case (Murdoch v. Taylor, 6 Bing. N. S. 293), although it would in equity: (Story's Eq. § 812.) Probably it could now be brought in the High Court in such a case; if not, the tenant's remedy would be by applying for an order to have the question decided between the plaintiff himself and the mortgagee under Order XVI., r. 48.

Affidavits.

Q.-What is an affidavit, and name its several parts?

A.—An affidavit is a written statement upon oath, consisting of (1) the title; (2) the description of the deponent; (3) the body or contents; (4) the jurat: (Sm. Act., 88, 2nd edit., by Foulkes.)

Q.-Before and after an action brought, how must the affidavit be entitled ?

A.-Before action brought it is sufficient to entitle the affidavit with the name of the court or division in which you intend to sue. After action brought the affidavit must be entitled in the cause also, i.e., the Christian and surname of the plaintiff and defendant as well as the court and division (Sm. Act, 88, 2nd edit., by Foulkes.)

Q.—Is an affidavit sworn before one of the judges of the High Court of Judicature at Bengal, admissible in evidence in the High Court of Justice, without any further evidence, and, if any, what further evidence is required?

A.-The authority of the judge to administer oaths and his signature to the jurat must be verified by an affidavit made in this country or by the certificate of a public notary or British consul. This rule applies to all affidavits sworn abroad, unless before the persons specified in the 18 & 19 Vict. c. 42: (Chit. Arch. 1301, 13th edit.)

Q.-May an affidavit in a cause to be used in court or before a judge be sworn before the solicitor in the cause, or his clerk, each of them being a commissioner authorised to take affidavits in the country?

A.-No affidavit will be deemed sufficient, if sworn before the party's own solicitor or before any agent, correspondent, clerk, or partner of such solicitor (Order XXXVIII., rr. 16, 17.)

Q.-Objection was made to an affidavit that the deponent had not inserted any description of himself or his residence ; was this a good objection?

A. Yes; for by Order XXXVIII., r. 8, every affidavit must state the description and true place of abode of the deponent.

Q. What are the requisites to the form of the jurat to an affidavit ? A.-The jurat consists of a short statement when, where, and before whom the affidavit was sworn, and, if several deponents, by whom. And if there be any interlineation, alteration, or erasure, whether in the jurat or in the body, the affidavit cannot be read or made use of without leave, unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, in the case of an erasure, unless the words or figures written on the erasure are rewritten

and signed or initialled in the margin by the officer taking it: (Ib., r. 12.)

Q. What is the form of a jurat when there is more than one deponent?

A.-When several deponents are sworn their names must appear in the jurat, thus: " Severally sworn by the above-named deponents, A., B., and C.," &c., and if they are all sworn together, "Sworn by both (or all) the above-named deponents," &c. : (Ib., r. 9.)

Q.—If the jurat omit to state the day on which the affidavit was sworn, what will be the consequence?

A.—The affidavit cannot be read unless by leave: (Ib., rr. 5, 14.)

Q.-Before whom are affidavits sworn in the country?

A. They are sworn before commissioners appointed to take affidavits in the Supreme Court: (Sm. Act. 2nd edit., by Foulkes, 89.)

Q.-What is required to be sworn in an affidavit of "merits?"

A. That the defendant has "a good defence to the action upon the merits" (see fully Chit. Arch. 800, 13th edit.)

Q.-By whom may an affidavit of increase be made?

A. By the solicitor in the cause, or his managing clerk if he swears that he had the management of the cause.

Q.-Have any, and what, alterations been recently made as to the form of affidavits; and, if the alteration is not adopted, in what way will the costs be affected?

A.-Affidavits to be used in any civil proceedings are now to be drawn up in the first person, divided into paragraphs, to be numbered consecutively, and as nearly as may be confined to a distinct portion of the subject. They must be written or printed bookwise, and confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, when statements as to belief, with the grounds thereof, may be admitted. No costs will be allowed for any affidavit, or part of an affidavit, substantially departing from this rule: (Ib., rr. 3, 7.)

Motions and Rules-Summonses and Orders.

