the niinistor is to choose one and the parishioners another. They are to be chosen yearly in Easter week, are generally two in number, are obliged, wlien chosen, to serve, and are sworn to execute their office faithfully. (Stei.h. Comm. vol. iii. p. 699, 8th ed.) Q. State particularly the duties of clim'ch wardens. A. They are, for some pm'i)oses, a corporation at common law ; that is, they are enal)led (by the name of chm-ch wardens) to have a property in goods and chattels, and to bring actions for the benefit of the parish. One of their chief duties is the care of the goods and furnitiu'e of the church, as the organ, bells, Bible and parish books. But they have no interest in the fabric OFFICERS OF THE CIIl RCH. 171 of tlio chmx'li and ehiircliyard, and cannot bring an action for damage to it. Such an action must be brought by the vicar or rector. But the chui'chwardens must see to the repair of tlie church, and the collection of the church rates, which are not now comptdsory. The chiux'hwardens also regulate the arrangements as to sittings, and it is their duty to enforce proper behaviour during service. {Ibid., p. 702 ; Blunt's Church Law, pp. 254 —284.) Q. What are the respective rights of the rector and the church- wardens in the parish church, and the moveable goods thereof ? A. The freehold of the chiu-ch is in the rector, and the move- able goods in the churchwardens. (And see the last answer.) Q. In whom is the right of disposing and arranging the seats in the body of a parish church ? Has a person aggrieved by the disposal of the seats any remedy ? A. In the clim-ch wardens, and a party aggrieved may appeal from them to the ordinary, /. c. the bishop. Q. Is the payment of church rates now compulsory, and what is the consequence of a neglect or refusal to pay them ? A. It is not now compulsory, but those who do not pay are excluded from inquiring into, objecting to, or voting in respect of, the expenditiu-e of the church rates. (31 & 32 Vict. c. 109, s. 8.) Q. "What is a parish clerk ? A. He is said to be the representative of the lay clerks or choirmen of the parish. His duties are to assist the clergy in saying and singing divine service, by singing or saying the responses. He is often the same ];)erson as the sexton. He formerly had a freehold for life in his office, and it was very difficult to deprive him of it. But he may now be suspended or removed from his office for misconduct or neglect by an arcli- deacon or a bishop. (7 & 8 Vict. c. 59, s. 5.) He is appointed by the parson, vicar, or other incumbent for the time l)cing, unless there is a special custom in the parishioners to appoint. He must be twenty years of age. (91st Canon of 1603; Blunt's Church Law, pp. 287—294.) Q. Wliat are the duties of the sexton, and how is lie chosen ? A. He is the man who does the manual work necessary in the ECCLESIASTH AL l.AAV. churcli ; the keeper of the oluucli keys, aiul has the general charge of the chmvh, its cleansuig and hghting ; lie prepares the graves for the hiirial of the dead, and has the superinten- dence of the hellringers. A woman may be a sexton. lie is usually chosen hy the incumbent, though by special custom he may be chosen by tlie parishioners, lie has a free- hold in his office. (Blunt's Church Law, pp. 294—290.) Q. AVluit is the beadle ? A. lie is the bidder, crier, or messenger of the parisli. His duties are to attend upon the officers of the parish, tlie rector or vicar, churchwardens and vestry. He is hardly an ecclesiastical officer, but rather a soil of constable. He is appointed by the parisliioners in vestry, and can be dismissed by them at any time for misconduct. (Blunt's Church Law, pp. 290=, 297.) CHAPTER III. ADVOWSOXP, AND KIOIITS AND DUTIES OF PARSONS. Q. "Wliat is the parson of a parisli ? A. The rector, or parson, is a person that liath full possession of all the rights of a parochial church. (Steph. Cumin, vol. ii. p. G79, 8th ed.) The freehold of the parsonage house, the glebe, tlie titlies, and otlior dues, vest dui'hig his life in the parson. {Ibid. p. (J-'JO.) Q. State the fonnalities rec^uisite on the presentation of a clerk to a living. A. Tlie instrument of presentation, the clerk's order of deacon an-p. 84 — 86.) Q. What is the rule as to evidence in cases of perjmy ? A. There must be two witnesses to contradict what the accused has sworn, or at least one must directly contradict, and the other must materially corroborate that contradiction. But where the perjury consists in the defendant ha\ing contradicted what he swore on a former occasion, one witness in support of the defendant's own original statement will be sufficient to con- vict liim on the latter statement. (Hari'is, pp. 80, 87.) Q. What sort of an offence is perjmy ? What is the punish- ment? A. It is a misdemeanour : p. s. to seven years, or imp. for the same time. (2 Geo. 2, c. 25, s. 2.) Q. What is subornation of perjmy ? how is it punished ? A. The procming another to take such a false oath as con- stitutes perjmy. The punishment is the same as for perjiu-y. Barratry. Q. What is tlie nature of barratry Y A. The offence of frequotihj inciting and stirring up suits '248 CRIMINAL I..\^^■. and tiuaiTels between subjects, either at law or otherwise. The frequency is of the essence of the offence. A niisdemcanoui- : fine and imp. (Hanis, p. 98.) Champerty and Maintenance. Q. Define champerty and maintenance, and state tlie punish- ment. A. See the Modem Digest of the Final Examination, p. 286, for definitions. These offences are misdemeanours, pimishablc by fine and imp. Compounding Offences. Q. May a felony or misdemeanour be compounded ? A. Felonies may not be compounded, that is, a sum of money or reward may not be taken for forbearing to prosecute. To take such is a misdemeanour. Fine and imp. Such misdemeanours as more particularly affect individuals are sometimes allowed to be compouudoil; for nffer roiiviction the court, as it is said, allows the defendant to sjmtk icUh the prose- cutor before any judgment is pronounced, and if the prosecutor declares himself satisfied, the comi inflicts only a trivial punish- ment. But this is not allowed if the offence is one of a public natm-e. (Harris, p. 101.) Q. State some offences witli punishments arising out of the compounding of felonies. A. To corruptly take a reward for helping a person to pro- perty stolen or obtained b}' any felony or niisdenu\anoui', unless all due diligence to liring the offender to trial has been used, is felony : p. s. to seven yeai*s. (24 & 2-5 Yict. c. 90, s. 101.) An advertisement offering a reward for stolen property, using words pm-p(U'ting that no (pieslions will be asked or incpiiry made after a person producing the i)roiterty, renders the adver- tiser, printer and pubUsher liable to forfeit OU/. each. (24 Si 25 Vict. c. 96, s. 102.) 1 OFFENCKS OF A PUULK; NATURE. 249 Contempt of Court. Q. Give a definition of " contempt of coui-t." What are those courts denominated which have power to punish such con- temj^t, and what is the nature of the punishment they have to award ? Have police courts and courts of petty session such power, and, if so, why ? A. Contempt of court is a disobedience to the rules, orders, process, or dignity of a coui-t which has power to punish such offences. Courts of record only have power to punish for contempt of court, and they may award fine or imprisonment. (Harris, p. 96.) Police coiu-ts and courts of petty session are said to have no power to commit for contempt, thougli the point can hardly be considered settled. Misprision of Felony. Q. What is misprision of felony ? A. It is the concealment of some felony other than treason committed by another. It is knowledge without assent, but if a man assents, he is either princij)al or an accessory. Misde- meanour : fine and imp. Offences against the Public Peace, Q. Distinguish between an unlawful assembly, a riot, and a rout. A. (1) An unlawful assembly is any meeting of three or more persons under such circumstances of alarm, either from the large numbers, the mode, or time, of the assembly, as in the opinion of rational men is likely to endanger the peace, there being no aggressive act actually done. But a lawful assembly is not rendered unlawful by reason of the knowledge of those taking part in it that opposition will be raised to it, which opposition will in all probability give rise to a breach of the peace by those creating it. Thus, members of the Salvation 250 ( iiniiNAi, LAAv. Army are not liable for assembling, simply because they know that the Skeleton Army will attack tliem. {Bcnitif v. GillhankSy 1) Q. B. D. 308; lo Cox, 138.) (2) A rout is a distm-bance of the peace caused by those who, after assembling together to do a thing whicli, if executed, would amomit to a riot, proceed to execute that act, but do not actually execute it. It diifers from a riot in the circumstance that the enterprise is not actually executed. (•3) A riot is a tumultuous distiu'bance of tlie peace by tlu-eo or more persons assembling of tlieii' own authority, with intent mutually to assist one another against any who oppose them in the execution of some enterprise of a private natm-e, and after- wards actually executing the same in a violent and turbulent manner to the terror of the people, and this whether the act in- tended lie of itself lawful or unlawful. (Harris, p. 109.) Q. What is the natm'e of tlie ollences just indicated ? How are they punishable ? A. They are misdemeanom's : fine or imp., or both. Q. AVlien does a riot amount to a felony Y A. When twelve or more persons are unlawfully assembled to the distui'bance of the peace, and being required by a proclama- tion by a justice of the peace, sheriff, or mayor, to disperse, tliey still continue togetlier for an hour after ; felony : p. s. for life, or imprisonment not exceeding three years. Prosecutions mthin twelve months after tlic offence. (1 Geo. 1, st. 2, c. 5, ss. 1, 8.) Q. Define an affray. A. It is a fighting between two or more persons in some public place, to the teiTor of lier Majesty's subjects ; for ex- ample, a prize fight. If it takes ]>lace in ]irivate, it is an assault. It differs from a riot, as tliere must Ijo three persons to constitute the latter, and the affray need not be premeditated. Q. Is it an offence to send or deliver a diallenge ? if so, wliat, and liow punishable 't A. It is a misdemeanour, punishable by fine or imprisonment, or both, and it is not necessary that actual fighting should follow, (llan-is, p. 112.) OFFEMCES OF A TUHLIC NATURE. 251 Threatening Letters. Q. Give account of several offences consisting in sending threatening letters. A. (1) If any person, knowing tlie contents, sends or delivers a letter or writing threatening to biu-n or destroy any house or building, or agricultm^al produce in a building, or any ship, or to kill, maim, or wound any cattle, he is guilty of felony : p. s. to ten years. (24 & 25 Yict. c. 97, s. 50.) (2) The same consequences attach to sending letters threaten- ing to murder. (24 & 25 Vict. c. 100, s. 16.) Q. Give some account of offences arising from sending letters for purposes of extortion. A. (1) Sending or delivering a letter or writing demanding with menaces, and without reasonable cause, any money or pro- perty, is a felony : p. s. to life. If the tlireat is otherwise than by letter, it is a felony : p. s. to five years. (2) Sending a letter or writing containing, to the knowledge of the sender, threats to accuse any person of a crime punishable by law with death or penal servitude for not less than seven years, is a felony : p. s. to life. The punishment is the same if the threat is otherwise than by letter. (24 & 25 Yict. c. 96, ss. 46, 47.) Libel. Q. When may libel be prosecuted criminally ? A. It is not every libel which can be prosecuted criminally. It must be a gross libel, tending to create a breach of the peace. It is said that an indictment will lie for libel in all those cases in which an action would lie for a verbal slander without laying special damages. (Harris, p. 115.) Q. Is there any condition necessary to enable an indictment for libel to be brought against a proi^rietor, publisher, or editor of a newspaper, for a libel published therein ? A. The written fiat of the Director of Public Prosecutions in England, or the Attorney- General in Ireland, must be obtained. (44 & 45 Vict. c. 60, s. 4.) Such fiat, however, is not required ^•j2 criminal law. for a Crimiiial Information for a libel, (i?. v. Yafcs, 14 Q. B. D, 648 ; 15 Cox, 686.) Q. A person is sunuuoned before a magistrate for libel. Can tlie truth of the libel and the fact of its being for the public benefit be inquired into by the magistrate ? A. FoiTuerly it could not; but ])v 44 & 4-5 Vict. c. 60, s. 4, it may be, Q. What questions are for the jury in prosecutions for libel ? A. Formerly it was held that tlie jmy had only to decide as to the making and publishing of the libel and the meaning of any technical Avords therein, wliile the com't had to decide as to whether the "\mting was libellous in its nature. But since the 32 Geo. 3, c. 60, commonly called Fox's Libel Act, all these questions have been for the jury. Q. Is the truth of a libel a defence to a criminal or civil action ? A. It is a complete defence to a ci\il action. It is only a defence to a criminal prosecution if not only true, but also for the public benefit. (6 & 7 Yict. c. 96.) Q. What is the punishment for libel ? Wliat kind of a crime is it? A. It is a misdemeanour punishable, where it is knoAvn to be false, by imprisonment not exceeding two years and fine. But if it is not proved that the defendant knew it to be false, the punishment is fine or imprisonment not exceeding one year or both. (6 & 7 Vict. c. 86, ss. 4 & 5.) Q. Is there any special rule as to costs in prosecutions for Hbel? A, In the case of i»rivato prosecutions, if judgment is given for the defendant he is entitled to his costs from the prosecutor ; and if the defendant lias pleaded justification, and so has put the prosecutor to extra expense, and the defendant fails to establish his jilca, tlie prosecutor can recover from him the costs occasioncid by such plea. (6 & 7 Vict. c. 06, s. 4.) Q. AVHiat is the offence of publishing, or threatening to jtublish, a libel in order to extort money or other valuable thiuff? OFFENCES OF A PURLIC NATURE. 25o A. A misdemeanoiu" : imprisonment up to tliree years. (6 & 7 Vict. c. 96, s. 3.) Q. State the chief alterations relating to criminal prosecutions for lihel made by the Newspaper Libel Act, 1881 (44 & 45 Yict. c. 60). A. 1. The fiat of the public prosecutor must be obtained before a criminal prosecution can be commenced, but this does not apply to a criminal information. (Sect. 8.) 2. A court of summary jmisdietion may, on the prosecution for a libel in a newspaper, receive evidence as to the publication being for the public benefit, and as to the truth of the libel, and as to all other matters which might be given in evidence by way of defence ; and the court may dismiss the case if it is of opinion that the jmy would not convict. (Sect. 4.) '3. If the court of summary jmisdietion is of opinion that there has been a libel, but of a trivial character, it may, with the consent of the defendant, deal with the matter simimarily and fine the defendant a sum not exceeding 50/. (Sect. 5.) As to reports of public meetings, see Modern Digest, i^. 296. Torcible Entry. Q. Is a forcible entry, even upon one's own lands in the possession of a trespasser, legal ? A. No, it is a misdemeanour, punishable by fine and imp. (21 James 1, c. 15.) CHAPTER III. OFFENCES AGAINST PUBLIC TRADE, HEALTH, MORALS, AND GOOD ORDER. Smuggling. Q. Define smuggling. A. It is the importing or exporting either (a) goods without paying the legal duties thereon, or (b) prohibited goods. (HaiTis, p. 123.) 254 CRIMINAL LAW. Q. What are the penalties for smuggling ? A. The goods are forfeited and certain pecuniary penalties incurred, and imp, may be given for certain specified periods on summary con^iction before a justice. (Harris, p. 123.) Crimes under Debtors Act. Q. Mention ^-ix nii."^dt'Uieau(tui'.s by a bankrupt under the Debtors Act, 18Gi, 12 Cox, 237.) Q. Is the person who goes tlu^ough the form of marriage with a bigamist guilty of any offence ? A. Yes ; such person is either a principal in the second degre© or an accessory before the fact. (Harris, p. 141.) Q. What is the offence of bigamy and its punishment ? A. It is a felony : p. s. to seven years. N. 258 miMIXAT. I.AAV. Betting in Public, &c. Q. "Wliat is the pmii.sliinent for playing or betting by way of wager or gaming, in any street, road, highway, or other pubhc place, at or with any table or instrument of gaming, card, &c. ? A. It subjects the player to punishment as a rogue and vagabond under a statute of Geo. IV., or, at the discretion of the magistrate, to a penalty not exceeding 40s. for the first offence, and 5/. for any subsequent offence. (36 & 37 Vict. c. 38, s. 3.) A railway can'iage i)i transit where gaming is carried on is a pubhc place, or an open place to which the pubKc are pennitted to have access Tsithin the above statutes. {Lang risk v. Arthur, lOQ. B. D. 44; 31 W. R. 183.) Q. What is the offence of opening, keeping, or using a house, room, or place for the purpose of unla"s\'ful gaming, or managing the same, or lending money for the purpose of gaming with persons frequenting such place ? A. On summary con^'iction before two justices or a magis- trate, such person is hable to pay a penalty not exceeding 500/., or may be committed to prison, with or without hard labour, for any time not exceeding twelve months. (17 c^ 18 Vict. c. 38, s. 4.) Common Nuisance. Q. What is a public or common nuisance ? Give examples. A. It is such an unlaTV'fid nuisance as is liable to affect all persons who come within the range of its operation. It is indictable as a misdemeanour. Examples are : nuisances to high- ways, as by obstruction or want of reparation ; can*ying on offensive or dangerous trades ; disorderly inns or alehouses, gaming and betting houses, &e. (Ilanis, jip. 14G — 150.) Adulterating Food. Q. What is the offence of mixing or ordering others to mix, colour, &c., any article of food intended for sale, with any material injurious to health ? A. Tlio first offence is ])unishablo by a penalty not exceeding 60/., the second is a misdemeanour : imp. not exceeding six months. Knowledge of the adulteration is necessary to render the defendant liable. (38 &. 39 Vict. c. 03, s. 4.) OFFENCES AGAINST PUBLIC TRADE, HEALTH, ETC. 259 Furious Driving. Q. Wliat is tlie offence of wanton and furious driving, and the iiunislinieut ? A. If bodily harm is caused to another, the defendant is guilty of a misdemeanour: imp. to two years or fine, or both. (24 & 25 Viet. c. 100, s. 35.) Sending unseaworthy Ship to Sea. Q. What offence is incurred, and by whom, for sending an unseaworthy ship to sea, in such a state as to endanger the life of any person ? A. The person sending it, the managing owner, a person attempting to send it, the master of a British ship knowingly taking it, are all guilty of misdemeanour unless they can prove as to the first three people, that they have used all reasonable means to ensure the seaworthiness, or that sending her to sea was under the circumstances justifiable ; as to the master, he need only prove the latter of these points. The accused may give evidence. (38 & 39 Vict. c. 88.) Offences in relation to Game. Q. State some offences against the game laws. A. (1) Unlawfully taking or destroying game by night. (2) Entering or being by night, whether in enclosed or unen- closed land, with any gun, net, or engine, &c., for the pui'pose of taking game. Punishments for above offences : first convic- tion, imp. not exceeding three months, and to be bound over to good behaviour for a year, or in default further imp. not exceed- ing six months. For a second offence, each of the above periods is doubled. A third offence is a misdemeanour : p. s. to seven years. (3) Three or more persons by night unlawfully entering or being in any land or road, &c. for the purpose of taking game or rabbits, any of the party being armed with firearms, or other offensive weapons, is a misdemeanour : p. s. to fourteen years. (9 Geo. 4, c. 69, s. 9.) 82 2G0 CRIMINAL LAW. CHAPTER IV. OFFENCES AGAINST THE PERSON. Homicide. Q. Classify the different kinds of homicide. A. Homicide is said to bo of three kinds: justifiable, excuse- able, and felonious. Q. Explain and illustrate justifiable homicide. A. Tliis arises where there is no fault in the killer, as — (1) where the proper officer executes a criminal in strict con- fonnity with a legal sentence ; (2) where an officer of justice, or other person acting in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it ; as where a constable kills a person who is resistuig his arrest, or where prisoners assault the officer, and he to prevent an escape kills any of them. It must, however, be sho%\^i tliat the killing was apparently a necessity ; (3) when the kilUng is to prevent a forcible and atrocious crime as an attemi)t to rob or murder, or to commit burglary. (Han-is, 163 — 105.) Q. Explain excusable homicide. A. This is said to arise in two cases— (1) sc dpfeudendo upon sudden fifl'r<(i/, where a man is suddenly attacked and cannot escape witli liis life except hy killing the otlier ; (2) j^cr infortu- nium, where when doing a lawful act a person quite accident- ally kills another. But if tlie act is illegal, it is manslaughter, and if it amounts to a felony it is nnu'der. And tlie act nuist l)o done with due caution ; thus, a person may be guilty of mm-der or manslaughter, if he tlirows stones from a house knowing that people are likely to be passing. (Harris, 108 — 170.) Q. What was the former penalty for suicide ? A. It was burial in the liighway without christian rites witli a stake driven tlirough the body, and the forfeiture of all goods and chattels to the Crown. There is now no forfeiture, anrincipal offence is a felony, llic receiving is punishment \\it]i \k s. for fourteen years. But receiving a post- I OFFENCES AGAINST THE PROPEHTY OF INDIVIDUALS. 