[NOTE.-Applications are made to the court by motion, and if granted are followed by a rule. Applications at chambers are made by summons followed by an order.]

Q-Upon service of a rule or order, must the original always be shown?

A. No; this is not necessary if an office copy be exhibited, unless the service be with a view to an attachment: (Order LXVII., r. 1.)

Q. When personal service of a rule is not required, will putting it under the door of the defendant's chamber or place of business, or into the letter box, be sufficient? or what is further required to make it good? and where a rule nisi is improperly served, can it ever be made absolute ?

A.-Putting a rule under the door of the defendant's chambers, &c., will not be sufficient unless there be a notice requiring papers to be so left,

or unless you afterwards call and ascertain that it has been received. If there is any irregularity in the service of a rule nisi, the party's appearing and showing cause against it will, in general, be a waiver of the irregularity; and if no sufficient cause be shown, it may be made absolute: (Chit. Arch. 176, 1195, 13th edit.)

Q.-Is a party taking out a summons before a judge entitled to an order on the return thereof, or must he take any further step?

A. Such summonses are now entered in a printed list, and are called over in their order. If only one party appears, an order may be made ex parte upon an affidavit of service, either granting or dismissing the application, as the case may be, and either with or without costs: (Ord. LIV., r. 5.)

Q.-Before what hour must service of pleadings, notices, summonses, orders, rules, and other proceedings be made, to prevent the service being deemed as made on the following day?

4. Before six o'clock p.m.; except on Saturdays, when it must be made before two o'clock p.m. If made after six o'clock p.m., on any day except Saturday, the service will be deemed as made on the following day; and, if made after two o'clock, p.m., on Saturday, the service will be deemed as made on the following Monday: (Order LXIV., r. 11.)

Q. How can the order of a judge or master be enforced; and has any, and what, alteration in the law on this subject been made by the Judicature Acts or the Rules under them?

A. Formerly at common law every order of a judge had to be made a rule of court, after which it was enforced by attachment, or if for payment of money by execution. Now by Order XLII., r. 24, every order of a court or judge is enforced in the same manner as a judgment, and this was the old practice in Chancery.

Attachment.

Q. What is the nature of a writ of attachment? and when it is issued against the sheriff, to whom is it directed?

A.-A writ of attachment is a judicial writ which commands a taking, apprehending, or seizing: (Holt. L. D., 2nd edit.) A party guilty of a contempt of court is punishable by attachment. In ordinary cases the writ is directed to the sheriff; but attachments against the sheriff are directed to the coroner: (see Sm. Act. 183, 2nd edit. by Foulkes.)

Q-Name some of the cases in which the court will grant an attach

ment.

A.-Disobeying a rule of court is a contempt of that particular court and punishable by attachment. An attachment will lie for a libel on the court and also against the sheriff for not returning the writ, or bringing in the body. An attachment also lies against a witness for non-attendance at the trial, if served with a subpoena requiring his attendance: (see post, tit. "Execution," and note.)

Q. What service is necessary to enable a party to obtain an attachment ?

A.-Personal service is necessary as a general rule, and the original

rule should be shown. There are, however, circumstances which are deemed equivalent to personal service: as, if the party admits the rule to be then in his possession, or shows cause against it; or where he prevents an actual personal service by violence: (see Chit. Arch. 1391, 13th edit.)

Q. How do the courts proceed in cases of contempt ?

A.-They punish the party guilty of it by attachment: (Sm. Act. 184, 2nd edit., by Foulkes.)

Q.-In what cases are rules for attachment absolute in the first instance?

A.—In all cases now by Order LII., r. 2.

FORMS OF ACTION. &c., AND PRELIMINARIES TO THE COMMENCEMENT OF AN ACTION. (a)

Question.-What is an action ?

Answer.―The means pointed out by law of obtaining the remedy of a civil injury. It is defined also as that formal course of proceeding which a party seeking to enforce a right is by law bound to adopt : (Sm. Act. 1, 2nd edit., by Foulkes.

2. For trespass,

Q. What were the principal causes of action at common law? A. They were the following: 1. Detention of debt. which might be either to a man's person, or his goods or lands. 3. For libel or slander. 4. For a conversion of goods. 5. For use and occupation. 6. For fraudulent misrepresentation. 7. For false imprisonment. 8. For a private nuisance, or a public one from which a person has sustained a particular injury. 9. For an excessive or wrongful distress.

Q. What was the meaning of a local and of a transitory action? and what actions were local and what transitory?

A.-Local actions were founded on such causes of action as necessarily referred to some particular locality, as in the case of trespass to land; while transitory actions were founded on such causes of action as might be supposed to take place anywhere, as in the case of trespass to goods. Real actions were always in their nature local; personal actions were, for the most part, transitory. And local actions were (unless otherwise specially ordered) tried in the county in which the cause of action arose, and by a jury of that county; while transitory actions were tried in any county, at the discretion (in general) of the plaintiff (see 3 St. C. 374, 8th edit.) By Order XXXVI., r. 1, there is now no local venue for the trial of any action. Actions will in future be tried in Middlesex unless plaintiff name in his statement of claim, or where there is no statement of claim, by notice within six days after appearance, some other county or place, or a judge otherwise order.

(a) The names of the old forms are still used to describe the nature of actions.

Q.-State the maxim of law that applies to transitory actions. A.-The maxim applying to transitory actions is Debitum et contractus sunt nullius loci: (Bulwer's case, 7 Rep. 3, a; Mostyn v. Fabrigas, 1 Sm. L. C. 652.)(a)

Q.—In adjudicating on causes of action which have risen abroad, by what laws and practice are the courts of this country governed?

A.-If the cause of action be transitory, an action thereon may be brought here, the merits being determinable according to the law of the country where the cause of action arose, or the law of the country with reference to which the contract was made. The practice, however, being governed by our laws. (a) Where, however, the venue was local, no action could be maintained in the Superior Courts here, if the locus in quo was abroad; as for breaking a close in Canada (see Lush's Pr. 1, 3rd edit.); but it would be otherwise now: (see Whitaker v. Forbes, 45 L. J. 140.)

Q. What is the distinction between liquidated and unliquidated damages? Give instances of actions in which each species of damages is recoverable.

A.-Liquidated damages is where the amount to be recovered is fixed and certain, as in an action for debt. Unliquidated, where the amount to be recovered is uncertain, as where an action is brought for an assault. Again, in an action for liquidated damages, judgment by default is final; but, for unliquidated damages, it is only interlocutory, and the amount must be assessed either on a writ of inquiry or before a master of the court (3 St. C. ch. 5), or ascertained in any other way which the court or judge may direct: (see Order XIII., r. 5.)

Q.-Explain the difference between penalties and liquidated damages. 4. As to liquidated damages, see preceding answer. The legal operation of a penalty is not to cause a forfeiture of the whole amount, but only enough to satisfy the actual damage sustained.

Q. What was an action of assumpsit?

A. It was an action which laid for the recovery of damages for the breach of any simple contract. It laid on bills of exchange, on promissory notes, on policies of insurance, on loans, sales, guarantees; in fact, in almost all the cases which are of most frequent practical occurrence: (Sm. Act. 47, 10 edit.; 3 St. C. 372, 8th edit.)

(a) It is a general rule, although not universally true, that a contract made abroad, if good according to the lex loci contractus, would be good in England: (The Sussex Peerage case, 1 Cl. & Fin. 85.) Immoral contracts, though valid abroad, would not be enforced here: (Story's Confl. Laws, ss. 258, 259.) If the law of this country conflicts with foreign law there is no comity of nations which requires our law to give way: (ib. s. 326.) In Mostyn v. Fabrigas, it was held that trespass and false imprisonment lay in England by a native Minorquin against the governor of Minorca, for such injury committed by him in Minorca: (1 Sm. L. C. 652 and notes.) This is the leading case as to torts. See also Scott v. Lord Seymour (6 L. T. Rep N. S. 607.) If a charter party does not provide otherwise, the law of the country to which the ship belongs governs the contract, as a general rule: (Lloyd v. Guibert, L. Rep. 1 Q. B. 115.)

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