277 letter, or any chattel, money, &c., whicli, under the Post Office Act, amounts to a felony, is i^unishable v/ith p. s. to life, or imp. not exceeding fom^ years. (7 Will. 4: & 1 Vict. e. 36, ss. 40, 41.) Q. What is the punishment for receiving- stolen goods where the principal offence is a misdemeanour, or is punishable on smnmary conviction ? A. The receiver is also guilty of a misdemeanour: p. s. to seven years. If the principal offence is punisliable on sum- mary conviction, the receiver is liable, on summary conviction, to the same punishment to which the principal is liable. (2 4 & 25 Vict. c. 96, ss. 95, 97.) Q. May any other offence be charged together with receiving stolen goods in the same indictment ? A. Contrary to the general rule, in an indictment for stealing a count or counts may be added for feloniously receiving the same. And conversely, in an indictment for receiving, a count may be added for feloniously stealing. {Ibid., sect. 92.) Q. What penalty may be imposed upon persons keeping houses, public or otherwise, in which thieves are harbom-ed, or the deposit of stolen goods allowed ? A. The keeper of such house is liable to a penalty not exceeding 10/., or, in default of payment, imp. not exceeding four months ; or instead, or in addition to such punishment, the court may require him to enter into recognizances to keep the peace or be of good behaviour. Licences may also be forfeited for such conduct. (34 & 35 Vict. c. 112, ss. 10, 11.) Embezzlement, &c. Q. Define embezzlement and distinguish between larceny and embezzlement. A. Embezzlement occm^s where a clerk or servant, or person employed in the capacity of a clerk or servant, appropriates to his own use money or chattels received by him for and on account, or in the name of his master or employer. (Harris, p. 251 ; Stephen's Digest, p. 220.) Embezzlement can only be committed by a clerk or servant, 278 (KIMINAL LAW. or person iu that capacity, while larceny can be committed by anyone. In embezzlement the property is not at the time in the actual or legal possession of the oA\nicr, whilst in larceny it is. Thus, if a clerk receives 20/. from a person in payment for goods sold by his master and approi)riates it, he is guilty of embezzlement ; but if he takes 20/. fi'om the till he is guilty of larceny. Q. State some points which have been decided on the question as to ■whether a person is a servant or clerk. A. lie must either be bound by an express contract of ser^•ice, or by conduct implying such a contract, to obey the orders and submit to the control of his master. But ho may be a clerk or servant altliough ho is paid for liis services by a commission or share in the profits, and although he is one of two or more bene- ficial owners of the property embezzled, or although he acts as clerk or servant only occasionally, or even has so acted only on the particidar occasion on which his offence is committed. But he is not necessarily a clerk or servant because he receives a salary, or because he has undertaken not to accept employment of a similar kind from anyone else, or because he is under a duty, statutory or otherwise, to account for money or other property received hy liini. (Stephen's Digest, pp. 220, 221 ; Hanis, p. 252.) Q. State some points wliidi have arisen on the question as to whether property has been embezzled or not. A. Some specific sum must be proved to have been embezzled ; a general deficiency in the accounts is not sufficient. Mere non- l^a^Tnent of money which the prisoner has charged himself in his books with receiving is not embezzlement ; but, on the otlier hand, it is no defence merely to show that lie entered the receipt cor- rectly in liis books. If the prisoner admits the appropriation, but alleges a right in himself, no matter how fri^•olous if a bond fide claim, liis offence is not embezzlement. Wliere it is the prisoner's duty at stated times to account and pay over to his employer tlic money received dm'ing those intervals, it is embezzlement if he wilfully omits to do so. (Harris, p. 254.) Q. A clerk is entnisted by a debtor of his master with a cheque for his master. He takes such cheque and gets a friend OFFENCES AGAINST THE PROPERTY OF INDIVIDUALS. 279 to cash it, and appropriates the proceeds. Of what offence is he guilty ? A. Of embezzlement. {E. v. Gale, 4G L. J. M. 0. 134.) Q. A., a servant of B., receives from C, a fellow servant, in the course of his duty 3/. of B.'s money. A. appropriates 10s. to his own use. Is he guilty of any offence ? A. He is guilty of theft hut not of embezzlement. {R. v. Mtirrai/, 5 0. & P. 145 ; 1 Moody, 276.) Q. What is the punishment for embezzlement ? A. It is a felony, punishable with p. s. to the extent of four- teen years. (24 & 25 Vict. c. 96, s. 68.) Q. May more than one charge of embezzlement be made in the same indictment ? A. The defendant may be tried at the same time for any number of distinct acts of embezzlement, not exceeding three, committed against the same master or employer within six months from the first to the last of such acts. {Ibid.) Q. What is the offence of falsification of accounts ? A. For a clerk, servant, or other employe, with intent to defraud, wilfully to destroy, alter, or falsify any of his employer's books, papers, accounts, &c., or make false entries therein, is a misdemeanour : punishable with p. s. to seven years. (38 & 39 Vict. e. 24.) Q. Give an account of some offences committed by persons entrusted with property for a special purpose. A. If any banker, merchant, broker, agent, or factor is en- trusted with any money or security, with a du-ection in writing to apply the same in any specified manner, and he converts the same to his own use or to the use of some third person, he is guilty of a misdemeanour : p. s. to seven years. So, if such a person so entrusted with any chattel or valuable security, or power of attorney for the sale or transfer of any share or interest in any stock or fund, for safe custody, or for any special pm'pose, improperly sells, negotiates, pledges, or converts to his own use or that of a third party such chattel, he is guilty of the same offence, punishable in the same way. But bankers having a lien on securities, mortgagees and trustees, &c., are exempted from these provisions ; and a solicitor entrusted with. 280 CRIMINAI. I.A-VV. moneys for investment does not come within tlie section. (24 & 25 Vict. c. 90, s. 7.J ; 7?. v. Xcirmaii, 8 Q. B. D. TOG ; 40 L. T. N. S. 394.) Q. ^Vllat is the offence, and the imnishment, of a factor or agent who embezzles the property of his principal ? A. Such persons, being entrusted for sale with goods, or docu- ments of title to goods, and who without authority improperly make any assignment, deposit, transfer, or delivery of such goods or documents by way of pledge, or, without authority, accept any advance of money or valuable secm-ity on the faith of such documents, and clerks or others knowingly assisting them, are punishable as in tlie last answer mentioned. (24 & 25 Vict, c. 90, s. 78.) Q. What is the offence, and the punishment, where a trustee embezzles property ? A. Wliere he fraudidently appropriates the same to his ovni use, or to an improper pui-pose, or otherwise disposes of or destroys the property, he is guilty of a misdemeanom- : p. s. to seven years. The sanction of the Attorney- General must be obtained for the criminal proceedings, and if ci^'il proceedings have been taken, the person taking them may not prosecute without the sanction of the civil court. (24 & 25 Vict. c. 90, s. 80.) Q. Give an account of some offences which may be committed by officers of companies, and theu' punishments. A. For a dhector, member, or public ofheer of a company or body corporate — (1) to appropriate to his own use, or that of a tliird party, any property of the company, &c. ; or (2) to receive or possess himself of any of the projierty of the company, and, with intent to defraud, to omit to iiiak.' a full entry tliereof in the books of tlie company ; or (3) for such person, with intent to defraud, to destroy, mutilate, or falsify any of the books, papers, &c. of the company ; or (4) to make any false entry, or omit any material particular which ought to be entered ; or (5) to cir- culate or publish any written statement false in a material par- ticular, with intent to deceive any member or creditor of the company, or to induce any person to become a shareholder or partner tlicr<-in, or to entrust any property to the company, is a OFFENCES AGAINST THE PROPERTY OF INDIVIDUALS, 281 misdemeanour : p. s. to seven years. (24 & 26 Vict. c. 96, ss. 81—83.) False Pretences, &c. Q. Distinguish false pretences from larceny. A. In larceny, tlie owner of the thing stolen does not intend to part with his property to the person taking it, although he may intend to part with the possession ; in false pretences, the owner does intend to part with his property, but it is obtained from him by fraud. (Harris, p. 261.) Q. What is meant by such a false pretence as will render a person guilty of the offence of obtaining goods, &c., by false pretences ? A. The phrase "false pretence" means a false representation, made either by words, by writing, or by conduct, that some facts exist or existed ; and such a representation may amount to a false pretence, although a person of common jirudence might easily have detected its falsehood by inquiry, and although the existence of the alleged fact was of itself impossible. (Stephen's Digest, p. 247.) Q. May a person be found guilty of false jiretences who makes an assertion that he will in the future do such and such a thing ? ^, As a rule, the false pretence must be of an existing fact, and not as to future conduct. Neither will general puffing amount to a false pretence. (Harris, p. 262.) Q. A. buys goods at a shop, promising to pay for them at once, and gives a cheque drawn upon a banker's at which he has no account, and never had one, and which is conse- quently dishouom^ed. Is A. guilty of any offence ? A. A. is guilty of obtaining goods by false pretences. Q. A person, having given a bill of sale over the whole of his fm-niture, sells it without saying anything as to the ownership of it, or as to the existence of the bill of sale. Is he guilty of any offence ? A. He is guilty of false pretences ; for by selling the furni- ture he impliedly represents that he is owner of it. [M. v. Scwumn, 52 L. T. N. S. 772.) 282 CRIMINAL LAW. Q. What is the offence of false pretences, and how punishable ? A. It is a misdemeanoiu' : p. s. to five years. (24 & 25 Vict. c. 96, s. 88.) Q. If a person is indicted for false pretences, but the facts as proved show that a larceny has been committed, A^■ill the piisoner be acquitted ? A. He is not entitled to be acquitted, but Avill be found guilty of false pretences (not of larceny). But if he is indicted for larcen}^ and the facts proved amoTint to false ])retences, lie cannot be convicted of the latter, and must be acquitted. (24 & 25 Yict. e. 96, s. 88.) Q. What is the offence of inducing persons by fraud to execute valuable secmities, and how punishable ? A. If a person, with intent to defraud, by false pretences induces another (1) to execute, accept, or indorse, &c., a valu- able secui'ity, or (2) to write or impress his name, or the name of any other person, or of any company, firm, &c., upon any paper or parchment, in order that the same may be afterwards converted into, used, or dealt with as a valuable secmity, he is guilty of a misdemeanom-, punishable as false pretences. (24 & 25 Yict. c. 96, s. 90.) Q. What is the punishment attached to falsely personating the owner of any share or interest in any stock or public funds transferable at the Bank of England, or the owner of any share or interest in the stock of any other company, or the OAMier of any di\idend or money payable in respect of any such share or interest, and tliereby to transfer such share or receive such money as if the offender were tlie o-ssiier ? A. This is a felony: p. s. to life. (24 & 25 Vict. c. 98, s. 3.) Q. If a person shall offer liimsflf as a servant, asserting or pretentling that he has served in any service in whicli lie sliall not have actually served, is ho guilty of an offence? and, if so, give the authorit}', jimsdiction, and punishment. A. He is guilty of an offence against public convenience, and may be sunmiarily convicted before two justices and fined 20/., or in default bo imprisoned with hard labour for any period not exceeding thi'ce months nor less than one month. (-32 Geo. 3, c. 56.) 1 OFFENCES A(;AINST THH PROPERTY OF INDIVIDUALS. 283 Burglary and Housebreaking. Q. Define bui'glaiy. A. The breaking and entering of a dwelling-house or mansion- house of another in the night time with intent to commit a felony. (Harris, -p. 271.) Q. What are the chief points to note about the crime of burglary ? A. The time : night, which is deemed to commence at 9 in the evening, and to conclude at 6 in the morning ; and both breaking and entering must be committed between these hours. Pkce : a clwelliug-house, that is, a place where somebody sleeps, or some building between which and the dwelling-house there is covered communication. It must be a permanent building, and the residence there must be permanent and general. Manner: breaking and entering, actual breaking does not need description. It is not bm^glary to go through an open window or door or through an apertui'e other than the chimney, provided the thief does not break any inner door ; nor to raise a partly open window ; but to lift the latch of a door, or unloose the hasp of a window, is burglary. (Harris, p. 274.) Constructive breaking, is where a robber conspires with servants who let him into the house ; or where a servant who has committed a felony in the house breaks out. Intent ; to commit a felony. If there is no felonious in- tent, the breaking and entry will only be a trespass. (Harris, pp. 271—275.) Q. "What is the offence of bm^glary and how punishable ? A. A felony : p. s. to life. If there is a breaking without proof of entry, the prisoner may be convicted of an attempt to commit burglary. Entering a dwelling-house in the night without breaking is a felony : p. s. to seven years. (24 & 25 Yict. c. 96, ss. 52 and 54.) Q. Distinguish between house-breaking and bm-glary. A. The former may be committed by day; the latter by night only. House-breaking extends to school-houses, shops, warehouses, &c., while burglary only to a dwelling-house. 284 CllIMlNAL LAAV. There must be breaking and entering in house-breaking as in burghary. (Harris, pp. 271 — '277.) Q. Wliat is the punishment for liouse-breaking ? A. If the intended feh)ny is actually committed, it is p. s. to fourteen years ; if it is not conmiitted, but only projected, p. s. to seven years. If the breaking and entering are not proved, the prisoner may be con^•icted of larceny in a dwelling-house, or of simple larceny. (24 & 25 Vict. c. 96, ss. 5G, 57.) Q. What is tlie offence of sacrilege ? A. Breaking and entering a church, chapel, or meeting house, or other place of divine worship, and committing a felony therein : p. s. to life. If the felony is not actually committed, but the intent is proved, p. s. to seven years. (24 & 25 Vict, c. 96, ss. 50, 57.) Q. Wliat is larceny in a dwelling-house ? A. There need be no breaking or entry, but, as in burglary, . the building must be a dwelling-house or some building con- necting therewith. Stealing in such dwflling-house any chattel, money, &c., value 5/. or more, is a felony : p. s. to fom-teen years. (24 & 25 Vict. c. 96, ss. GO and 61.) Forgery. Q. Define forgery, A. The false making or alteration of an instrument or part thereof, which pm-ports to be good and valid for the pm-poses for which it was created, with a design to defraud. (Harris, p. 282.) Q. May forgery be committed by wiiting a fictitious name ? A. It may be; and a man may be guilty of forgery by making a false deed in his own name. (Harris, p. 287.) Q. AVliat is the intent to defraud which must exist in the ease of forgery ? A. The intent is presumed to exist if at iW lime avIicu the false document was made tliore was in existence a specific person, ascertained or unascertained, capable of being defrauded thereby; and this presumption is not rebutted by proof that the offender took, or intended to take, measures to prevent such person from OFFENCES AGAINST THE PKOPERTY OF INDIVIDUAI.S. 285 being defrauded in fact, nor by the fact that lie had, or thought he had, a right to the thing to be obtained by the false docu- ment. (Stephen's Digest, p. 267.) But it is not necessary to prove an intent to defraud any pai-ticular person; it is enough to prove an intent to defraud generally. (Harris, p. 289.) Q. A. being directed by his master to j&ll up a blank cheque with an amount to be ascertained, and to take up a bill with the proceeds, fills it up for a larger amount and keeps the difference, on a claim that it was due to him for salary ; does A.'s offence amount to forgery ? A. There being an intent to defraud it does. {E. v. Wilson, 1 Den. 284.) Q. Why, in an indictment for forgery, is it usual to add a second count charging the prisoner with knowingly uttering a forged instrument ? A. So that if the prosecution fail to prove that the prisoner himself committed the forgery, they may convict the prisoner of the uttering. (Harris, p. 289.) Q. Under the Forgery Consolidation Act what amounts to a felonious uttering of an instrument feloniously forged ? A. It is sufficient if there is a tender or attempt to pass off the instrument ; there need not be an acceptance by the other. The words of the Consolidation Act (24 & 25 Yict. c. 98) are " offer, utter, dispose and put off." Q. What must be proved on an indictment for forgery ? A. (1) The forged character of the instrument. (2) The intent to defraud. (3) That the defendant knew the instrument to be forged, which will be presumed from the facts of the case ; and evidence may be given that the defendant has jiassed other forged notes, and even evidence of a subsequent uttering, the subject of a distinct indictment. {R. v. Aston, 2 Euss. 732.) Q. State some offences, with their punishments, connected with the forging of bank notes, A. (1) Purchasing, receiving, or having in possession forged bank notes or bank bills knowing the same to be forged; (2) making, or having moulds for making, paper with the words "Bank of England" or "Bank of Ireland" visible on the 286 CUIMINAT. LAW. sui'face, or making, selling:, «.*tc. sucli paper, or engraving on a plate, Sic, of any bank note, or using or having in possession any suili i)lato. The above are felonies : p. s. to fom-teen yeai-s. (24 & 20 Xivt. c. 08, ss. i;3, 14 and 16.) Q. What is the punishment for forgery ? A. It is usually p. s, to life or for any term not less than tlu-ee years, or imp. ^yith. or -snthout hard labour for any term not exceeding two years. (24 & 25 Yiet. c. 98.) Q. A man obtains money and goods on tlu-ee separate occa- sions from thi-ee separate shops, all within six mouths, by means of tlu-ee separate cheques, for tlu-ee different amounts, dra-vMi and signed b}' him in the name of another person on three different bankers, at neither of which has he any account ; what offence or offences does he commit, and what indictments can be pref en-ed against him ? A. He has three times committed (1) forgery, and (2) the , offence of obtaining goods on false pretences. He can be in- dicted for all six offences. Arson. Q. Define arson. A. It is the mlful and malicious setting fire to any building. By analogy, the term is extended to setting fii-e to other things, such as corn, ships, &c. It is a felony, punishable as hereinafter mentioned. Q. State some of the various punishments for the malicious setting fire to various buildings. A. (a) Clnu-ches, chapels, &e. ; (b) dwelling-houses, outhouses, Avari'hous(\';, ships, mills, farm-buildings, with intent to injure or di'frauil; (<•) dwelling-house, any persou being therein ; (d) sta- tion, warehouse, &c. ; (e) public buildings, as described in the act : p. s. to extent of life. Any other building : p. s. to fourteen years. (24 & 25 Vict. c. 97, s. 6.) Q. 8tate some other offences of the nature of arson. A. Setting fire to any crop of hay, grass, corn, &c., or any wood, copse, gorse, heath, &c. ; felony : p. s. to fourteen years. {Ihid., s. 16.) OFFENCES AGAINST THE PROPERTY OF INDIVIDUALS. 287 Stacks of corn, g-rain, or of furze, gorse, lieatli, &c. ; felony : p. s. to life. Setting fire to nny mine ; felony : p. s. to life. An overt attempt to do the same ; felony : p. s. to fom-teen years. Setting fire to, casting away, or anywise destroying a ship or vessel ; felony : p. s. to life. An attempt by any overt act to do so ; felony : p. s. to fourteen years. {Ibid., ss. 16, 17, 26, 27 and 42.) Q. What must he proved in the ease of arson ? A. (1) The malicious act, i.e. intention to commit a felony, though not necessarily of the kind which is committed ; so that mere negligence Avill not he enough ; (2) there must be an intent to iujm-e or defraud. (Harris, pp. 298, 299.) Malicious Injuries to Property. Q. State some offences connected with malicious injmy to property. A. 1. To destroy or damage a dwelling-house by an explosion, whereby the life of some person is endangered ; felony : p. s. to life. (24 & 25 Vict. c. 97, s. 9.) 2. To place or throw gunpowder in, into, under, against, or near any building with intent to destroy the same, or any machinery or goods, is a felony : p. s. to fourteen years. {Ibid., s. 10.) 3. Unlawfully and maliciously causing any explosion likely to endanger life, or cause serious injmy to property : felony, p. s. to life ; or imp. for a term not exceeding two years. (46 & 47 Yict. c. 3, s. 2.) 4. Eiotously and with force to demolish buildings, machinery, mines, bridges, &c. ; felony : p. s. to life. (24 & 25 Yict. c. 97, s. 10.) 5. For a tenant holding a dwelling-house or other building dm-ing or after the termination of any tenancy, to demolish it, or to sever any fixtm'e, is a misdemeanour : p. s. ; fine or imp., or both. {Ibid., s. 13.) Q. State what offences arise out of malicious injury to the following: — 1 manufactures or machinery ; 2 mines; 3 vessels. A. 1. To break, destroy, or damage certain goods, such as silk, woollen, linen, &o. in process of manufactm^e, or the machinery employed therein, or by force to enter any place to 288 CRIMINAI, LAW. commit such offence; felouy: p. s. to life. In the case of machines used in agricultural operations, or in any other manu- facture ; felony: p. s. to seven years. 2. To cause water to he conyeyed into a mine -ss-ith intent to destroy or damage the mine ; felony : p. s. to seven years. 3. Vessels — to thro\v in, against or near a ship or vessel, any gunpowder or other explo- sive substance, with intent to destroy it or its contents, is a felony : p. s. to fourteen years. (24 & 25 Vict. c. 97, ss. 14, 15, 28 and 45.) Q. What is the offence of killing, maiming, or wounding— 1. Any cattle ; 2. Any dog, beast, buxl, &c., not being cattle, but being either the subject of larceny at common law, or ordinarily kept in a state of confinement, or for any domestic purpose Y A. 1. This is a felony : p. s. to foiu'tcen years. {Ihid., s. 40.) 2. Punishable on summary conviction. First offence, imp. not exceeding six months, or penalty not exceeding 20/. above the .injmy. Second offence, imp. not exceeding twelve months. {Ibid., s. 41.) Q. How is the offence of cruelly beating, illtreating, over- di-iving, poisoning, or torturing, any animal punishable ? A. On summary con^-iction, by a penalty not exceeding 5/. (17 & 18 Vict. c. 60, s. 3 ; 12 & 13 Vict. c. 92, s. 2.) Q. State the punishment for malieioiLs injiu-y to trees, slu-ubs, &c., growing in parks, pleasure grounds, gardens, or in any ground adjoining, or belonging to, any dwelling-house. A. If the amount of tlie injury done exceeds the sum of 1/., or if the tree is growing elsewliero tlie amount exceeds 5/., it is a felony : p. s. to five years. If the injury amounts to the value of Is., at least, wherever tlie tree, &c. may be growing, the offence is punisliable on summary con\iction by imp. not exceeding tliree months, or fine not exceeding 5/. above the amount of the injury. Second offence, imp. not exceeding twelve months. Third offence, mis- demeanour, imp. not exceeding two years. (24 & 25 Vict. c. 97, ss. 20—22.) Q. Is it necessary to prove actual malice against the owner of the jn-operty in the case of malicious injury ? A. It is not necessary, nor is it necessary to prove an intent PROCEDURE IN CRIMINAE. CASES. 2^9 to injui-e or defraud any particular person ; proof of a general intent to injure or defraud is sufficient. (24 & 25 Yict. c. 97, ss. 58, 60.) CHAPTER VI. PROCEDURE IN CRIMINAL CASES. Security, &c. Q. "What kinds of security may be demanded, and how is such security given ? A. Secmity is of two kinds — (1) for keeping the peace ; (2) for good behavioui'. The defendant enters into a recognizance or bond, with or without secm'ities, to the Crown. If it is to keej) the peace the bond is conditioned to be void if he keep the peace either gene- rally or particularly with regard to the person who seeks security. If it be for good behavioui', then the condition is that he behave himself well for the time therein limited, i.e., for one or more years, or life. If he breaks the condition the recognizance is forfeited, or, as it is said, estreated, and the party and his sureties become the Crown's debtors for the sums in which they are bound. (Harris, pp. 310, 311.) Q. By whom may these securities be demanded ? A. By any justice of the peace, by the judges of the Queen's Bench Division, the coroner, the sheriff, &c. They may demand the secui'ity, either at their own discretion, or at the request of a subject upon his showing due cause. Q. How is the secm-ity obtained ? A. The person requiring it goes either before a justice or before the sessions and demands it. If the person against whom it is demanded is not there, a warrant may be issued by the magistrate or the sessions to bring him before them. If he refuses to come he may be put into prison without any fuiiher warrant ; and if he comes he must offer securit}', or else he may N. U 290 (UIMINAI. LAW. be committed to prison for u tenn uot exceeding twelve months. (16 cV: 17 Yict. e. 30, s. 3 ; Harris, 312.) Q. F( ir what may security be demanded ? A. (1) For the peace from persons who make an affray or commit conduct likely to tend to a breach of the peace. Also it may be demanded by a person when anotlicr has threatened to kill him, his wife, or child, or do liim otlicr corporal injiirv, or bm'n his house, &c. In this case the apiilicant must swear to his fear, and show gi'ound for it, and tliat he is not acting out of malice. (Han-is, p. 313.) ('2) For good behaviour. This includes keeping the peace and something more, and all those persons who are not of good fame may be so bound, as rioters, baiTators, cheats, vagabonds, &c. (Harris, pp. 313, 314.) Q. Under what ciixainistances have magistrates and justices of the peace power to adjudge a person to enter into a recog- nizance and find sm'eties to keep the peace and to be of good behaviom' ? A. Where persons make an affra}- in his presence, or tlireaten to beat or kill one another ; or rpiarrel violently, &.c. ; also common barrators, &c. ; also on demand of a private person ("swearing the peace" against another), when he fears bodily injury fi'om another, or that he will bmni his house, i^c. But there must have been a tlu'eat to do so, though that threat need not be expressed in words. If the applicant swears that he is in fear of death or bodily harm, and shows that there is ground for ]iis fear, tlie magistrate is bound to grant tlie security. (Harris, 313.) Q. What are the provisions of the Criminal Consolidation Acts, LS61, in relation to secm'ity for keeitiug the peace and being of good Ix-haviour Y '' A. (1) A court of suuimar}' jm'isdiction may order an offender, on tlie completion ol' lils imprisonment, or if tlie punishment is a line, at once to enter int(j a recogTiizauee to keep the peace or for ! good bchaviom' ; or, instead of awarding any punishment, the i court may order the defendant to enter into such recognizance. (2) On con\'iction of an indictable misdemeanour punislial)le J, under one of the Criminal Consolidation Acts, 18G1, the court ij PROCEDURE IN CRIMINAL CASES. 291 may, in addition to or in lieu of any punishment authorized in the act, fine the offender and require him to enter into his recognizances and to find sureties, both or either, for keeping the peace and being of good behaviour. (3) And in case of any felony punishable under one of those acts, the com-t may require tlie offender to enter into his own recognizances, and to find sm-eties, both or either, for keeping the peace, in addition to any punishment authorized by the act. But no person is to be imprisoned for not finding sureties for any period exceeding one year. (24 & 25 Vict. c. W, s. 117; c. 97, s. 73; c. 98, s. 51 ; c. 99, s. 38; c. 101, s. 71.) Q. What special provisions are there as to the holders of licences under the Penal Servitude Acts ? A. If on their being brought before a com-t of summary jurisdiction it appears that they are getting their living by dishonest means, their licences are forfeited. They are required to notify their residence to the joolice within forty-eight hours of their arrival in any place. (34 & 35 Yict. c. 112, ss. 3, 5.) Jurisdiction of Courts. Q. What is the criminal jmisdiction of the House of Lords ? A. It may be exercised in two ways : either (1) by impeach- ment, or (2) by indictment. Q. CHve a brief sketch of the jurisdiction of the House of Lords in cases of impeachment. A. The House of Commons are the prosecutors, and the Lords are the judges. The charge is formulated in what are called articles of impeachment. A peer may be impeached for any crime ; a commoner at any rate for a misdemeanour, and perhaps for any crime. (Harris, p. 318.) Q. Give a brief account of the jmisdiction of the House of Lords in proceedings by Avay of indictment. A. Peers and peeresses are tried before the House of Peers against whom an indictment for treason or felony, or misprision of either, is found during a session of parliament. A true bill is u2 •jy2 CHIMIN \1. LAW. found in the ordinary way by a o^rand jury in the Queen's Benrli Division or at the assizes, and the indictment is removed to the House of Peers by writ of ccrliorari. (Harris, p. 320.) Q. "Wliat is the criminal jurisdiction of the Queen's Bench Division 'f A. On tlie Crown side, the (iueen's Bencli Division takes cognizance of all criminal cases, from high treason down to the most trivial misdemeanoiu'S. Its jurisdiction is of two kinds : (1) oriyinnl as to all offences committed in Middlesex which may be prosecuted in this coiu't by indictment ; and misde- meanours committed in any county of England which may be jirosecuted in this court on information filed by the Attorney- General ex officio, or at the instance of a private inilividiial prosecuting in the Crown Office by leave of the court. (2) Tramf erred — to it indictments from all infu-ior courts may be removed by writ of certiorari. (Harris, p. 322.) Q. What must be shown in order that an indictment may be removed by certiorari into the Queen's Bench Division ? ui. Unless it be an indictment against a body corporate, not authorized to appear by attorney, or unless it be at the instance of the Attorney-General, acting on belialf of the Crown, one of the following circumstajK-'es must occiu' : — The court must bo satisfied (a) that an impartial trial cannot be had in the court below ; or (b) that some (piestion of law of more than usual difliculty and importance is likel v to arise ; or (c) that a view of the premises or a special jury maybe necessary'. And tlie party applying for the certiorari is to enter into recognizances for the payment of costs in the case of failure. (10 v!c 17 Yict. c. 30, ss. 4, 5.) Q. Wliat are the assizes? -i. Tins is the j)()pular name for couiis lield by virtue of special commissions issued by the CroA\ u. 'J'ho courts themselves are called "oyer and terminer" and "general gaol delivery." The commissions are — (1) of oyer and tenniner, whicli is a commission to try crimes ; (2) of general gaol delivery, direct- ing the trial of every ]trisoner in tlie gaol, so that the gaols may be cleared of those waiting for trial : (."3) of Nisi Brius for the trial of ci\il causes ; (4) of the peace, by which all justices are IMIOCEDURE IX CRIMINAL CASES. 29-i bound, uiulor a penalty of a fine, to attend the judges. (Hai-ris, p. 320.) Q. What Avas the former criminal jurisdiction of the Com-t of the Lord High Admiral, and in whom is such jurisdiction now vested ? A. This court had jurisdiction for the trial of criminal offences committed at sea, or on board ships lying in the rivers below Ijridge. The jurisdiction is now exercised by the Central Criminal Court, and at the assizes. (Harris, p. 327.) Q. How far did the jurisdiction of the Admiralty over British ships extend ? A. It extended over all British ships and persons on board them on the high seas and also on foreign rivers, although there might be concurrent jmisdiction in the Courts of the foreign country, at all events over our merchant ships. This is the present jm^isdiction of the Central Criminal Court and the assizes. These courts, fm-ther, have jm'isdiction over foreign ships and foreigners on board when such ships are within English territorial waters, which include the high seas to the distance of a inarine league from low-water mark. (41 & 42 Yict. c. 73.) Q. Where may indictable offences committed within what would have been formerly the Admiralty jm'isdiction be tried? A. All indictable offences mentioned in the Criminal Law Consolidation Acts, 1861, which include the greater portion of indictable offences, and consequently those within the former Admiralty jurisdiction, are subject to the same punishments, and may be tried in any county or place in England or Ireland in which the offender shall be apprehended or in custody, in the same manner as if the offence had been committed in that county or place. (Harris, pp. 328, 329.) Q. What is the jmisdiction of the Central Criminal Coui't ? A. It has jurisdiction for the trial of all treasons, felonies and misdemeanours committed within the city of London and county of Middlesex, and in certain specified parts of the counties of Essex and Kent. The judges sit under the ordinary Assize Commissions. The sittings of the Court are held twelve times 294 ( Kl.MlNAI. LAW. a year, ami ofteiier if need be. The judges are the Lord Mayor, the Lord Chancellor, the judges of the High Court, the Re- corder, tlie Common Serjeant and the AWormen of the City of London. (Hams, p. .'i21>.) Q. Wliat are the (iuartcr Sessions ? A. They are com-ts held l)efore two or more justices of the peace for each count \'. A chairman presides in each couii:, who acts in general as judge. The criminal jmisdiction is confined to the trial of small felonies and misdemeanours. Tlie comi also hears appeals against summary convictions in cases where the right of appeal is expressly given by statute to the person convicted. If the justices are in doubt as to the law of tlie case, they ma}' put the facts in the form of a special case for the opinion of the Queen's Bench Division. (Harris, p. 334.) Q. Xame five of the principal offences ^^■hi(•h are not triable at quarter sessions, and whether they are respectively felonies or misdemeanom"s. A. (1) Treason, miu'der, or am' capital felony ; (2) forgery ; (3) perjury and subornation of perjury ; (4) bigamy; (5) libel. 2 and 4 are felonies, 3 and 5 are misdemeanoui's. (Harris, p. 332.) Q. 'V\niat is the com-t of the coroner ^ A. So far as this falls within the scope of the criminal law, the business of liis comi is to incpiire when any one dies in prison, or comes to a violent or sudden death, by what means he came to bis end. If the jury return a verdict of nnuxler, or manslaugliter, the coroner must commit the prisoner for trial ; and he may be indicted on this finding, though in practice it is usual to take him before the magistrates. The coroner may direct the attendance of any legally (pialified medical jiractitioner, who attended the deceased dming his last illiK'ss, as a witness at tlie imjuest, or any other practitioner in actual practice in or near the place where the death happened. He nui}^ also direct a post-mortem examination, with or without an analysis of the internals. If the majority of the jmy are of opinion that the cause of death lias not been satisfactorily explained by the witnesses in tin; first instance, the coroner may require the attendance of other qualified practitioners as witnesses. (0 Si 7 Yict. c. 80.) PROCEDURE IN CRIMINAL CASES. 295 He may bind over all persons who have given evidence before him to prosecute, and give evidence on the trial. (7 Greo, 4, c. 64, s. 4.) And he may accept bail in cases of manslaughter. (22 Yict. c. 33.) Arrest and Examination. Q. When may a justice issue a warrant ? A. He can only do so when the information and complaint is in writing, and on oath ; but a summons may be issued A\^lien the information is by parol, and not on oath. (Harris, p. 342.) Q. Under what circumstances have Metropolitan police magis- trates and justices of the peace power to issue a warrant instead of, or in addition to, a summons for requiiing the attendance of accused persons before them ? and whence do they derive that jiower Y A. They may issue a warrant when a charge is made in writing and on oath that some treason felony or indictable mis- demeanour or offence has been committed within their jurisdic- tion, or having been committed elsewhere, that the accused was within theii' jmisdiction. But if a summons has been first issued, it appears clear that a warrant cannot be issued until after the retiu-n of the smnmons and the non-appearance of the defendant. (11 & 12 Yict. c. 42, s. 1.) Q. What is meant by backing a A^-arrant ? A. A warrant from a judge of the Queen's Bench Division extends over all the kingdom ; but the w^arrant of a justice of the peace in one county, as Yorkshire, must be backed, that is, signed by a justice of the peace in another county, as Middlesex, before it can be executed in the latter. (Harris, p. 343.) Q. Is a constable, who executes a warrant which has been issued without due cause by a magistrate, liable to an action for false imprisonment ? A. He is not. (24 Geo. 2, c. 44.) Q. What is a search warrant ? A. Where a person makes oath before a justice that he has probable cause to suspect that his property has been stolen, and 296 CUIMINAI. LAW. shows reason for Ids suspicion, a justice may issue a waiTnnt to search tlie premises of a person suspected of stealing it. And as to property other^vise the suLject of fraudident practices, if any credible witness proves upon oath before a justice a reason- able groimd for suspecting that any person has in his possession, or on his premises, any property with respect to which an offence punisliable mider the Larceny Act, 1861, has been committed, the justice may grant a warrant to search for such property, as in the case of stolen goods. (24 & 25 Yict. c. 96, s. 103.) Q. When may a search waiTant for a woman or girl bo issued y A. By the Criminal Law Amendment Act, 1885 (48 & 40 Yiet. c. 69, s. 10), a justice of the peace may, on the oath of a parent, relative, or guardian of any woman ov girl wlio, in tlie opinion of the justice, is bond fide acting in the interest of sudi woman or gud, that there is a reasonable cause to suspect that she is unlawfully detained for immoral purposes, issue a warrant to search for her. Q. When may a constable arrest a person without a warrant ? A. 1. For any treason, felony or breach of the peace connnitted in his presence. 2. On reasonable suspicion, or charge of having committed a felony, or given a dangerous wound ; but not, as a rule, for a misdemeanom-, unless to prevent a breach of the peace. 3. Any person whom he finds lying loitering in any highway, yard, or other place, during the night, and wliom lie lias good cause to suspect of having committed, or being aliout to commit, any felony against the Larceny, Arson and Malicious Injuries to Property, or Offences against the Person Acts respectively. 4. An^- holder of a licence granted under the Penal Servitude Acts who is reasonably suspected of having committed any offence, or broken any of the conditions of his licence. (Harris, p. 346.) i^. When may a ])rlvate person arrest an individual? A. 1. He may arrest a person whom he actually sees, or has reasonable cause to believe has committed a felony. But he must be prepared to prove that a felony has actually been com- mitted by some one, and it is not sufFicieiit f(.r him to prove PROCEDURE IN CRIMINAL CASES. 297 reasonable suspicion ; 2. Anyone he finds committing an indict- able offence by night {i.e., 9 p.m. to 6 a.m.) ; or 3. A person committing any ofi'ence punishable under the Larceny Act ; or 4. A i)erson committing an offence against the Coinage Act ; 5. Also the o^\^ler of property injm-ed, or his servant, or any other person authorized by him, may arrest a person committing an offence against the Malicious Injmies to Property Act ; 6. Any j)erson to whom property is offered to be sold, pawned, or de- livered, if he has reasonable cause to suspect that any offence punishable under the Larceny Act has been committed, is authorized and required to take the party offering, and the property, before a magistrate. (24 & 25 Vict. c. 96, ss. 31, 61, 103 ; also 14 & 15 Yict. c. 19, s. 11.) Proceedings before Magistrates, Bail, &c. Q. What penalty does a person incm- who wilfully refuses to give evidence before a magistrate ? A. He is liable to imprisonment for seven days. (11 & 12 Yict. c. 42, s. 16.) Q. Describe the proceedings before a magistrate. A. When the prisoner is brought before the magistrate, the latter or his clerk, in the presence of the accused, takes down the statement on oath or affirmation of the witnesses and puts the same in writing. These statements, called depo- sitions, are then read over to and signed by the respective wit- nesses, and by the magistrate. The accused may, of course, cross-examine the witnesses. The depositions are read over to the accused, and the magistrate then asks him if he wishes to say anything in answer to the charge, cautioning him that he is not obliged to say anything, but that whatever he does say will be taken down in writing, and will be used in evidence against him at his trial ; at the same time pointing out that he has nothing to hope from any threat that may have been held out to him to induce him to make any admission or confession of guilt. If the accused says anything it is taken down in writing and signed by the magistrate. 298 CUIMINAI. LAW. If the accused calls witnesses, their eNideuce is taken doAni, read, and signed in the same way. If the i)risoner is committed for trial, the witnesses are bonnd over, that is, they enter into recognizances to appetir and give evidence at the trial, and if they wiW not enter into sneh recognizances they may he com- mitted to prison until the trial. The recognizances, depositions, c^c, are then transmitted to the court in whicli the trial is to take place. Q. AVhat is the law in respect of evidence tendered on belialf of a prisoner accused of felony or misdemeanom- before a magis- trate or justice of the peace, and what course should be adopted under such circumstances ? A. The magistrate must, in the presence of the accused, take the statement of the witness, which is read over to and signed by the witness and the magistrate. The witness not being one as to character onl}', must then be bound over by recognizance to appear and give evidence at the trial. (-30 & 31 Yict. c. 35, Q. Have magistrates or justices of the peace any power to hear and determine cases against accused persons in their ab- sence wlio have been summoned to appear before them ? If so, when and under what circumstances 'f and name the statute giving such power, if any. A. On proof of the service of the summons on the accused they can proceed to hear the case, and may adjudicate tliereon as fully and effectually as if the accused had personally ap- peared.' (11 & 12 Vict. c. 43, s. 2 ; Harris, p. 5 JO.) (^. I u what cases may a magistrate not take bail ? yi. He may not do so if the prisoner is accused of treason. In this case it is allo\\ed only by order of a Secretary of State or of the Queen's Bench Division, or a judge thereof in vacation. Q. In wliat cases has a magistrate discretion as to whether lie will accei)t bail or not ? A. In tlie case of any felony other tlian treason or one of the following misdenieanom's: — obtaiiung property by false pretences, ^ecei^'ing stolen property, perjmy, concealment of birth, indecent exposure, riot, and several others. (Harris, p. 354.) PROCEDURE IN CRIMINAL CASES. 299 Q. In what cases is the magistrate bound to accept bail ? A. In all cases of misdemeanour, except those coming within the last answer. Q. For how long a period can an accused person be remanded if admitted to bail, and is there any difference in the period if the accused be remanded to prison without bail ; and, if so, what is the difference ? A. There is no limit to the date of the remand if bail is accepted, but if the prisoner is sent back to gaol, the remand must not exceed eight days. (30 & 31 Vict. c. 35, s. 3.) Q. If a magistrate or justice of the peace commits a prisoner for trial upon a charge of misdemeanour, and refuses to admit such prisoner to bail, has such prisoner any remedy ; and, if so, what? A. His remedy is to apply to the Queen's Bench Division either to admit him to bail, or for an order directing the magis- trate to do so. Assuming that the prisoner has an absolute right to be bailed, that is, that the magistrate has not a discre- tion to refuse it, an action will lie against the magistrate for false imprisonment, or he may be prosecuted for a misde- meanour. Indictment and Information. Q. What is meant by an indictment ? A. It is a written acccusation of one or more persons of a crime preferred to and presented on oath by a grand jmy. It lies for all treasons and felonies, and all misdemeanoiu's. Q. If a statute prohibits or commands some matter of jDublic concern, but enacts no punishment or penalty for disobedience to the statvite, is a person who disobeys it liable to any punish- ment, and if so, what ? A. tSuch person can be indicted for a misdemeanour, and will be liable to imprisonment, not exceeding two years, or fine. Q. Give an example of an indictment. A. " Suffolk, to wit : The jiu'ors for om^ lady the Queen u]^)on 300 CRIMINAI. LAW. their oath prosont that John Styh^?, on tlie 1st Jay of June in the year of our Lord 1876, three pairs of shoes, and one -waist- coat, f)f tlie goods and cliattels of John Brown, feloniously did steal, take, and carry away ; against the peace of om- Lady the Queen, her Cro\Nai and Dignity." Q. How in an indictment must stolen or damaged, &c., pro- perty be described wliere it was (a) a portion of tlie estate of a deceased person; (b) the property of a marriod Avoniaii; or (c) property belonging to a partnership ? A. (a) As belonging to his executors or administrators ; (b) in her husband, unless it is separate estate ; or (e) in any one of the partners, and " anotlier " or " others " added, as the case may be. (Harris, p. 361.) Q. How can a defect in an indictment be taken advantage of? A. If it is in an essential point, the defendant may (1) move to quasli the indictment ; or (2) may demm* ; or if the defect is not one wliicli is cui-ed by verdict, may (3) move in arrest of judg- ment ; or (4) bring a writ of eiTor. (Harris, p. 363.) Q. AVhat is the nile as to the amendment of defects in indict- ments ? A. Whenever there is a variance in certain points between the indictment and the evidence, the comi may, if it considers that the variance is not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on the merits, order the indictment to be amended on sucli terms as to postponing the trial as the Court thinks reasonable. The points as to which amendment can be allowed in this way are of the following natm-e : the names of tlie to\m, coimty, «!tc., the names or descriptions of any person or persons alleged to be the owners or owner of property, &.C., &.c. (14 & 15 Vict, c. 100.) Q. AVhat is the rule as to charging more than one offence in the same count of an indictment 'f A. As a rule more than one offence cannot be charged in the same count. There are, however, two exce^itions, — ^1) an in- dictment for burglary usually charges the defendant A\ith ha\ing broken and entered the house with intent to commit a felony, ami also with having committed tlie felony intended ; (2) in in- PllOCEDURE IN CRIMINAL CASES. 301 dictments for embezzlement by clerks, servants, or persons in the public service, the prosecution may charge any number of distinct acts of embezzlement, not exceeding three, which may have been committed against the same master within six months inclusive. (24 & 25 Vict. c. 96, s. 71 ; Harris, p. 366.) Q. What is the effect of charging a defendant with different offences in different counts of the same indictment ? A. (1) In treason there may be different counts charging the defendant with different kinds of treason. (2) In felony there is no objection in point of law to charging several different felonies in different counts, whether of the same or a different character. But in practice, as this would embarrass the prisoner in his defence, it is allowed to be ground for quashing the indict- ment, though not for a demm-rer or motion in arrest of judgment. (3) A felony may not be joined with a count in the same indict- ment for a misdemeanour. The indictment will be bad if de- murred to, or judgment may be arrested if the verdict has been guilty on the whole indictment, but not if the prisoner is con- victed of the felony alone. (4) An indictment for misdemeanour may contain several counts for different offences, even though the punishments for each may be different, provided that the legal character of the substantive offences charged is the same. Thus several assaults or several libels may be charged in the same in- dictment. (Harris, pp. 366 — 368.) Q. Are there any cases in w^hieli exceptions exist to the rule, that distinct felonies may not be charged in different counts of the same indictment ? A. (1) In an indictment for feloniously stealing a count or counts may be added for feloniously receiving the same property knowing it to have been stolen, and vice rcrsd. (2) In larceny several counts for any number of distinct acts of stealing, not exceeding tlu'ee, from the same person, within six calendar months from first to last. (3) A similar rule exists with regard to three acts of embezzlement. (Harris, p. 367.) Q. "When may a count be inserted in the indictment, charging a prisoner with a previous conviction ? A. In indictments for — (1) felonies mentioned in the Larceny Act ; or (2) for offences under the Coinage Act, provided that 302 CRIMIXAI, LAW. the previous convietlon l)e for the same offence against that or some other Coinage Act. (24 & 25 Viet. e. 96, ss. 37, 110.) Q. "Wliat is a criminal information ? A. It is a complaint by the Cro^^^l in the Queen's Bench Division in respect of some offence, not a felony, wliereby the offender is brought to trial icitJiont a previous findiiuj hij a (jrand Criminal inlurmations are of two kinds — (1) informations ex officio ; (2) informations hy the master of the CroAMi Office. Q. AVhen will an information ex officio lie ? A. Only at the suit of the Attorney-General in the Queen's Bench Division, and for a misdemeanour. Such a misdemeanom* must be one which peculiarly tends to distm-b or endanger G-overnment, or to interfere mth public justice, or to molest public officers : for example, a seditious libel or riot. (Harris, p. 371.) Q. For -what \\ill an information b}^ the master of the Crown Office lie ? A. This is filed in the Queen's Bench Division by the master of the Crown Office, at the instance of an individual. But leave of the court has to be obtained before it can be filed. This leave is obtained by motion for a rule ;//-s/, and must be supported by an affidavit of the facts ; and a recognizance must be filed in the Crown Office in a penalty of 00/. to prosecute such in- formation. It lies only for gross misdemeanours, which, on account of their magnitude or jiernicious tendency, deserve a most public condemnation, as bribery at elections, and aggra- vated libels. (Harris, p. 372 ; Crown Office Bules, 1886.) Q. Explain briefly the duties of the grand ]\\v\. A. The grand jmy are a number of the first gentlemen of the county, not more than twenty-tliree in number or less than twelve. Being sworn, tlic judge directs their attenlion to ])oints in the cases whicli rcfjuire it. Tliis is called th(^ judge's cliarge. The grand jmy withdraw with the bills of indictment, examine the mtnesses for tlie prosecution but not for the defence. Their duty is to see if there is sufficient ground to put the accused on his trial. If the majority of them think that tlie evidence makes out a jmmd facie case the words " a true bill " I PROCEDURE IN CRIMINAL CASES, 303 are endorsed on the back of the bill; if otherwise, the words "not a true bill." They return into court, and the clerk of arraigns or clerk of the peace declares their conclusions on the bills which they have considered. They cannot ignore a bill on the ground of insanity, which is a question for the petty jury. (Harris, pp. 383—385.) Q. Is there any check upon the right of persons to prefer indictments to the grand jury ? A. The general rule is, that any person may prefer a bill of indictment, either for felony or misdemeanour, against any other before a grand jury without any previous inquiry before magistrates or otherwise into the matter. This right may very easily be abused. It has therefore been provided by the Vexa- tious Indictments Act, 22 & 23 Yict. c. 17, that for the following offences, i.e., perjmy, subornation of perjmy, conspiracy, obtain- ing property by false pretences, keeping a gambling house, keeping a disorderly house, indecent assault, and (by the Debtors Act, 1869) certain misdemeanours, — an indictment cannot be presented to a grand jury unless one of certain steps have been taken. By the Criminal Law Amendment Act, 1885, all mis- demeanours thereby created fall within this Act. Q. Wliat are the steps one of which must be taken to enable an indictment to be presented for one of the foregoing crimes '? A. (1) The prosecutor, or other person presenting the indict- ment, must have been bound by recognizance to prosecute or give evidence ; or (2) the accused must have been detained in custody or bound by recognizance to appear and answer the indictment ; or (3) the indictment must have been preferred by the direction, or with the consent in writing, of a judge of the High Court, or the attorney or solicitor-general ; or (4) in the case of an indict- ment for perjury, the direction of an}^ court, judge, &c., autho- rized by 14 & 15 Yict. c. 100, to direct a prosecution for perjury must have been given. (22 & 23 Yict. c. 17.) Q. Is there any penalty on a person who, having availed himself of the provisions of the Yexatious Indictments Act, has failed to secure a conviction ? A. He may be ordered by the court to pay the costs of the accused's defence. (30 & 31 Yict. c. 35, s. 2.) 304 CRIMINAL LAW. Q. Your client. A., having consulted you on certain facts, •which, in your opinion, amount to a conspiracy by B., C, and D. to commit an unlawful act, what course should you advise A. to take to put B., C, and D. upon their trial for such con- spiracy ? Mention the steps seriatim and in detail. A. Conspiracy falls within the Vexatious Indictments Act, and you must therefore bring B., C, and D. before the magis- trates by a summons or warrant, for which you apply to the magistrates, and which must be served or executed on the defen- dants. You must attend with your evidence on the return of the summons, and get them, if possible, committed for trial. Then prepare the indictment ; present it to the grand jury, who will io-nore it or find a true bill, as the case mav be. Y'ou will deliver briefs to counsel, and have yom- evidence prepared for the trial, if a true bill is found. If the magistrates do not send the defendants for trial, you may insist on being bound over ■ yourself to prosecute; but you, of course, run the risk of having to pay the defendants' costs if they are acquitted. (^. Is there any limit as to time within which an indictment must be preferred for an offence ? if so, give five instances of offences, and time. A. Generally there is no limit to the time within which an indictment may be preferred. The following are exceptions to the rule : — (1) Treason, in general, if committed in Great Britain, must be prosecuted within three years. (7 tS: S Will. 3, c. 3, s. 5.) (2) Gaming offences under the statute, within twelve months. (!J Geo. 4, c. 69, s. 4.) (3) Offences under the Customs Act, within three years. (IG &. 17 Vict. c. 107, s. 303.) (4) Bribery at parliamentary elections, within one year. (17 Si 18 Vict. c. 102, s. 14 ; 2G Vict. c. 29, s. 5.) (5) Indictments or informations upon penal statutes, where the forfeiture is to the Crown only, within two years; and where the forfeiture is to the Crown and the pro- secutor, Avithin one year. (31 Eliz. c. 5.) PROCEDURE IN CRIMINAL CASES. 305 Certiorari. Q. What is a writ of certiorari, and on what grounds may it he obtained ? A. It is a writ issuing from the Queen's Bench Division, whereby a criminal proceeding is removed from an inferior court into the Queen's Bench Division, the Supreme Court of Criminal Jurisdiction. It is directed to the inferior court, and orders the indictment to be returned into the Queen's Bench Division. It may be obtained by the Attorney- General on behalf of the Crown as of right. In other cases it must be shown by the party demanding it, whether prosecutor or defendant, either (a) that a fair trial cannot be had in the court below; or (b) that some question of more than usual difficulty or importance is likely to arise upon the trial ; or (c) that a view of the premises may be necessary ; or (d) that a special jury may be requisite to insure a satisfactory trial. (16 & 17 Vict. c. 30, s. 4.) Q. How is a certiorari obtained ? A. It may be obtained by the Crown as of right. In other cases it is obtained on motion supported by affidavit, showing- one of the grounds above mentioned. If granted at the instance of the defendant, he must enter into a recognizance for his appearance, and that if convicted he will pay the prosecutor his costs incurred subsequent to the removal of the indictment, and if at the instance of the prosecutor, he must enter into a recognizance to pay the defendant, if acquitted, the like costs. (Harris, pp. 392 — 394.) The Trial and Evidence. Q. How is the prisoner brought up at the assizes or quarter sessions ? A. Unless he has been previously committed to prison under a warrant, if an indictment is found at the assizes or sessions, the clerk of indictments or of the peace, upon the appli- cation of the prosecutor, will grant a certificate of such indict- ment having been found. Upon production of this certificate a justice will issue his warrant to apprehend the person ; or a N. X 306 CRIMIXAI, LAW. benc'li warrant may issue, which is a warrant signed at the assizes by the judge or at the sessions by two justices of the peace. (Harris, pp. 387, 388.) Q. What is meant by aiTaigning tlie prisoner Y A. Calling him to the bar, reading the indictment to him, and asking him whether he is guilty or not. Q. If the prisoner stands mute what course may be adopted ? A. If he stands mute of malice, though formerly this had the force of a con^dction, the coui't may now order a plea of not guilty to be entered on behalf of such person. If he is mute " ex vi.^itationc JDci," the same plea would always have been entered. (Han-is, p. 397.) Q. T\niat is meant by turning Queen's evidence ? A. When sufficient e\idence of a felony cannot be obtained from other quarters, and when one of several persons accused can supply this defect, and the presiding judge approves, one of the prisoners may be put into the box to give evidence against the others, and a verdict of acquittal will be taken against him. But, of course, his evidence being that of an accomplice, is regarded with suspicion, and requires con'oboration. (Hams, p. 400.) Q. Wliat different pleas may be pleaded by the prisoner ? A. (1) Plea to tlie jurisdiction. (2) Plea in abatement. (3) Special plea in bar, being either (a) aiifirfois acquit ; (b) aidrofois convict ; (c) autrefois attaint ; or (d) pardon. (4) General issue of not guilty. Q. Wiat is meant by the plea of autrefois acquit ? A. That the prisoner has been previously tried for the same offence and acquitted. The test as to whether the same offence is being charged over again appears to be, whether the facts charged in tlie second indictment would, if true, have sustained the first. Tims, an acquittal for mm-der may be pleaded in bar of an indictment for manslaughter, and vice versa. But an ac- quittal as accessory will not bar an indictment as principal, or vice versa. (Hanis, p. 4U4.) Q. ^Vhat is the plea of autrefois convict, when should it be pleaded, and how is it proved ? A. This is a special plea in bar, and may bo pleaded where PROCEDURE IN CRIMINAL CASES. 307 the defendant lias formerly been convicted for the same offence for which he is now indicted. The test as to the identity of the crime, and the general rules as to the plea, are the same as those relating to the plea of autrefois acquit. Q. What is a demurrer to an indictment ? And what is the effect of a decision upon the argument of a demurrer ? A. It is an objection on the part of the defendant, whereby he admits the facts alleged in the indictment to be true, but insists that they do not in point of law amount to the crime with which he is charged. If judgment on the demurrer is given for the defendant, it is to the effect that he be discharged, provided that the objection be a substantial one ; if it be a formal objection, that the indictment be quashed. If judgment is given against the de- fendant in felonies the judgment is final ; in misdemeanours it is final unless the court should afterwards permit the de- fendant to plead over. (Harris, pp. 408, 409.) Q. What are the different kinds of challenges to the jiuy ? A. (1) For cause shown. (2) Peremptory. The former are divided into (a) to the array, when exception is taken to the whole panel ; (b) to the poll, when particular individuals are objected to. Q. On what ground may a challenge be made to the array ? A. On the ground of some partiality or default in the sheriff, or the person who arrayed the panel. It may either be (1) a principal challenge, which is founded on some manifest partiality, as if the sheriff be the prosecutor or person in charge, or (2) a challenge for favour, where the ground of partiality is less direct, as when one of the parties is tenant of the sheriff. Q. What peremptory challenges are there ? A. In felonies, the prisoner has twenty peremptory challenges. In treason he has thirty-five. In misdemeanour he has none as a right, but it is usual in England at least, though not in Ireland, on application to the proper officer, for him to abstain from calling any name objected to by the prosecution or defen- dant within reasonable limits. x2 308 CRIMINAL LAW. Q. State some cases in which the accused, or tlio luisltaud or wife of the accused, may give evidence. A. It is a general principle of English law, that no one is bound to criminate himself, and neither the accused, nor his husband or wiie, can give e\-idence either for the prosecution or for the defence. (38 & 39 Yict. c. 88, s. 4.) But (1) in the case of sending an unseawortliy ship to sea, the accused may give e^idence. [2) Also a person charged with buying or receinng arms, equipments, &c., from a soldier, or the husband or wife of such person, may give e^'idence. (42 & 43 Yict. c. 33, s. 149.) (3) In the case of an offence imder the Conspii-acv and Protection of Property Act, 187'), the jtarties, their husbands or vdves, are competent witnesses. (38 & 39 Vict. c. 86, s. 11.) (4) Under the Explosive Substances Act, 1883 (46 & 47 Yict. c. 3), s. 4, the accused person, and his ^\ife or husband, may give evidence. (5) In indictments or proceedings for the pui'pose of trying or enforcing a civil right only. (40 Yict. c. 14, s. 1.) For example, on indictment for the non-repair of a public high- way or bridge, or for a nuisance to any public highway, &c. (6) In eases of personal injury [c. g., assault) by husband to wife, and rice rend. (7) Under the Married Women's Pro- perty Acts, 1882 and 1884, Imsbaud and wife can give evidence against the other in matters relating to property. (8) Under the Criminal Law Amendment Act, 1885, the prisoner, and his or her husband or wife, are comj^etent, but not compellable, witnesses, on the trial of any offences under that act, and certain offences under 24 & 2-3 Yict. c. 100, as rape, indecent assault, and abduction. (48 & 49 Yict. c. 69.) Q. "\Miat was a jury " viedietate liiigiitB " ? A. Fonnerly, in cases of felony or misdemeanom*, but not of treason, an alien had a right to be tried bv a jury half of whose number were aliens, or at least, if not half, as many as the town or i»lace could fiu-nisli. Put tliis jnivilege was taken away by the Naturalization Act, LS70, and an alien is now tried as if lie were a natm-al born subject. Q. AYlien may a special jury be obtained y A. Only in misdemeanours wlien tlie record is in tlie (iueen's Bench Division, and by pennission of the coui-t, on the motion of rUOCKDURE IN CRIMINAL CASES. 309 either prosecutor or defendant. There is no power to order a special jury in cases of felony. The party applying for the special jury must pay the extra fees and expenses, unless the court certifies that it was a proper case to be tried by a special jury. Q. On an indictment for felony the prosecution proposes to ask a witness, who formerly acted as solicitor for the defendant, questions tending- to show that the prisoner consulted the soli- citor with the view to further the felonious act. Can such a question be objected to ? A. It cannot be objected to. Professional privilege does not extend to communications made in furtherance of any criminal, or fraudulent purpose. {E. v. Cox, 14 Q. B. D. 153 ; 54 L. J. M. C. 41 ; 52 L. T. N. S. 25 ; 33 W. R. 396; 15 Cox, 611.) Q. In order to invalidate the testimony of a witness may he be asked — 1. If he has been previously convicted. 2. If he has been guilty of any crime of which he has not yet been convicted. 3. If he has been guilty of any disgraceful act in his past life ? A. 1. He may be asked this, and if he does not admit it the conviction may be proved. 2. He may be asked this, but if the coiu-t is of opinion that there is reasonable ground to apprehend danger to the witness from his being compelled to answer, it will not compel him to answer. 3. He may be asked this, but if he denies it his denial is conclusive, and he cannot be contradicted, unless the fact is relevant to the issue. (Harris, pp. 439, 440.) Q. Are there any cases in which more than one mtness is required ? A. 1. In treason or misprision of treason (except where the overt act alleged is the assassination of the Queen, or any direct attempt against her life or person), two witnesses are requii'ed. They must both be to the same overt act of treason, or one of them to one overt act, and another to another overt act of the same species of treason. 2. In perjmy there must be two wit- nesses, but it will be sufficient if the second corroborates in any material particular what the first has said. Q. How is the evidence of an accomplice viewed ? A. With great suspicion, and, unless corroborated in some 310 CRIMINAL LAW. material part by other evidence, the judge will du-ect the jury not to convict. Q. How is the attendance of witnesses secured ? yl. If the Antnesses have been examined before tlie magistrate they are usually boimd over by recognizance to apjiear at the trial and give evidence. If they do not appear, the recognizances may be estreated, and the penalty le^'ied. All other witnesses may be compelled to attend by subpoena, wliich is obtained either at the CroAvn Office in London, or of the clerk of assize, or clerk of the peace at the sessions. (Harris, p. 442.) Q. Wliat penalty is incmTcd by a Antness who does not obey a subpccna ? A. If the writ has been issued out of the Crown Office, the Queen's Bench Division, upon application, will grant an attach- ment for contempt of court. In other cases the proceedings must be by way of indictment. (Hams, pp. 442, 443.) Q. Wliat power is there to allow their expenses to -witnesses ? A. In felonies the court may order payment to the prosecutor and his Aptnesses of a reasonable sum for expenses, trouble, and loss of time, and this whether the result of the trial be a convic- tion or acquittal, or no bill be found, and even though no bill is preferred. A like reasonable sum may be ordered to be paid to those who bond fide attend the court in obedience to theu- recog- nizances or subpoena. A magistrate may also grant to any vdi- nesses examined before him, whether the prisoner is committed or not, a ceriificate for his expenses. In many cases of misdemeanour there is a like power of order- ing pa}nnent of witnesses' expenses. Each of the Criminal Con- solidation Acts provides that the court before Avhom any indict- able misdemeanoui', punishable under such act, is prosecuted may allow the expenses of witnesses, as in felony. Tlie like power applies to the expenses of witnesses present who a])]>ear after having been bound by recognizance by the examining magistrate to give evidence. (Harris, pp. 444, 445.) Q. May the defendant or the plaintiff over l)o ordered to pay the costs of the prosecution 't A. On a conviction for treason or felony, tlie court may order PKOCEDURE IN CRIMINAL CASES. 311 the prisoner to pay the whole or part of the costs of the trial ; and in cases of assault the defendant, on conviction, may he made to pay the prosecutor's costs, and a reasonable allowance for loss of time. The prosecutor of any offences coming within the Vexatious Indictments Act may also he required to pay the defendant's costs on the acquittal of the latter ; and in private prosecutions for libel, the defendant may also recover his costs from the prosecutor. (Harris, pp. 445, 446.) Q. On whom is the bm^den of proof in criminal cases ? A. On the i^rosecution as a rule ; unless it is shifted by act of parliament, as where it is declared penal (1) to possess public stores marked with a broad arrow ; or (2) to possess coining tools, &c., in which cases the mere proof of the possession raises a pre- sumption of guilt. (Harris, pp. 454, 455.) Q. May evidence of the bad character of the prisoner be given ? A. Not unless evidence has previously been given of his good character. Q. What sort of evidence of the good character of the prisoner may be given ? A. Witnesses may be called to speak to the general good character of the prisoner, but not to prove particular acts. Their evidence must be as to the general reputation of the prisoner, and not as to the witness's own opinion. So general evidence of good character may only be disproved by general e^adence of bad character, and not by particular cases of misconduct. Q. In what cases may evidence of other offences be given ? A. (1) In treason, conspiracy, sedition, libel, &c. (2) To jH'ove the guilty knowledge of the defendant, &c. ; i. c, on an indictment for uttering forged bank notes or counterfeit coin it may be proved that the defendant at other times uttered or had in his possession other forged bank notes or counterfeit coin. (3) Where it is necessary to prove malice or intent, evidence of other offences showing this may be given. Thus, on a trial for murder, evi- dence of former unsuccessful attempts or threats to mmxler would be admissible. Q. State the rule as to the confessions admissible in criminal cases. A. Confessions must be free and voluntary. No confession is 312 CKIMINAI. LAW. admissible which is made iu consequence of any indueoment of a temporal natiu-e, having reference to the charge against the prisoner, hekl out by a person liaA-ing authority in the matter of liis prosecution. But inducements of a sjiiritual or moral nature do not render the confession inadmissible. Q. May a deposition taken before the magistrate ever be read at the trial ? A. If a A\itness is dead or too ill to travel, or pm-posely kept out of the way by tlie prisoner or his friends, his depositions before the magistrate may be read, provided that they were taken in the presence of the accused, and that he had an opportunity of cross-examining him. (11 & 12 Vict. c. 42, s. 17.) Q. IIow is a previous con\action proved ? A. By a copy of the record, i.e., the indictment, trial, conviction and judgment, omitting fonnal parts, certified under the hand of the clerk of the court, or other officer having the custody of the records of the court where such conviction took i)lace, or his deputy. (14 & lo Viet. c. 9, s. Vi.) The identity of the prisoner with the person mentioned in the record nuist, of com'se, be proved. A summary con^■ietion may be jiroved by a copy of the conviction, purporting to be signed by any justice of the peace having jmisdiction over the offence in respect of which such conviction was made, or by the clerk or other officer of any com-t to which such conviction has been retui'ued. (34 & 35 Vict. c. 112, s. 18.) Q. Are there any means of taking the testimony of a witness whose death is apprehended ? -1. If it appears to some justice of the peace, and it is the opinion of a registered medical practitioner, that some person able to give material evidence as to an indictable t)frence is not likely to get better, and it is not praclii^alile to take his deposi- tion in the ordinary way, the justice may take in writing the statement on oath of the person who is ill, o})portunity being given to the other party, i.e., the prosecutor or the accused, to cross-examine tlie deponent. If on tlie tiial it is proved that the deponent is dead or will never be aide to traAcl or give evidence, the statement may be read in evidence. (30 & 31 Vict. c. 35, s. G.) PROCEDUKE IN CRIMINAL (;ASES. 31o Q. "When is a declaration by a deceased person as to a crime admissible in evidence ? A. When sucli person has given up all hope of getting better, and the declaration relates to the crime which is actually being prosecuted, and the death is caused by such crime. Q. In Avhat cases may a previous conviction be alleged in the indictment ? A. In the case of indictments for (1) any felony; or (2) utter- ing or possessing false or counterfeit coin; or (3) obtaining goods or money by false pretences; or (4) a conspiracy to defraud ; or (5) any misdemeanour under the Larceny Act, if the prisoner has been found guilty, then, if he has been previously convicted of any of the foregoing crimes, he may be asked whether he has been so previously convicted, the previous conviction being alleged in the indictment. If he denies it, the jury are then sworn to inquire as to the prcAious conviction, that is, whether the accused was the person so convicted. (Harris, p. 475.) Q. May evidence of a previous conviction of the prisoner ever be given before verdict on the prior charge ? A. It may only be given when the prisoner has called evidence of good character. (Harris, p. 476.) For cases where such evidence may be given after a verdict on the prior count, see last answer. Q. What course may be adopted if the jury disagree on a criminal trial ? A. The court may discharge the jury if they think fit ; and the prisoner will then be tried by a fresh jury. Or the judge might, if he pleased, order the jury to be locked up until they agree, or, if the trial is on circuit, accompany him from town to town. It must be remembered that, in all criminal cases, the verdict of the jury must be unanimous. Motion in Arrest of Judgment. Q. What is meant by a motion in arrest of judgment? A. This may be made if the prisoner has been found guilty. ai4 CRIMINAI, LAW . It is f()r some defect in law apparent on the face of the record, and not for an iiTep:ularitv in tlie proceedings. The ohjection must be a substantial one, and the defect must not have been amended duiing the trial or by the verdict. (Harris, p. 477.) Punishment. Q. Wliat is the punishment for felonies ior which no express provision is made ? A. Penal servitude for not more than seven or less than five years, or imp. not exceeding two years, and, if a male, whipping once, twice, or thrice. (7 & 8 Geo. 4, c. 28, s. 8 ; 20 ».^ 21 Vict. c. 3, s. 2 ; 27 & 28 Vict. c. 47, s. 2.) Q. Wliat is the usual punishment for felony after a previous con\iction for felony ? A. Provided the latter felony is not simple larceny, the punishment is p. s. for life or for not less than five years, or imp. not exceeding four years, and, in the case of a male, whipping once, twice, or tkrice. (Harris, p. 486.) The least punishment which can be awarded to a person con^•icted of a crime pimishable with p. s. after a previous conviction for felony, is seven years p. s. (27 & 28 Vict. c. 47, s. 2.) Q. What is the punislmaent for simple larceny after a previous conviction for felony ? A. P. s. fi'om seven to ten years, or imp. not exceeding two years, with or without hard labour or solitary confinement, and, in the case of a male under IG years of age, with or without a wliipping. (24 & 25 Vict. c. 96, s. 7.) For simple larceny after pre\'ious cou\dction for an}' indictable misdemeanour under the Larceny Act, p. s. for five to seven years, or imp. not exceeding one year, \\ith or without hard labour or solitary confinement. {Ihid.y s. 8.) Q. If a prisoner is found guilty of several distinct offences on different counts, may he be sentenced to terras of imprisonment the second to commence at the expiration of the first Y A. He may be. {11. v. Castro, L. P. 5 Q. B. D. 400.) I I'UOCEDURE IN ('JllMlNAL CASES. 315 Q. What is the smallest amount of penal servitude which can be awarded ? A. Five years. (27 & 28 Vict. c. 47, s. 2 ; 42 & 43 Vict. c. 55, s. 1.) Q. What as a general rule is the longest term of imprison- ment which can be awarded ? A. Two years; but under some statutes imp. to the extent of three, four, or more years may be awarded. (Harris, p. 489.) Q. When may hard labour be given as a punishment ? A. In nearly all cases of felony and certain cases of mis- demeanom-. Each of the Criminal Consolidation Acts, 1861, provides that the court may add hard labour to imprisonment in cases of all indictable offences, whether felonies or misdemeanom's, under those acts. (Harris, p. 490.) Q. State the chief cases in which whipping may be awarded. A. (1) In the case of juvenile offenders. (2) In cases of robbery with violence, or an attempt to choke, suffocate, or strangle. (-3) For felony after a previous conviction for felony. (4) For felony for which no particular punishment has been provided. (Harris, pp. 491, 492.) Q. Is there any limit to the amount of solitary confinement which may be awarded ? A. A prisoner may not be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year. (Harris, p. 492.) Q. When may police supervision be ordered ? A. When a person is convicted on an indictment for any felony, or the offence of uttering false or counterfeit coin, or of possessing counterfeit gold or silver coin, or of obtaining money or goods by false pretences, or of conspiracy to defraud, or of any misdemeanour under the Larceny Act, if a previous convic- tion of a crime is proved against him, the Court may, in addition to any other punishment, direct that he is to be subject to the supervision of the police for a period of seven years or less, com- mencing immediately after the expiration of the sentence passed upon him for the last of such crimes. (34 & 35 Vict, c. 112, s. 8.) 316 CKIMINAI, LAW. (I "What is tlie effect of a coiu-iction for treason or felony upon an oHice held under the Crown ? A. Unless a pardon is received within two months after the conv-ietion the office is vacated, and until the expiration of the punishment, or a pardon has heen given, the felon can hold no ofHce under the Crown, Occ. (33 & 34 Vict. c. 23, s. 2.) Q. May an order be obtained for the restitution to the prose- cutor of goods stolen or embezzled from him ? A. Yes; if any person is guilty of an}^ felony or mis- demeanom-, in stealing, embezzling, or knowingly receiving any of the property, and is convicted for such offence on an indict- ment by the owner of the propei-ty or his personal represen- tatives, the property is to be restored. But there is an exception as to negotiable instruments taken by a person bond fide and for value without any reasonable cause to suspect that the same had been stolen, &c. (24 & 25 Vict. c. 96, s. 100.) An innocent holder may even be compelled to give up the goods; but a person who has bought them in market overt, and sold them before the conviction, cannot be compelled to pay their value. New Trial. (^. ^Vlien may a new trial be had in criminal cases? A. Onlv when the indictment has been preferred in the Queen's Bench Division or has been removed there by cciiiorari, and only after a con\iction, except perhaps where the defendant has kept back witnesses for the prosecution, or where the object of the criminal proceeding is to try a right, as in the case of a prosecution for the non-repair of roads ; and in all cases only for misdemeanours, and not for felonies. (Harris, pp. 497, 498.) Q. Upon what grounds may a new trial be obtained ? A. On such grounds as that the prosecutor has omitted to give due notice of trial, or tliat tlic verdict has been contrary to the evidence, or that (,'vi charge ; (2) where the imprisonment is for failing to comply \\ itli an order for the payment of money; PROCEDTTRE IN CRIMINAL CASES. 327 or for tlie finding of sureties, for the entering into any recog- nizance, or for the giving of any security. Q. State some of the regulations of the Summary Jirrisdiction Act as to appeals to quarter sessions. A. The appeal must he to the next practicable court of general or quarter sessions having jurisdiction, and holden not less than fifteen days after the day of the conviction. The ap- pellant must give notice in writing of his intention to appeal, within seven days after the conviction, to the other party, and to the clerk of the court of summary jurisdiction. Within three days after such notice, the appellant must enter into recognizances, or give secuiity to prosecute the appeal, and abide the result and pay such costs as may be awarded. (42 & 43 Yict. c. 49, s. 31.) Q. Grive an account of the appeal to the High Court by way of stating a special case. A. Any person aggrieved may apply to the coiu't which con- victed him to state a special case, setting forth the facts and the grounds of objection to the conviction, which must be that it is eiToneous in point of law or in excess of jiuisdiction. If the court declines to state the case, he may apply to the High Court for an order requiring it to be stated. (42 & 43 Yict. c. 49, s. 33 ; 20 & 21 Vict. c. 43, s. 1.) After this there can be no appeal to quarter sessions. (20 & 21 Vict. c. 43, s. 14.) Q. What are the chief statutory provisions relating to the extradition of criminals ? A. If there is an extradition treaty with the country in which the offence has been committed, and which demands the surrender of the offender, and the Secretary of State makes an order to that effect, the magistrate or justice may issue a warrant for the apprehension of the offender ; but he must first be satisfied that the accused is charged with a crime for which he may be sm-rendered, and that the evidence is such as would justify his committal for trial had the offence been committed in England. But no person is to be surrendered for a political offence, and provision must exist by the laws of the foreign state that the offender is only to be tried for the offence for which his smTender is demanded. The offender is not to be surrendered till the expiration of fifteen days from the date of 328 CRIMINAL \..\\V. his committal to prison to await liis surrender, and he may in that period apply for a habeas corpus. (33 & 34 Yiet. c. 52 ; 36 & 37 Vict. c. 60.) Q. Can a person who •wilfully and falsely pretends to be a solicitor be punished simimaril}^ for so doing, and, if so, under what statute, and what is the procedure and punishment, and is there any appeal, and, if so, under wliat statute, and wliat is the procedure and punishment, and is there any appeal, and, if so, to what tribunal ? A. Yes; he can be simimarily convicted by two justices, and fined 10/. for each offence. There is no appeal. (37 & 38 Yict. c. 68, s. 12.) Q. Is it an offence for a solicitor, or person not a solicitor, or both, to conduct a case for a prosecutor or prisoner before a magistrate in a poHce com-t or justices in petty session without having a certificate to practise ? If yes, have magistrates and justices any summary jurisdiction against either person ? and, if so, which and what summary jm-isdiction, and under what statute ? A. It is an offence punishable in each case by a fine not ex- ceeding 10/. for each offence. The fine can be iaflicted by two justices, or by a magistrate autliorised to act alone, imdcr the (Summary Jurisdiction Act. (37 cV: 38 Yict. c. 08.) Q. Have justices of the peace or poUce magistrates any sum- mary jm-isdiction in cases of cruelty to animals ? if so, how is it derived, and what is then- power Y A. In various cases imder certain statutes, as, for example: — (1) Killing or maiming dogs, bu'ds or beasts, not being cattle, but being either the subject of larceny at com- mon law or being ordinarily kept in confinement, or for any domestic pm'pose. Punishment, up to six months' imprisonment or 20/. fine, in addition to tlie damage ; second offence up to twelve months' im- prisonment. (24 & 25 Yict. c. 97, s. 41.) (2) Cnielly beating, over-driving, or torturing any animal wliatever, is punisliable by a fine not exceeding 5/. (12 & 13 Yict. c. 92, s. 2.) Q. If a tenant of a messuage owes rent to his landlord, and PROCEDURE IN CRIMINAL CASES. 329: fraudulently removes and conveys away from such, messuage liis goods or chattels, to prevent the landlord distraining for rent then due, has the landlord any remedy ; and, if so, what ? and quote the statute under which he has such remedy (reign, year and chapter). And have justices of the peace any power in the matter, and, if so, what power ; and is there any limit as to time, and, if so, what limit, for taking proceedings before such justices; also as to the value of the goods, and, if so, what value ? A. By 11 Geo. 2, c. 19, it is provided that a tenant so remov- ing goods, as stated above, shall be liable to forfeit double the value of the goods so removed ; when the goods do not exceed 50/. in value, complaint can be made in writing before one ;justice, and the offender will then be summoned to appear before two or more justices, who may order him to pay double the value to the landlord, which on non-payment (after notice of the order) may be levied by distress and enforced as a civil debt under the Summary Jurisdiction Act, 1879. The order of the justices is subject to appeal to the quarter sessions. In ad- dition, the landlord can follow the goods within thirty days of the removal, and take them wherever he finds them, unless they have been sold bond fide to a third person for value. (Ss. 1, 2). Q. What is meant by a pauper's " settlement " ? How is any dispute on the question decided ? A. It is the right obtained by residence, or in certain other ways, to be maintained in case a person becomes a pauper at the expense of a certain parish. Settlements may be obtained by birth, by parentage, by marriage, by occupying a house of the annual value of 10/. for a year, and actually paying the rent and rates for the same, by being bound apprentice, by paying rates and taxes, and by residing for three years in a parish, &c., &c. Disputes as to paupers usually arise on the question of their removal from one parish to another, and these are decided by two justices. An appeal lies from the justices to the quarter sessions. Q. If a husband neglects or refuses to maintain his wife, in consequence of which she becomes chargeable to the parish, have 330 CRIMINAL LAW justices of the peace any power in such a case, and, if so, what power, and how is it enforced ? A. They may issue a summons, and may order the liushand to pay such sum, weekly or otlierwise, as they think fit. (31 & 32 Yict. c. 122, s. 33.) INDEX. PROBATE. Absence for seven years, administration after, 29. Administeatiox, second grants of, 3. when granted, 22. when two wills inconsistent, ib. diflferences between grant of, and probate, ib m case of a bankrupt, 23. order in which next of kin entitled to claim, 24 25 when creditor entitled to, ib. ' with will annexed under power of attorney, 18 how soon granted, ib. J' • when granted, 27. to whom granted, 28. to residuary legatee, ib. to creditor, ib. principles on which Court acts in granting- 24 whole blood preferred to half blood, 25 £-red,?r'"'' ^''^'''^ ^'^''^^ "^^*'' ^''* applicant pre- by creditor must serve citation on Queen's Proctor, 26 ot bastard's estate, ib. _ on what condition allowed, ib. rights of crown as to, 27. by persons resident abroad, ib. after absence for seven years, 29. limited grants of, 30. to sale of ship, 34. S-««/'°,!»-f "'"!°f °';'°^" residuary legatee is under age, ib. aioantc minore (ctatc, lb. what person applying for grant must do, 3 1 . durante demeniid, ib. pendente lite, ib. durante absentia, 32. general rule as to limited grants of, ib. de bonis non, 32, 33. " save and except," 34. '^ cceterorum bonornm,''^ ib. cessate grant, ib. when unnecessary, 38. Administration bond by married woman, 37. 332 INDEX. A Probate — continued. Admixisteatoe, of an executor, 33. executor of, ib. administrator of, i7/. ad litem, what is, 34. duties of, as to iuveutorie.'*, 37. when personalty sworn under the correct amount, 41. ADiUNISTEATOES, oath of, 23. bond of, ib. course on breach of, ib. justification of sureties to, 28. reduction of penalty on, ib. for particular purposes, 33. ad litem, ib. ad colli gen da bona, ib. ADSinaSTRATEIX, married woman formerly could not act without husband s consent, 37. effect of Married Women's Property Act, 1882, ib. ArFtDAVIT, as to scripts, 49. by blind or illiterate person, 53. general rules as to, in probate matters, ib. when attestation clause defective, 16. Alteeatioxs in will, presumption as to, 10. Appeaeaxce to caveat, 45. under protest, 48. Attestation clause, course necessary when defective, 16. Attesting witnesses, evidence when both dead, 16. DIVORCE. Act on petition, .51, 80. when appearing imder protest, 58, 78. Admission, divorce granted on, 83. Adultebee, damages against, 71. ADTn.TERY, as a ground for divorce, G4. definition of incestuous, ib. as a discretionarj- defence, 69. rule as to proof reijuired of, 82. Affidavit, verifying jietition for divorce, • (3) fraudulent preference, ib.' (c) acts indicating insolvency, (1) filing declaration of insolvency or filing petition, (2^ execution levied by seizure and sale, ib (,6) service of banki-uptcy notice 98 (4) notice to creditors that debtor has suspended Ijayment, ib. '■ 334 INDEX. A Bankruptcy — continued. Action, order to stay, how obtained, 104. bv triu^tce of bankrupt partner against partnership debtors, ■ lo4. ri{,'hts of, -which do not vest in triLstce, 123. Adjudicatiox in bankruptcy, when Court not obliged to make, 95. effect when creditor is secured, ib. what is e\'idence of, 108. order of, cannot be made against a firm, ib. ADMEasTEATiox, effect of commencement of proceedings for, 161. Annttljient, of bankruptcy. 111. what amounts to payment in full for purpose of, ib. of composition, 157. Appeals, in bankruptcy, 92. when not allowed, ib. within what time made to Court of Appeal, ib, security in, ib. from Board of Trade, 93. against decision of trustee, 142. Aekest of debtor, reasons for, 111. Aeticled clerk, effect of bankruptcy of master of, 131. ECCLESIASTICAL LAW. Act on petition iu ecclesiastical law, 189. Advowsons, 172 et srq. distinction between appropriated and unappropriated, 173. right to, how formerly tried, 176. how action to be brought to recover, ib. how exchanges may be effected, 181. vacancy in, how filled, 182. Alb, use of, illegal, 184. Allegiance, oath of, 168. interpretation of, 183. Answeh, defendant's, in ecclesiastical suits, 190. Appeals in ecclesiastical cases, 188. Appbopeiated advowsons, 173. AncnBisnop, how appointed, 160. duties and powers of, ib. may grant special dispensations, ib. Lambeth degrees, ib. appeal from court of, 188. INDEX. A 335 Ecclesiastical Law — continued. AECnBEACON, authority of, 167. court of, 188. appeal from court of, ib. Aeeeaes of tithe rent-charge recoverable, 175. Aeticles, Thirty-nine, 168. ADMIRALTY. Accounts between co-owners, how settled, 216. Action, money ia Court in Admiralty, how paid out, 224. Actions in Admiralty Division, how taken ia Admu'alty, 228. distinction between in rem and in personam, 220. how commenced, ib. when ship may be arrested, 221. how tried, 227. Admiealty Division, principal cases of jurisdiction of, 199. jurisdiction in towage, 206. damage, 207. rule of, where both vessels colliding are at fault, 209. jurisdiction of, in case of damage to goods, 210. wages, 214. necessaries, ib. accounts between co-owners, 216, mortgages, 217. practice of, 220-229. actions in, how commenced, 220. service of writ, how effected, 221. speedy trial in, 227. actions, how tried in, ib. sale in, how conducted, 229. rule as to costs in, ib. Affidavit on arrest of ship, 221. Allotment note, 213. action on, ib. Appeaeance, consequence of default of, 226. Apportionment of payment under bottomiy bond on ship, freight and cargo, 218. Appeaisement, commission of, 223. Abeest, of ship, 221. affidavit necessary before, ib. how prevented, 222. Assessors in Admiralty Division, 227. attendance, how secured, ib. •336 INDEX. A CRIMINAL LAW. Abduction', of women and cliilJren, 2C4. with intent to marry, ib. with carnal intent, ib. under sixteen, ib. stealing child, ib. AbobTION, offences and piuiislnncnts, 263. AccESSoniES. before the fact, 238. after the fact, ib. how punished, ib. how indicted, 239. how tried, ib. where tried, ib. AccoMTiiiCE, evidence of, 309. Accounts, falsification of, 279. ADiiiBALTT jurisdiction, 293. British ships, ib. indictable oticnccs, ib. Adultebating food, 258. Animals, cruelty to, 328. Appeextice, 267. Aeeest, rescuing from, punishment for, 246. by private individual, 296. Absox, definition of, 286. punishment for, ib. offences of nature of, ib. what must be in-oved, 287. Assault on wife, summary jurisdiction, 322. Assaults, definition of, 26o. who may be indicted, ib. proceedings, ib. common, ib. ]>owor of Court, ib. summary ])roceedings, 266. off ciicis "relating to, ib. witli intent to cfimmit felony, ib. administering j)oison, ib. e.xploding gunpowder, 267. apprentice and master, ib. Assizes, 292. INDEX. — B 33'J B. PROBATE. Bastard, administration of estate of, by creditor, 20. by nominee of crown, ib. BuENiNG of will, what amounts to, 11. DIVORCE. Banns, false publication of, G2. Bigamy, definition of, G5. BANKRUPTCY. Bankrupt, property of, vesting in trustee, IIG. not divisible among creditors, id. rule as to personal earnings of, 118. when a clergyman, 119. when an officer in army, &c., 120. letters of, 130. undischarged, obtaining credit to the extent of 20?., 131. disqualifications of peer when, ib. of member of parliament, ib. of mayor, alderman, councillor, &c. ib., 132. surplus property of, after payment of debts, 132. appeal of, against decision of trustee, 142. duties of triistee in relation to property of, 143. dischai'ge of, 149 ct seq. when married woman may be made, 153. infant cannot be made, ib. foreigner can be made, ib. Bankruptcy, courts having jurisdiction in, 89. petitions where presented, when debtor not resident in England, ib. when creditor unable to ascertain debtor's residence, ib. rules as to motions in, 91. procedure at commencement of, 93. acts of, 95 c( scq. effects of, 116 ct scq. of master of articled clerk, &c., 131. what claims may be proved in, 138. Bankruptcy, Court of, powers of, 91. Bankruptcy Estates Accoimt, trustee must pay money into, 143. Bankruptcy, Law of, changes by Act of 1883. .89. Bankruptcy Notice, what is, 98. witliin what time served, ib. how served, 99. course when debtor has counter-claim, 100. Bill of Exchange, when creditor holding, may vote, 114. proof by holder of, 142. where both drawer and acceptor are insolvent, 154. doctrine of i'.r jUffr/c^ Waring, ib. Bill of Sale, when it amounts to act of bankruptcj-, 97. N. Z 338 INDEX. B Bankruptcy — continued. BoAKD of Trade, orderb of, how (.'nforccd, 90. appeals from, within what time made, 93. appointment, dec. of receivers, ]02. special manager mu-st account to, 103. duty of, as to first meeting of creditors, lOG. acts instead of committee of inspection, 111. application to, as to unclaimed dividend, 133. control over trustee, 142. duty of trustee as to reports to, 143. powers when there is no committee of inspection, 145. release of trustee by. 147. Beeacii of trust, bankrupt not released from debts incun'od by, 152. ECCLESIASTICAL LAW. BlI^UJLE, what is, 172. duties of, ib. how appomted, ih. dismissal of, ih. Benefice, grounds for refusing institution to, 173. conditions as to incimibent holding more than one, 180. how adjacent benefices may be united, 181. duty of holder as to residence, ih. Bishop, how appomted, 1G6. powers and duties of, ib. suffragan, what is, 107. grounds on which, may refuse to institute clerk, 172. appeal from court of, 188. consent of, to proceedings vmdcr Church Discipline Act, 193. appeal from, under Church Discipline Act, 194. BuELiX, common law right of, 165. of burial service, ih. service under Burials Act, ib. ADMIRALTY. Bail, to prevent arrest of ship, 222. amount of, 223. how taken, ih. course of party proceeding before liegistrnr, ih. before Commissioner, il. Bottomry Bond, lien for, 200. rcfiuisiti-s of, 217. ])rtfauti C ;j39 CRIMINAL LAW. Bail, before magistrates, 298. Bailee, larceny by, 271. Banker, embezzlement by, 279. Baeeatey, what is, 247. Betting in public, punishment for, 258. Iceeping gaming house, ib. BiGAinr, when second marriage not felonious, 257. prohibited degree, ih. defence, ib. offence and punishment, ib. Beeach of contract by workmen, 255. BUEGLAEY, what is, 283. the time, ib. the place, ib. dwelling-house, ib. residence, ib. manner, ib. breaking, ib. punishment, ib. distinction between house-breaking and burglary, ib. sacrilege, 284. summary jui'isdiction, 322. PROBATE. " C^teeoeum bonorum " grant, 34. Caveats, detinition, 44. how long in force, ib. warning a, ib. when grant is opposed, ib. in what office entered, 45. "Cessate" grant, 34. Citation in probate matters, definition, 42. example of, 43. when executor holds a will but neglects to prove it, ib. personal service, when necessaiy, ib. steps previous to, ib. from what office issued, ib. how obtained, ib. how served, ib. general rules as to, 45. when party may proceed after service of, ib. Claim, Statement of, 50. when plaintiff disputes interest of defendant, ib. 7.2 •MO INDEX. —C Probate — t^oitiimed. CosQiox form business, meaning of, 2. jurisdiction of district registry, %h. County Court, 4. what property subject-matter of Probate Division in, 3. CoxFiEJiATiox, Scotch, 19. Contentious, when probate business is, 45. Costs out of the estate, -when allowed, 52. when next of kin unsuccessfully oppose a will, ih. of executor propounding wiU when testator insane, 53. County Court, jurisdiction of, in non- contentious probate matters, 4. in contentious, lb. Couet of Probate Act, 1857, sect. 73. .29. Ceeditoe, when entitled to take out administration, 24. on what condition allowed, 2C. Ceoa\"n, rights of, as to taking administration, 27. in cases of bastards, 26. Custody of wills of li^'ing persons, 3. DIVORCE. Cameea, suits when heard in, 87. CniLDEEN, custody of, 73. Citation in divorce proceedings, must be served personally, 76. definition, 77. when substituted service allowed, ib. time within which appearance must be entered to, ih. Claiji, Statement of, 50. Collusion, what is, 69. CojQiON license, 62. Condonation, what is, 68. proof necessary, ih. 18 conditional, ih. CoNFEONTATiON, ordcr for, 81, Conjugal rights, restitution of, 66. how decree enforced, ih. Connivance, what is, 67. Co-BESPONDENT, 85. Ceuelty, definition of, 65. Custody of children, 73. l.NDEX. — C 341 BANKRUPTCY. CuAMBEES, matters that may bo determined in, 91. Clergyman, when bankrupt, 119. CoMJiiTTEE of inspection, when appointed, 110. how appointed, ib. general rules relating- to, ih. substitute for, HI, 145. powers of trustee with permission of, 1-16. may not give general permission, ih. COMPAXT, shareholder in, becoming banki'upt, 141. trustee's right to set off, 142. receiving order cannot be made against, 153. Composition, Ibb et seq. when creditors may resolve upon, 155. when binding, ib. how creditor may assent, &c. to, ib. approval of, by Coiu-t, ib. effect of acceptance of, 15G. provisions of, how enforced, ib. course when instalments due under, not paid, 157. annulment of, ib. effect on debtor's property of approval of, ib. if no trustee appointed, trustee acts in case of, ib. security by trustee under, ib. how debts proved in, ib. accei^tance of creditors when debtor adjudicated bankruj^t, ib. effect of Court's approval of, 158. CoNSiDEEATiON, Bankruptcy Court may inquire into, 94. CONVETAXCE, for benefit of creditors generally, effect of, 96. fraudulent, ib. when fraudulent under 13 Eliz. c. 5, ib. bankruptcy law, ib. Copyholds, trustee's right to, 120. CoEPOEATiON, receiving order cannot be made against, 153. County Court, jurisdiction of, in bankruptcy, 90, 91. course where judgment obtained in, where debtor does not owe more than .507., IGO. may sometimes administer estate, ib. property of debtor, when protected from execution on judg- ment of, 161. Ceeditor, requisites of debt, 94. difference between Act of 1883 and 1869 as to, ib. when secured, may petition, 95. when entitled to vote at meeting, 114. holding- bill of exchange, ib. of firm i^roving against separate estate, 115. Ceeditoes, several petitioning may join, 94. ;j4'J l.NDEX. C ECCLESIASTICAL LAW. Ca>ON Law, dofiiiition, 103. pcculiiir to thi.s cinmtry, ib. biudiiig: ottect of, in Eujrland, 164. resignation of order iindtT, 1G9. Canons, how appointed, Sec, 167. Chatels, classification of, 164. (a) parochial, ib. (b) of ease, ib. (c) free, ib. (d) private, ib. (e) district, 165. (f) proprietary, tV*. Chaptee, ai)pointment of bishops, kc, by, 166. what is, 167. Chasuble, use of, 184. contempt of Court in ecclesiastical matters, 192, 103. Chtjbch, definition of, 104. officers of , 166 — 172. freehold, in whom vested, 177. whose duty to repair, ib. pro\'ision as to rebuilding parish church, 182. lay rectors, rights in, ib. services, how regulated, 183. CntmcH Building Acts, 165. Chuech Discipline Act, 193 — 19.5. consent of bishop to proceedings, 193. first step in proceedings undtn-, ib. commission under, 194. report of commissioners, ib. course of bishop on receipt of report, ib. appeals under, ib. within what time suits must be commenced under, 195. Chuecii Rates, collection of, 171. payment of, not compulsory, ib. Chuecuwardens, functions of, 170. how chosen, ib. when chosen, ib. duties of, ib. have property in goods, ttc, ib. care of furniture of diurch, &c., ib. rights of, in parish cliurih, 171. Citation, what is, in ecclesiastical law, 189. contents of, ib. Civil suits, how commenced, 189. INDEX. C '343 Ecclesiastical Law — conluiucd. Cleeqyjien, privileges of, 168. disabilities of, ib. cannot trade, ih. penalties for trading, 169. resignation of orders by, ib. in case of ilhiess, ib. punishment for doctrines contrary to Thirty-nine articles, 183. CoMMtTNiON Table, character and nature of, 185. CoNFiEMATOEY Faculty, what is, 186. Conge d'elire, 16G, 167. CoNSiSTOEY Courts, 188. Constitutions, legatine and provincial, 163. Convocation, summoned by archbishop, 166. CouET of Arches, jurisdiction of, 187. who is judge of the, 188. Ceiminal suits, how conunenced, 189. Cetjcifix, when use illegal, 185. Cup and Paten, elevation of, 185. ADMIRALTY. Caveat, against warrant of arrest, 222. arrest of ship notwithstanding, ib. person entering, how compelled to give security for costs, ib. how long in force, 224, 225. payment book, 224. release book, ib. Claim, Statement of, time for delivering, 226. Collision, Lord Stowell's rules as to, 208. where ship has infringed regidations, ib. where ship sheers off without rendering any assistance, ib. rule where both vessels at fault, 209. where there is contributory negligence, 211. preliminary act in cases of, 226. CONTEACT, by what law governed, 200. between owner or master and seaman, rescinding of, 214. Costs, security for, by person entering caveat, 222. general rule as to, in admiralty, 229. County Court, jurisdiction of, in admiralty, 230. appeal from, ib., 231. CouETS having admiralty jurisdiction, 232. 344 INDKX. — C CRIMINAL LAW. t'ATTLE, malicious iiijurj' to, 288. Centkal Criminal Court, jurisdiction, 293. Ceetiorari, definition, 30.5. how obtained, ib. CiLiUJPEETY and Maintenance, definition of, 248. Child .stealing', 2G5. Clerk, larceny by, 274. embezzlement by, 278. misappropriation by, 279. Coin, uttering counterfeit, 243. having coimterfcit in posses.sion, 244. how suspected coin tested, il>. Coinage, offences against, 243. Common assault, 265. Common nuisance, 258. Constable, aiding escape from, 245. executing warrant, 295. warrant, 29G. Conspiracy, husband and wife, 237. definition of, 25(5. when merged into felony, ib. combination necessary', ih. how punished, 257. CONSTBUCnvE treason, definition of, 241. Coroner's Court, 294. Corporations may be criminally prosecuted, 237. Costs, when defendant or plaintiff ordered to pay, 310. Counterfeit coin, uttering, 242. having in possession, 244. Court, contempt of, 249. Crime, attempt to commit, how defined, 235. crimes at common law, ib. offence contrasted with crime, 234. where there may be accessories, 238. Criminal crises, onus of proof, 311. confessions, ib. INDEX -C, D 345 Criminal Jjaw—contii/ncd. CiUMiNAL iuforniatiou, what is, 302. ex officio, ib. Crown Office, ib. Ceiminals, extradition, 327. Ceown Cases Reserved, Coiu-t for, 318. how constituted, ib. Cetteliy to animals, 328. Custody, escape from, offence of, 245. D. PROBATE. De bonis non, administration, 32. Death, evidence of, to obtain probate, 2. Debts, rule as to deduction of, for probate, 40. Default in filing-, 50. Desteoying, when wUl revoked by, 11. DiSTEicT Registrar, course of, when doubtful as to granting probate, 2. ° DiSTEiCT Registry, jui'isdiction of, in common form business, 2. in contentious business, ib. not obligatory to apply to, 3. Domicile, definition of, foiin and construction of wills of personal estate, made abroad, 8. notation of, 19. Double probate, 36. Durante minore cetate, administration, 30. dementid, 31. absentia, 32. DIVORCE. Damages against adulterer, 7 1 . Deceee Nisi, how made absolute, 86. when parties may marry again after, 87. course of person showing cause against, 88. Defence, 67. Delay, valid excuse for, in suing for divorce, 70. Delictum x^lace, effect on jurisdiction in divorce, 57. 346 INDKX. Tj Divorce — continued. Deseetiox, what amounts to, under Divorce Acts, 65. DissoLmox, suit for, aprainst wife become insane, o9. absolute defences to, 07. discretionary defences to, ib. DiVOECE, groimds for, G4 — 72. on husband's petition, 64. on wife's petition, iO. defences to suit for, 67. practice, 76 rt seq. proceedings, how commenced, 70. course when alleged adulterer unknown, ili. when sued for in forma pauperis, 77. proceedings for, before whom tried, 79. trial, how questions of fact presented to jury, ib. jurisdiction in, -5 5 — GO. validity of, in England when granted abroad, 58. DoinciLE, definition of, 55. various kinds of, ib. importance of, in divorce, ib. loss of, 56. place of, effect on jurisdiction in divorce, 57. distinguished from allegiance, ib. law of, regulates capacity of parties to marry, ib. BANKRUPTCY. Death of debtor, effect of, in bankruptcy proceedings, 153. Debtoe, can only be made bankrupt when domiciled or resident in England, 01. presentation of petition bj', 97. duties of official receiver in relation to, 102. public examination of, when held, 105. failing to attend public examination, ib. who may question debtor at public examination, ib. duty of, as to statement of affairs, 106. when he may be adjudicated bankrupt, 107. reasons for arrest of, 111. duties of, after receiving order, 123. effect of death of, in bankruptcy proceedings, 153. default by, in paying instalment ordered by County Court, 160. bankruptcy of, when i>rotected from County Court judg- ment, 161. Debtoes Act, imprisonment under sect. 5 of, 158. Debts, how proved, 112. when proved, ib. costs of proving, ib. affidavit as to proof of, ib. duties of receiver as to jiruuf nf, ib. of trustee, ib. rejection of proof, ib. how objected to, 1 13. INDEX. D 347 Bankrvi-ptcy— continued. Debts — cont'uiucd. proof by secured creditors, 113 value of contingent, how ascertained, 139. not provable in bankruptcy, ib. meaning of preferential, 140. from what bankrupt is not released by order of dischar"-e 152 incurred by " fraud or breach of trust," ih. "^ ' how proved in composition, 157. Deceased insolvent, when estate of, maybe administered in bank- ruptcy, 161. Declaeation of insolvency, requisites of, 98. Depaetino out of England, when act of bankruptcy, 95. Depaetino from dwelling-house, 96. DiscHAEGE of bankrupt, when it may be ap^Dlied for, 149. considerations on application for, ib. when refused or suspended, ib. effect of making settlements to defeat creditors, 150. coui'se on applying for, 151. who may be heard on application for, ib. courtmay require bankrupt to submit to judgment as a con- dition for, ib. effect of, in foreign banki-uptcy, 152. DisCHAEGED bankrupt, duties of, 151. from what debts not released, 152. Disclaimed property, persons interested in, how protected, 123. Disclaimer, by trustee of purchase agreement, 118. of land with onerous covenants, 121. of shares in companies, ib. of unsaleable property, ib. how made, ih. within what time made, ib., 122. of lease, 122. effect of, of lease, ib. DiscovEEY of debtor's property, powers of Court as to, 125. Dividends, duty of trustee before declaring final, 132. position of creditor who has not proved 'before declaration of, ib. unclaimed, com\se of trustee as to, 133. how payment obtained by person entitled, ib. when to be declared, ib. when creditors reside at a distance, 134. notice by trustee of declaration of, ib. duty of trustee before declaring, ib. right of judgment creditor of firm to, out of separate di-o- perty, ib. ^ '■ declaration of, of joint and separate properties ib no action against trustee for, ib. ' ' payment of, how enforced, 135. courses of secured creditor desiring to share, ih. :U8 iM.Kx.— D ECCLESIASTICAL LAW. Djlxs, legal position of, and Cliaptcr, 167. liuw elected, ib. rural, what is, 168. of -:\a-clics, 188. Deceeb til's et modis, meaning of, 189. Degeabatiox, 101. Depeivatiox, 191, 193. Diocesan Courts, jurisdiction of, 188. Distress for tithe rent-charge, 174. Divisions of England, ecclesiastical, 161. ADMIRALTY. Damage, lien for, 200, 211. jurisdiction of Admiralty in, 207. b\- collision between Britisli ships in foreign waters, ib. foreign ships in foreign waters, ib. power to arrest foreign ship for, ib. double remedy for, 208. (a) in rem against ship, ib. (b) in personam against person who caased damage, ib. limitation of owner's liability for, 209. how claimed, ib. to goods, jurisdiction of Admiralty in case of, 210. Damages, amount of, for injury, &c. to goods, 211. arising from collision, how determined, ib. how assessed, 228. Defence, delivery of, 226. Deviation, effect of, to save (a) life, 205. (b) projicrty, ib. DiSBTJESESTENTS, meaning of term, 213. DiSTEiCT Registry, Admiralty proceedings in, 229. CRIMINAL LAW. DiiiJTORS Act, (•rimes under, 254. by bankrupt under, ib. Demukrer, indictment, 307. Depositions at trial, 312. Distress, fraudulent removal of goods, 329. Doo, larceny of, 2G9. malicious injury to, 288. INDEX. — D, E 349 Criminal IaSlw— continued. Driving, furious, 259. Drunkenness no excuse for crime, 23G. D WELLING - HOUSE , breaking; and entering, 283. burglary in, ib. constructive breaking, ib. intent, ib. distinction between house-breaking and burglary, 284 larceny in, ib. E. PROBATE. EXECUTOE, according to the tenor, 35. may be nominated by person authorized by testator, ib of executor, ib. one can prove without notice to others, ib. to what period he may renounce, 36. renouncing in one character, ib. who has not proved, intermeddUng, may be cited to take probate, 37. duties of, as to inventories, ib. ,. , .,T^^'^^ personalty sworn under correct amount, 41 liabihty of, for legacy duty, 42. neglecting to prove will may be cited, 43. EXECUTOES, oath of, 15. taking out double probate, 36. affidavits by, ib. EXECUTEIX, married woman, may make will, 7. position of, 37. DIVORCE. Eaenings, protection of wife's, 59. BANKRUPTCY. Earnings of banki-upt, 118. Estate tail, power of trustee over, 118. Evidence, of adjudication in bankruptcy, 108. of proceedings in bankruptcy, 154. Execution, when levied by seizure and sale, is act of bankruptcy, 97, 98. duties of sheriff when sum exceeds 20^., 98, 99. after notice of receiving order, 117. when complete, ib. when sheriff may sell goods seized by private contract, 1G2. 3l)l> INDEX. E ECCLESIASTICAL LAW. Eastwabd position, how dcliueJ, 184. EccxESLVSTicAi Courts, what are ordinary, 186. provincial courts, list of, 187. power of, to commit for contempt, 193. EccxESiASTiCAL DiWsions of England, 164. Ecclesiastical Law, nature and soiu'ces of, 163 — 165. of what consists, 163. value of usage, Sec. in, ib. ExcoinnJN'iCATiox, punishment of, 191. EXEJIPTIOX, how licenses of, may be granted hy bishop, 181. ADMIRALTY. Employitext of ship by majority, 216. ExTixcTiox of lien, 201. CRIMINAL LAW. ElTBEZZLElTEXT, definition of, 277. by clerks or servants, 278. specific sum to be proved, ib. misappropriation by clerk, 279. by servant, ib. jiunishment for, ib. charges in indictment, ib. falsification of accounts, ib. hy bankers, merchant, &c., ib. by factor, 280. by trustee, ib. by officers of companies, ib. ENLiSTaiENT Act (Foreign), object of, 243. Entey, forcible, 253. Eeeor, definition, 317. to -whom lies, ib. how obtained, ib. appeals, ib. Escape, distinctions of, 244. Evidence, treason, 241. as to perjury, 247. deceased person's, 313. when wife ma}' give evidence' in favour of husband, &:c., 308. ExTRAurriox of criminals, 327. INDEX. -t 351 F. PROBATE. "Foot or end," meaning of signature at, 9. Foreign Conrts, decisions of, when recognized by English Courts as to validity of foreign wills, 8. when grants of, recognized, 18. Foreign law, how proved, 18. Foreign wills, decisions of foreign Courts as to, 8. BANKRUPTCY. Firm, creditor of, holding separate security, 135. Firms, proof against two, with common partner, 136. Foreigner, when can be made bankrupt, 153. Fraud, bankrupt not released from debts incurred by, 152. Friendly society, position of , when officer becomes bankrupt, 140. ECCLESIASTICAL LAW. Faculties, general principles of, 185. Faculty, what is, 185. how revoked, 186. Flowers on communion table, 185. Freehold, of glebe, &c., 172. of church, in whom vested, 177. ADMIRALTY. Flag, law of, 200. Foreign ship, power to arrest for damage, 207. foreign seaman on board, jurisdiction of Court as to wages, 212. Forfeiture of sliip, 219. Freight, rights of mortgagee in respect of, earned since date of mortgage, 217. CRIMINAL LAW. Factor, embezzlement by, 280. False pretences, distinguished from larceny, 281. obtaining goods by, ib. must be of existing fact, il). bill of sale, ib. how punishable, 282. indictment for, tb. inducing execution of valuable securities, ib. transferring stock, ib. in offering sei'vices as servant, ih. 352 INDEX. — F, G Criminal Law — con tinned. False swearing, when liable for perjury, 217. Feloxies, distiuguished from misdemeanor, 233. fompounding, 248. .some oifences of, ib. punishment for, 314. after previous con\-iction, xh. Felo^jy, origin of tlie tenn, 234. misprision of, 249. Felony treason, meaning of, 241. Food, adulterating, 258. FOECIBLE entry, 253. FoBEiQN Enustment Act, objcct of, 243. FOEGEEY, definition of, 284. by fictitious name, ib. intent to defraud, ib. ■what amounts to, 285. indictment for, ib. pecond count for, ib. felonious uttering, ib. •what must be proved on indictment, ib. bank notes, ib. punishment for, ib. on separate occasions, ib. Fueious dri\-ing, 259. G. BANKRUPTCY. Goodwill of business, sale of bankrupt's, 130. ECCLESIASTICAL LAW. Glebe laud, duties of incumbent as to, 177. freehold of, 172. CRIMINAL LAW. Ga3ie, offences against game laws, 259. Gibl, abducting with carnal mtent, 2G4. imder age of sixteen, ib. search warrant, 296. Goods, restitution of stolen, 31G. fraudulent removal of, to avoid distress, 329. GUNl'O^VDKIt, causing grievous bodily hann b}-, 207. placing iu vesuels, kc, with intent, ib. INDEX. — H, I -353 H. BANKRUPTCY. Half-pay, right of creditors to, 120. CRIMINAL LAW. High Court, special case, 327. Homicide, 260. definition, ib. when justifiable, ib. when excusable, ib. former penalty for suicide, ib felonious homicide, 261. murder, ib. indictment for murder, ib. manslaughter, ib., 263. voluntary manslaughter, 261. examples of, in voluntary manslaughter, 262. illustrations of, ib. murder whilst doing another act, ib. murder of policeman, 263. by poUceman, ib. by husband of wife, 262. by poison, 263. attempt to murder, ib. House of Lords, impeachment, 291. indictment in, ib. Husband and Wife, cannot be convicted of conspiracy, 236. wife stealing husband's goods, 271. husband feloniously receiving goods stolen by wife, ib. husband refusing to support wife, 339. I. PROBATE. Incoepoeation of papers by reference in will, 13. Indoesement of writ in probate cases, 48. Inteeest cause, meaning of, 49. Inteelineations in will, presumption as to, 10. Inteemeddling, executor cannot renounce after, 36. by executor who has not proved, ib. Inteeeogatoeies as to possession of testamentary documents, 21. Inteevention, who may intervene in probate actions, 48, 49. Inventoeies, duties of executor or administrator as to, 37. Ieish grant of probate, &c., when recognised, 20. N. A A 354 INDEX. I DIVORCE. IDE^mFICATIO^' by being confronted with witness, 82. Intervention, different kinds of, 83. liovv leave obtained, 84. BANKRUPTCY. Income, right of creditors to bankrupt's, 120. Insolvency, requisites of declaration of, 98. Insolvent, deceased, when estate may be administered in bank- ruptcy, 161, 162. ECCLESIASTICAL LAW. iNCtllBENT, duties of, as to parsonage house and chancel, 177. duties of — (1) glebe land ; (2) opening mines ; (3) cutting timber, ib. repairs by, under the Dilapidations Act, ib. right of widow of, to reside in house annexed to benefice, 178. liability of representatives of, for dilapidations, ib. what insurance must be effected by, 179. what leases may be made by, ib. conditions as to exchange of benefices by, ib. as to holding more than one benefice by, 180. Induction, what is meant by, 177. Institution, grounds on which bishop may refuse, 173. meaning of, 176. ADMIRALTY. Identification, doctrine of, 211. Inteevention in Admiralty, by persons not parties to action, 229. by mortgagee, ib. by trustee of bankrupt, ib. CRIMINAL LAW. Ionohance of law no excuse, 237. Indictment, different offences in different counts, 274, 301. for forgery, 285. certiorari, 292. what is meant by, 299. example of, ib. description of property, 300. rule as to defects in, ib. more than one offence, ib. exceptions, 301. counts for pre\'ious convictions, ib. vexatious, 303. previous conviction, 313. Infancy, when a defence to a criminal prosecution, 230. INDEX. I, J 355 Criminal liaw— continued. Insanity, an exemption from criminal liability, 235. medical evidence, ib. finding by jury, ili. how ordered by Court after acquittal, ib. J. PROBATE. JUEISDICTION, probate, 1 — 6, 46. of Ecclesiastical Court, ib. of County Court, in non- contentious probate matter, 4. in contentious, ib. DIVORCE. Jactitation of marriage, suit for, 67. defences to, 70. Judgments in divorce, of what kinds, 82. Judicial separation, by magistrates, 59. grounds for, 64 — 72. defences to suit for, 71. reversal of decree for, 70. JxmiSDicTiON in divorce, 55—60. elements to be considered in questions as to, 57. objection to, by respondent or co-respondent, 58, 78. BANKRUPTCY. Judgment, when final, 98, 99. is not conclusive evidence of provable debt, 140. Judgment debtor, committal of, 158. when receiving order may be made instead, 159. Judgment debtor's simimons, meaning of, 158. JUMSDICTION, Courts having, in banki-uptcy, 89. of bankruptcy registrars, 90. ECCLESIASTICAL LAW. JuEiSDicTioN of diocesan cotuts, 188. ADMIRALTY. JUEISDICTION, over high seas, 199. criminal, of English Courts, 200. of Admiralty in towage, 206. damage, 210. wages, 212. necessaries, 214. possession suits, 216. morta'ages, 217. A a2 356 ixDEX.— J, K, L Adzairalty — con t in ued. JtTEiSDicnojJ — contin ued. of inferior Courts in Admiralty, 230—232. of County Court in Admiralty, 230. of justices of the peace in Admiralty, 231. Courts having Admiralty, 232. Justices of the peace, jurisdiction in Admiralty, 231. appeal from, in salvage cases, 232. CRIMINAL LAW. JuDOiiHNT, arrest of, 313. JuEiSDicTiON of Courts, House of Lords, 291. impeachment in House of Lords, ib. indictment in House of Lords, ib. JUBT, challenges to, 307. peremptory challenges, ib. iitedictate Hikjiicc, 308. special, when allowed, ib. disagreement, 313. JuEY, Grand, duties of, 302. indictments before, 303. Justice of the peace, warrant, 295. backing warrant, ib. K. PROBATE. Kixgsdown's, Loed, Act (24 & 25 Vict. c. 114), 7, ECCLESIASTICAL LAW. Kissing books of services, rules as to, 185. PROBATE. Legacy duty, exemption from, 42. liability of executor for, ib. Legitimacy by subsequent marriage, 5. Limited grants, 30. DIVORCE. Legitimacy, declaration of, 60. License, common, 61. special, ib. registrar's, ib. procuration of, by fraud, G2. Lunatic, wife of, committing adultery, 59. INDEX. _L 357 BANKRUPTCY. Landloed, rights of, as to rent, 128, may distrain, ib. Lettees of bankrupt may be re-directed, 130. Liability, definition of, under Bankruptcy Act, 139. ECCLESIASTICAL LAW. Lay rector, rights of, in respect to church, 182. Laymen, how tithes belong to, 174. Leoatine Constitutions, 163. Lettees of request, what are, 187. LiBEi, plaintiff's, what is, 190. LiaHTED candles on communion table, 184. ADMIRALTY. Liability, limitation of owner's, 209. exemption from, where pilot on board, 210. Lien, what is maritime, 200. claims to, ib. extent of, on ship, 201. effect of prior, on sale of ship, ib. how extinguished or lost, ib. how enforced, ib. against ship of foreign government, ib. extends to debt, costs, and interest, ib. for salvage, 205. for damage, 211. for wages, 213. for necessaries, 215. Liens, in what order paid, 201. marshaUing of assets in cases of, 202. Limitation, of owner's liability for damage, 209. how claimed, ib. Log of ship, whether admissible in evidence, 227. CRIMINAL LAW. Landloed and tenant, fraudulently removing goods, 328. Laeceny, definition, 268. various kinds, ib. at common law, ib. what animals subject of, ib. offences of cutting, severing, &c., ib. from mine, ih. 358 iNDKx. L, M Criminal Law — contiiuud. Laecexy — toil 1 1)1 lied. trees and shrubs, 269. of will, ib. of doj;, ib. two kinds of, ih. distinguished from false pretences, ib. by intent, 270. by mistake, ib. by bailee, ib. of furuitui-e under hire system, 271. of partner, ib. of husband's goods by wife, ib. husband receiving goods stolen by wife, t*. person stealing his own goods, ib. of things found, 272. by mistake, ib. inciting servant to commit, ib.^ " asportation" meaning of, 273. with intent, illustration of, ib. by false representations, ib. illustrations of, ib. conversion, ib. improperly taking another's goods, ib. indictment, 274. indictment for, and embezzlement, ib. simple larceny, ib. by tenant or lodger, ib. by clerk or servant, ib. compound (examples of), ib. robbeiy, 275. of letters, ib. in relation to post office, ib. punishment for, after conviction for felony, 314. summary jurisdiction in, 322. Law, ignorance of, no excuse, 237. Lettees, stealing, 275. Libel, how prosecuted, 251. what necessary on indictment, ib. when for public benefit, 252. what are questions for jury, ib. punishment, ib. rule as to costs, ib. threatening to publi.sh, in order to extort, ib. how altered by Act 44 k 45 Vict. c. 60. .253. summary jurisdiction, 322. Loboeb, larceny by, 274. M. PROBATE. ]Ma£EIED woman, executrix, 37. administratrix, ib. liability for breaches of trust, ib. devastavit, ib. of husband for breaches of tmst, ib. devastavit, ib. INDEX. M 359 Probate — continued. Motion, application for grant of probate or administration on, o2. Motions, chief rules as to, in probate matters, 53. DIVORCE. Magistrates, judicial separation by, 60. maintenance ordered by, ib. Maintenance of wife when deserted, 60. Maeeiaqe, effect of lunacy on, 64. jactitation of, 67. how proved in divorce proceedings, 82. cohabitation is evidence of, ib. declaration of validity of, 60. requisites of vahd, 61 — 64. induced by fraud, when void, 61. of British subjects abroad, 63. place of, effect on jui-isdiction in divorce, 57. form of, must be in accordance with place where contracted, 58. Maeeiages, where they may be celebrated, 63. Maeet, when parties may, after decree nisi, 87. MoEMON, divorce of, 57. Motions, chief rules as to, in divorce matters, 81. BANKRUPTCY. Maeeied woman, position of, lending to husband, 138. when may be made bankrupt, 153. Meeting, when fii-st meeting of creditors held, 106. duty of receiver as to first, ib. who entitled to vote at, 114. power of chairman as to proofs, ib. when trustee may summon, 115. for electing trustee, 144. Mortgagee, is secui'ed creditor, 129. com-ses open to, on mortgagor's bankruptcy, ib. api)lication by, in Bankruptcy Court, for sale, ib., 130. Motions in banki-uptcy, rules as to, 91, 92. Mutual credits, debts, &c., set off, 141. ECCLESIASTICAL LAW. Mixed tithes, 174. Modus, what is, 174. 360 iNnEX.— M Ecclesiastical Law — contuiued. Monition, what is, 190. how obtained, ib. peuulty of, 191. MOXOIENT, in church, what must be done before setting up, 186. •who has tlie right to allow erection of, \b. MoBTUABiES, what are, 181. ADMIRALTY. MAKiTiiiE lien [aee Lien'). duties of, -220. deputies of, ih. certificate of, as to value of property, 223. MAEsnAJLLiNO of Essets in cases of liens, 202. Mastee, removal of, 219. power of Court to remove, ib. MoETOAOEE, rights of, as to freight earned since date of mort- gage, 217. MOETOAGES, jurisdiction of admiralty as to, 217. effect of, on ownership of a ship, ib. MoETGAGOE, rights of, as to hiring out ship, 217. CRIMINAL LAW. MAOISTIiATE, refusal to give evidence before, 297. proceedings, ib. on summary con\'ictionB, 324. evidence, 298. powers, ib. bail, ib. discretion, ib. . when bound to accept bail, 299. remand, ib. committal, ib. whipping, 322. common assault and batteries, 323. where no jurisdiction in assault, ib. wilful injuries to property, ib. restitution of goods stolen, ib. limit of punishment, 324. fines, 325. hearing of case, ih. enforcing payment, ib. cumulative sentences, ib. costs, ib. appeal, 326. to quarter ses-sions, ib. Maintenance and Champerty, definition of, 248. INDEX.— M, N 361 Criminal liaw— continued. Malice, -what is meant by the term, 234. Malicious injury to property, offences connected with, 287. manufactures, ib. machinery, ib. mines, ib. vessels, ib. to cattle, 288. to dogs, ib. beast, &c., ib. how punishable, ib. to trees, &c., ib. proof of actual malice not necessary, ib. Manslaughter, voluntary, 261. how punishable, 263. Maeeied women, crimes committed by, 237. Mine, stealing from, 269. malicious injury to, 287. MiSDEMEANOES distinguished from felonies, 233. MisPEisiON of treason, meaning of, 241. MUEDEE, 261. indictment for, ib. when presumed, 262. of policeman, ib. by policeman, ib. attempt to, 263. N. PROBATE. Next of kin, order in which, entitled to administration, 24 meaning of, in probate matters, 27. may caU upon personal representative for inventory, 37. NOTAEY, duties of, 6. in foreign language, ib. Notation of domicile, 19. Notice of trial in Probate Division, 51. DIVORCE. Nullity of marriage, grounds for petition for, 66. who may present petition, ib. within what time suit must be brought, ib. BANKRUPTCY. Notice, of act of bankruptcy, what is, 117. by assignee of trade debts, 124. 362 iNDKx. N, ADMIRALTY. Necessakies, adniiraltj' jurisdiction as tx), 214. how defiied, 215. proof in claim for, ib. CRIMINAL LAW. New trial, iu criminal cases, 316. grounds for new trial, ib. Nuisance, common, definition of, 258. O. PROBATE. Oatu for administration when brother takes, 25. Obliteeations in wills, rule as to, 10. " OiiNiA rite esse acta prsesumimtur " applied to wills, 10. BANKRUPTCY. Officiai Receiver. See Receivee. Open Court, matters that must be determined in, 90. application for bankrupt's discharge, 149. ECCLESIASTICAL LAW. Oedinaev, meaning of term, 188. Oedikation, declaration before, 168. meaning of "title " to, ib. CRIMINAL LAW. Oatus, unlawful, 242. false, when amounting to perjury, 247. Obtaining goods by false representations, 273. illustrations of, 273, 281. Offence of uttering counterfeit coin, 243. of having counterfeit coin in possession, 244. Offences against coinage, 243. compounding, 248. Officke, obstructing, in execution of duty, 246. Officees of companies, embezzlement by, 280. INDEX. P 363 p. PROBATE. Paeol evidence of contents of lost will, 17. Payment by debtor before revocation of probate, &c., 21. Penalty, reduction of, on administration bond, 2S. Pendente lite, administration, 31. Peeishable property, administrator appointed to preserve, 33. Peesonal projjerty, in England, is subject-matter of Probate, &c. Division, 3. of iiitest ito before administration granted, 3. law governing succession to, 5. Peesons interested in estate, how bound, 48. Petition, act on, 51. PowEE of appointment, when general probate duty payable, 39. Peesumption of survivorship, 27. Peize-money, will of seamen as to, 7." Peobate, of will in possession of person residing abroad, 18. under power of attorney, ib. grants of, of foreign courts, when recognized, ih. how soon granted, ib. effect, when not taken out for more than three years from death, ib. effect of English grant, on Scotch personalty, 19. in Ireland, 20. Irish grant of, when recognized, ib. in " fac simile,'''' ib. position of debtor, when grant revoked, 21. penalty for not taking out, 21, 42. how grant may be revoked, 22. grounds for revoking, 46, 47. limited gi-ants of, 30. in duration, ib. to a particular jiroperty, ib., 32. to a particular object, ib. when double, 36. when imnecessary, 38. no stamp duty now payable on, 39. effect of in solemn form, 47. who may oppose grant of, 48. in solemn form binds heir-at-law, &c., 49. second grants of, 3. two kinds of, 14. in common form, ib. in solemn form, ib. what is necessary to entitle will to, ib. of will of realty, ib. of blind, or illiterate person, 16. rule as to admitting interhneations and alterations to, ib. Peobate business, when contentious, 45. Peobate Court Act, 1857, s. 73. ,29. 364 INDKX.— P Probate — continued. Probate Division, practice in, how regulated, 47. may remit cause to County Court, 3. may appoint receiver, 5. Pbobate duty. in case of seaman's ■wages, 38. on deposits in savings banks, ib. in friendly societies, &c., ib. now payable on affidavit for Inland Revenue, 39. exemptions from ordinary amount of, ib. where personal estate does not exceed, 300/., ib. exceeds 100/., ib. on what property payable, 39, 41. now payable after deduction of debts, 40. payable on property disposed of under general power of appointment, ib. not payable on trust property, ib. Peoduction, order for, of testamentary papers, 52. DIVORCE. Pacpeeis, divorce in forma, 11. Petitiox for divorce, 76. must contain acts of adultery, &c., 77. effect of death of petitioner, 8 1 . when respondent proves adultery, &c. of petitioner, 84. Petitioneb for divorce, kc, effect of death of, 81 Pleadinos after answer to divorce petition, 78. Peohibited degrees, what are, 64. Peotection order, 59. BANKRUPTCY. PAELiAiiENT, disqualification of member of, when bankrupt, 132. Paetnee, creditor of firm with separate security on estate of, 135. proof of partnership estate against separate estate of, 136. by partner against separate estate of, ib. against two several firms with common, ib. in case of fraud by, 137. breach of trust by, ib. Plsi!5BBS, application of joint and separate property of bankrupt, 136. PABTNEESinr, bankruptcy proceedings by or against, 153. action by trustee of bankrupt partner as debtors of, 164. Past debt, conveyance of whole of debtor's property in con- sideration of, 96. Pkeb, disqualification when bankrupt, 131. Pension, right of creditors to, 120. INDEX P 365 Bankruptcy — continued. Petition, bankruptcy, where it must be presented, 89. course where proceedings commenced in ■wrong' court, 90. can only be presented against debtor domiciled or resident in England, 91. general rules as to presentation of, 93. within what time act of bankruptcy must have occurred, 94. how served, ib. proceedings at hearing of, 100. effect of presentation by debtor, 101. course when debtor disputes statements in, ib. powers of court before petition is heard, 104. (a) may appoint interim receiver, ib. (b) may stay any action, &c., ib. (c) proceedings pending may be stayed, &c., ib. Possession, order, and disposition clause, what goods are within, 124. a partner's goods are within, ib. assessment of trade debts, ib. 125. furniture, hiring agi-eement, 125. goods, &c. left for alteration, &c. with tradesmen, &c., ib. POWEES, vest in trustee, 116. Peefeeence, fraudulent, is act of bankruptcy, 96. definition, 97. necessary marks of, ib. Peepeeential debts, meaning of, 140. what are, ib. friendly societies, ib. Peoof of debts, how proved, 112. when proved, ib. affidavit as to, ib. costs of, ib. duties of receiver, ib. trustee, ib. rejection of, ib. how objected to, 113. valuation of security on, ib. creditor may amend valuation in proof, 135. by partnership estate against separate estate of partner, 136. by partner against separate estate of co-partner, ib. against two firms with common partner, ib. when partner commits a fraud or breach of trust, 137. by surety, ib. after payment of debt, ib. for contribution, 138. when payable, subsequent to act of bankruptcy, ib. by foreign creditor, ib. by married woman for money lent to her husband, ib. what claims can be proved, lb. cannot be proved, 139. •3^5 INDEX. p Bankruptcy — continued. Peoperty, what vests in trustee, 116. what not divisible among creditors, ib. what trust property is excepted, 118. copyhold rights of trustee in, 120. stocks, shares, &c., 121. powers of court as to seizure of, 126. trustee's title to, 127. which would not have belonged to debtor, 128. Peotected transactions, meaning of, 117. what arc, ib. Peotection of debtor's estate, powers of court as to, 104. Peoxtes, rules as to, 115. to whom they may be given," ib. penalty on trustee, &c. for soliciting, ib. Public examination, of debtor, when held, lOrj. course when debtor fails to attend, ib. who may question debtor, ib. how made, 106. when concluded, ib. ECCLESIASTICAL LAW. Parish church, arrangement of seats in, 171. PAEisn clerk, what is, 171 suspension of, ib. Paeson, definition, 172. presentation of, to living, ib. Peottliae, what is a, 187. Peculiaes, what is the Court of, 187. Penalties, to wliich clergy and laity subject, 191. to which clergy alone subject, ib. Penance, 191. Pension to clergyman resigning, 170. Pebsonai tithes, 174. Pleadings, in civil ecclesiastical suit, 190. j)laii.tiff'H " lil)el," ib. (lct'r:li(l;nii,'H aiiHWCr, ib. plaintifl's libel, how objected to, ib. Pbedial tithes, 174. 1 INDEX, p Ecclesiastical Law — co>iti>,u:d. Pkesextatiox, fomialities on, 172. Petvt Council, appeal to. ISS. under Public Worsliip, &o. Act, 197. Pkoceduke ia ecclesiasticiil law, 189 — 193. Peosteation of celebrant before consecrated element:!, ISo. in prayer of consecration, ib. Peotixcial constitutions, 163. sj-nods, 1(34. Public WoEsnip Regulation Act, 19')— 198. object of, 195. to -v\-hat class of subjects applicable, ib. proceedings imder, how commenced, ib., 106. where matter transmitted to judge, 19G. evidence under, 197. appeal from judge under, (7*. obedience to judge, how enforced, ib. representation under, of illegal at'ts in cathedrals, ib. limitations to right to take proceedings under, 198. resemblance between, and Church Discipluio Act, ib. differences, ib. ADMIRALTY. Payment out of court, 224. Pilot, when entitled to remuneration for salvage, 204. exemption from liability, wheu compidsory, 210. limitation of liability of, ib. Pilotage, lien for, 200. Possession suits, what arc, 2 IT). for what purpose employed, ib. to place claimants in possession of sliip, ib. of earnings of ship, ib. to enable ship to bo omployi-d, ib. to examine accounts before co-owners, ib. jurisdiction in, over foreign ships, 216. employment of ship by majority of owners, ib. Peactice, of Admiralty Division, 220—229. what rules regulate, 220. Peeliminary Act, meaniTig of, 225. contents of, ib. object of, 226. wh(;n allowed, ib. how amended, ib. Peopeety saved, value of, how (calculated, 204. ;i68 INDEX.— P CRIMINAL LAW. 1'ardon, where granted, 318. Paetnke, larceny of, 271. Paupes's settlement, 329. Penal servitude, smallest term, 315. longest term, ih. oflfence of being at large without authority, 240. Peejuey, what is, 24G. acts amounting to, 247. how committed, ih. nature of false swearing, ib. evidence as to, ib. definition of offence of, ib. punishment of, ib. subornation of, how punished, ib. PiBACY, definition of, 240. how punished, ib. Poisox, administering, 266. Police supervision, 315. Post office, larceny by employe in, 275. of any person, ib. Previous con-viction, proof, 312. Principals, definition of, in first and second degree, 237. in second degree, how punished, 238. Prison, escape from, 244. • breach of, what is, 246. Prisoner, found insane at trial, how dealt with, 236. aiding to escape, how punishable, 246. assi^ces, 305. arraigning, 306. when mute, ib. queen's evidence, ib. pleas, ib. autrefois acquit, ib. autrefois convict, ib. evidence of bad character, 311. offences, ib. previous conviction, 312. evidence of good character, 313. guilty on several counts, 314. Prize fight, death of one of tlie combatants, holder of .stakes, 239. INDEX.— P, a, R 369 Criminal "Lsiw—coiiiiinKd. Public peace, offences against, 249. unlawful assembly and riot, ib. nature of offences against, 250. when riot amounts to felony, ib. definition of affray, ib. sending challenge, ib. Punishment, hard labour as, 315. whipping, ib. solitary confinement, ib. Q. DIVORCE. Queen's Proctor, intervention of, in divorce proceedings, 83. CRIMINAL LAW. QuAETEE Sessions, 294. offences triable at, ib. appeals to, 327. Queen, insults to, 241. Queen's Bench Di\dsion, criminal jurisdiction of, 292. indictment by certiorari, ib. Queen's evidence, 306. E. PROBATE. Real estate, law governing succession to, 5. Receivee, power of Probate Division to appoint, 4. powers of, ib. Re-heaeing of cause tried -wdthout a jury, 51. by executor of executor, 32. not by administrator of executor, 33. or administrator of administrator, ib. Renunciation of probate, 1. by executor in one character, 36. by one of several executors who survives his co-executors, ib. by executor, 36. to what period, ib. how made, ib. by minors and infants, ib. by lunatics, ib. Revocation of will, dependent relative, 12. by maiTiage, 11. Rules in Probate Division, 1 . N. B B 370 INDEX. — R DIVORCE. Registeae, license of, 62. certificate of, ib. Reply, 78. Rbspontjent, answer to divorce petition, 78. course of, when petitioner fails to file questions or set down cause fur trial, 80. who has appeared but not delivered answer, to what extent heard at trial, ib. RESTiTtTTiON of conjugul rights, GG. . INDEX. — S o73 Bankruptcy — con tin tied Secuked creditor — continued. rules as to voting, 113, 135. how defined, 129. mortgagee, ib. course when desiring to share in dividend, 13-3. Security, may be realized, &c., 113. valuation of, may be amended, ib. when trustee, &c., may redeem it, 114. creditor of firm holding separate, 135. amendment of valuation of, 136. Secdeity by trustee, 109. under composition, 157. Sequesteation, course of bishop on, 119. Set-off, rule as to, 141. Settlement, voluntary, when void, 127. in consideration of marriage, ib. of wife's property, ib. meaning of, ib. effect of, on discharge of bankrupt when made to defeat creditors, 150. Sheriff, duties of, on execution exceeding 20/., 98, 99. after notice of receiving order, 117. when he may not sell by private contract, 162. Small bankruptcy, meaning of, 159. modifications in case of, ib. Special manager, how appointed, 103. Statement of afi'airs, duty of debtor as to, 106. within what time submitted, 107. Avho may inspect, ib. Stock Exchange, rules of, in case of defaulting member, 121. SUEETY, proof by, 137. rights of, after payment of debt, ib. proof for contribution by, 138. Suspending payment, what amounts to notice of, 100. ECCLESIASTICAL LAW. Seats, arrangement of, in pai'ish church, 171. Sequestration, what is, 191, 192. how issued, 192. performance of worship during, ib. SEaUESTEATOE, pOWCrS of, 193. Service, viis et modis, 190. 374 INDKX. — S Ecclesiastical Jja-w—condiiurd. Sextos-, duties of, 171. how chosen, ib. may be a woman, il>. SnioxY, what is, 180. penalty for person guilty of, ih. SuFFBAGAN bishop, what is, 1G7 Suits, difference between civil and crhninal, 189, 191. civil, how commenced, if>. criminal, how commenced, ib. SrEPLiCE fees, definition of, 181. StTSPENSION ab ififfrcssi ecclesi(F, 191. ab officio. &c., ih., 192. ADMIRALTY. Sale in adiuiralty, how conducted, 229. S.VLVAOE, lien for, 200— 20o. ■what is, 202. jurisdiction in cases of, ib. services, chief points relating to, ib. crew, pilot, when entitled to reward for, 203. for saving Kfe, ib. amount of, elements considered, ib. value of prt)perty saved, how calculated, 204. how apportioned, ib. amongst (1) officers and crew, ib. (2) other persons assisting, ib. (3) owners of ship, ib. to persons who have not actually saved property, ih. payable generally only where services successful, ib. pilot, when entitled to reward for, ib. agreements for, how regarded, 205. when bullion on board ship, ib. special provisions as to release of property in, 224. Salvors, when reward of, forfeited, 205. lien of, ib. SECtnuTY for costs, 222. Seevice of warrant of arrest, 225. Sini', when forfeited, 219. STA'n':MENT of claim, delivering, 226. cif defence, ib. CRIMINAL LAW. Security, how given, 289. by whom, ib. how obtained, ib. for what maj- br; demanded, ib. ref^ogiiizances, ib. keeping the peace, ib. holders of licenses, ib. iNDEx.—S, T 375 Criminal JjQ,vr—co)iti)iHrcL Skevant, master and servant, 267. forgery by, 285. larceny by, 274. embezzlement by, 278. misappropriation by, 279. Sessions, Quarter, 294. offences triable at, ib. Setting fire to buUding, 286. Ship, sending- to sea unsea worthy, 2o9. Smuggling, definition of, '2oS. penalties for, ib. Society, unlawful, meaning of, 242. SOLICITOK, evidence against prisoner, 309. pretending to be a, 328. conducting case without certificate to practise, ib. SpeciaIi case, 327. Statute of Treasons, what is the original statute of, 240. Stolen goods, restitution of, 323. SuBOENATiON of perjuiy, how punished, 247. SxnoiAEY jurisdiction, powers of court, 319. claim of property, ib. of title, ib. demand for trial by a jury, ib. definition of child, 320. young person, ib. an adult, ib. limit of punishment, ib. in relation to offences by young person ih. small larcenies, 321. embezzlements, ib. when above 40s., ib. whipping, 322. hearing of case, 325. enforcing payment, ib. cumulative sentences, ib. costs, ib. appeal, 326. appeal to quarter sessions, ib. cruelty to animals, 328. Sunday trading, penalty for, 244. Supervision, police, 315. T. PROBATE. Teaeing, when will revoked by, 11. Testamentary papers, order for production of, 52. Testatoe, signature of, how made, 8. 376 INDKX.— T Probate— row /iwM<-r/. Telu., notice of, in probate, 5 1 . application for new, to whom made, and how, in probate actions, ib. when tried in County Court, if>. DIVORCE. Telax, notice of, by whom cause set down for divorce, 79. question of fact. ib. application for, 84. BANKRUPTCY. Taxation of bills of solicitors, kc, 148. Trustee in bankruptcy, what division of High Court actions must bebroug-ht by, 91. who is, 108. how appointed, ib. must give security, 109. consequence if trustee not appointed by creditors, ib. more than one person may hold office of, t^. remuneration of, how fixed, 110. how objected to, ib. may not accept additional remuneration, ib. duties as to proofs, 112. declaration as to proof, how objected to, 113. may redeem security. 114. what property vests in, IIG. power over estate tail, 118. when bankrupt has ag:reed to buy lands, ib. ■what right to earnings of bankrupt, profits of benefice, &c., ib., 119. right to bankrupt's copyholds, 120. to stocks, shares, &c., 121. of member of Stock E.xchange, ib. disclaimer of onerous property, kc. bj', ib. what rights of action do not pass to, 123. may obtain order for discovery of debtor's property, 126. title to property which would not have belonged to debtor, 128. when bankrupt, trust funds can be followed, 130. duty of, before doclarin'r final dividend, 132. distributing dividends to creditors at a distance, 134. notice by, ot declaration of dividend, ib. duty of, before declaring dividends, ib. no action against, for dividends, ib. must estimate value of contingent debts, 139. contrfjl over, 142. a])peal against decision of, ib. duties of, in relation to bankrupt's property, 143. duty of, as to reports to Board of Trade, ib. as to money received by him, ib. Senalty for retaining money, ib. abihty for rents and covenants in lease, 144. vacancy in office, liow filled up, ib. who acts during, ib. course when wishing to resign, ib. i.xDKx. — T ,377 Bankruptcy— ro//^(«;^^Y/. Teustek iu biuikruptcy — conthnwd. removal of, 14o. powers of, apart from committee of inspection, ib. with permission of committee of inspection, 14G. liability to pay solicitor's costs, ib. purchase by bankrupt from, 147. cannot purchase bankrupt's iiroi^erty, ib. when may appoint bankrupt to superintend business ib when may make allowances, &c. to bankrupts, ib. ' how released, ib. how he sues and is sued, 148. remuneration of persons employed by, ib. action by, against debtors to partnership estate, 154. ECCLESIASTICAL LAW. Tithe rent -charge, how payable, 174. Tithes, how belonging to laymen, 174. great, what are, ib. small, what are, ib. how paid, ib. how merged in land, 175. what are extraordinary, ib. who entitled to tithe during vacation of vicarage, 182. Teading by clergyman, 169. Tunicle, use of, 184. ADMIRALTY. Taxing-master, in admiralty registrar as, 220. Theee mile limit, meaning of, 199. jui-isdiction of English courts within, ib. Towage, lien for, 200, 207. definition, 206. extraordinary, ib. jurisdiction of Admiralty in, ib. engagements implied in contract of, ib. release of tug from engagement, ib. duties of tug in cases of accident, ib. Trial speed in Admiralty, 227. Trinity Masters assessors in Admiralty, 227. Tug, release of, from engagement to tow, 206. CRIMINAL LAW. Tenant, larceny by, 274. Threatening letters, sending, 251. intent to extort money, ib. Ticket of leave, definition of, 318. how revoked, ib. >'• CO 378 INDEX.— T, U, V Criminal JjeL-vr—cuntinueJ. Teadk- MAKES, offences nguinst, 254. Thadixg, Sunday, penalties for, 244. Tbbasox, constructive, what is, 241. time limited for prosecution, ib. evidence of, ib. misprision of ; what is, ib. felony, meaning of, ib. by officer under crown, 316. Teees, larceny of, 269. malicious injury to, 288. Teustee, embezzlement by, 280. U. PROBATE. UxDUE influence in probate, plea of, 50. meaning of, 13. BANKRUPTCY. UifLiauiDATED damages, when provable, 138, 139. ECCLESIASTICAL LAW. I'N.vrPKOi'itiATED advowsons, 173. CRIMINAL LAW. UNLAWFUL, oaths, 242. society, meaning of, ib. Unseawokthy ships, sending to sea, 259. Utteeino counterfeit coin, 243. V. BANKRUPTCY. Vesting onler of disclaimed property, 123. ECCLESIASTICAL LAW. VlCAK, receives smaller tithes, 1^3. qualifications of title, 175. VicAEAOE, who entitled to tithe durnig the vacation of, 182 CRIMINAL LAW. \'i.ssEi.s, malicious injury to, 287. Vexatiotts indictments, 303. conspiracy, 304. limit of time, ib. INDEX.— W 379 w. PROBATE. Warning, to caveat, 44. from what ofiBce issued, 48. "Will, no special form necessary, 7. of seamen as to jjrize money, &c., ib. of British subject made abroad, ib. incapacity to make a, 6. arising from circumstances or by nature, ib. by act of others, ib. by operation of law, ib. of executrix, 7. under power of appointment, ib. of married woman's separate use property, ib. of personal estate made abroad, form of, 8. construction of, ib. decisions of foreign Courts as to foreign, ib. of soldier, or marine or seaman in actual service or at sea, 10 when revoked by subsequent will, 1 1 . what amounts to burning, tearing, or destroying, ib. when not revoked by man-iage, ib. dependent relative revocation of, 12. proof of contents of lost, ib. of testator subject to delusions, proof of, ib. incorporation of papers by reference in, 13. of realty, when admitted to probate, 14. how proved, in common form, 15. when not dated, ib. what evidence of death necessary to obtain probate of, ib. probate of, of blind or illiterate person, 16. erasures and obliterations in, 17. when probate granted of draft of, ib. l^arol evidence of contents when lost, ib. probate of, when in possession of person abroad, 18. course when due execution disputed, 50. made abroad, what papers required to prove, 6. in foreig-n language, ib. execution of, 6 — 13. validity of, ib. revocation of, ib. when a married woman can make, 7. Witnesses, attesting, need not see testator sign, 9. be in same room as testator, ib. signature of, ib. Weit, indorsement of, in probate cases, 48. DIVORCE. Witnesses, competency of parties to divorce proceedings as, G4. BANKRUPTCY. Waking, rule in E.v jnirte, 154. 380 INDKX. W ECCLESIASTICAL LAW. AVafee bread, use of, 1S4. WixE, mixing of, for commuuion service, 184. Writ dc contumace capiendo, 193. ADMIRALTY. Wages, lien for, 200, 213. jurisdiction of Admiralty, 212. seaman's renied}- for, ib.^ of foreign seamen, jurisdiction of Court as to, ib. meaning of, in Admiralty Division, ib. sums recoverable as, ih. disbm-sements in suit for, 213. assignment of future, ib. allotment note, ib. restriction of Admiralty jurisdiction, 214. Waebant of arrest, 221. caveat against, 222. how served, 225. AVett, .service of, how effected, 221. CRIMINAL LAW. Waekant, backing a, 295. search, ib. girl or woman, 296. Will, stealing, kc, 269. 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