H-fS (Snrn^U Ham ^rlyool Slibtaty Digitized by Microsoft® KD 663.Hiri859"'""'' """"' °''MuiiiSMifflSii?SiP,?!!i9P.,.9yMons ]n c 3 1924 021 665 108 DATE DUE GAYLORD PRINTED IN U.SA Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® A DIGEST EXAMINATION QUESTIONS COMMOK LAW, CONYEMCING, AND EQUITY, THE COMMENCEMENT OF THE EXAMINATIONS IN 1836, TO THE PRESENT TIME, ANSWEES; AMO, THE MODE OF PROCEEDING, AND DIEEGTIONS TO BE ATTENDED TO AT THE EXAMINATION. RICHARD ^J^LILAY, Aiahor of " The Articled Clerh's EmtdbooJe," and " A Suit in Chancery." SBOOBrD EDITION. LAW TIMES OFFICE : 19, WELLINGTON STREET NORTH, STRAND. W. C. 1859. Digitized by Microsoft® LONDON: Printed ty John Cbookfoud, 19, WoUlngton-streot North, Strand. Digitized by Microsoft® PREFACE TO THE SECOND EDITION. The First Edition of this work having been exhausted some time ago, and a new edition being called for, I have used every diligence in the preparation of it. A great part of the First Edition was written before I was admitted, and for my own improvement, and in that rough state went to the printer. In preparing the Second Edition I have re-arranged the divisions, and re-written many of the answers, which greater experience and a more mature judgment have enabled me to improve ; and I have carefully revised the whole work. All the new questions asked since the first issue, and their answers, have been added, including those of Trinity Term 1859, which will be found in the Appendix. Many additional references have been given, both to Text-books and decided Cases ; and the alterations made by the recent Statutes, including those of last Session, have been carefully noted. But if, after all, some few inaccuracies have crept in, I am sure they will be received with that indulgence which the Law Student is always ready to accord on account of the incessant change and unsettled state of our laws. Although the length of the answers have been, in some instances, curtailed, yet so many new questions have been added that the bulk of the volume has increased, about eighty pages. It was originally my intention to have incoi"porated The Articled Clerk's Handbook with this edition; but, as that would have so greatly increased the cost of this work, it has been thought advisable Digitized by Microsoft® IV PREFACE TO SECOKD EDITION. to keep the two distinct, leaving it to the option of the Articled Clerk whether he purchases the two or one. The Handbook is published as an Appendix to the Digest, and Is divided into two parts. The first part contains advice on study; how to read; commonplace books; debating societies, &c.; an historical sketch of, and the books to be read in, all the branches of the law. The second contains the latest law relating to Articled Clerks ; directions as to giving the notices for examination and admission, and forms for that purpose, and a table of fees payable on admission. A glossary of technical law phrases is added. E. H. 62, Chanceet Lane, 5th November, 1859. Digitized by Microsoft® PREFACE. This compilation is chiefly designed for the aid of the Articled Clerk in preparing for his Examination. For the present, it is confined to the three indispensable heads of inquiry at the examina- tions — Common Law, Conveyancing and Equity; the Candidate not being required to answer in the other two — Bankruptcy and Criminal Law. In these three branches is contained a Digest of all the Examination Questions and Answers from 1 836 (the com- mencement of the examinations) to Easter Term 1856. They have been classified and arranged under their proper heads, in order to facilitate, as much as possible, the Articled Clerk in his course of study. The questions on Kepealed Law have been omitted, and repetitions of similar questions avoided. Some of the questions have been slightly altered, either to adapt them to the present state of the laws or to correct an obvious error. The arrangement of the divisions is slightly different from that of the examinations. Conveyancing being put first ; for, at the time this portion of the work was written, the Practice of the Courts, under the several Reform Acts, was not very well settled, and more time was thus allowed to elapse before answering the questions relating to the Practice of the Courts. In writing the answers to the questions, the Author has endea- voured to do so as clearly and concisely as possible, so as to avoid their being meagre on the one hand and verbose on the other ; for long rambling answers are more likely to confuse than aid the student. Digitized by Microsoft® ^1 PREFACE. In citing Authorities for the answers, reference is generally made to some well-known Text-book, where any further information on the subject may be obtained, and where all the authorities are collected, rather than to the Reports themselves, which the Articled Clerk has, in general, no opportunity of referring to. In the Appendix will be found the mode of proceeding, and directions to be attended to, at the Examination. And, to make the work more easy of reference, a copious Index is added. August 1856. Digitized by Microsoft® CONTENTS. I. CoMuoN AND Statute Law and Pbaotice or the Cooets. Nature of the jurisprudence adminis- tered by, and distinctiTe jurisdic- tion of the common law courts... ^aj'e 1 Actions, their nature, forms and cha- ^ racteristics S 'The Law of Contracts 7 '^ills of exchange, promissory notes and cheq[ue8 17 ' Landlord and tenant „.... 20 ' The law of torts, or private wrongs... 24 ' Limitations of actions 29 ^Parties to actions 32 'Notice before action 35 Interpleader 36 Commencement of litigation 37 Injunction 41 Arrest — Ball '. 42 Attachment 46 Appearance 46 Venue 47 Pleadings „...page 48 Interlocutory or collateral proceed- ings „ 55 Bvidence and witnesses 63 Trial, and its incidental proceedings 69 Judgment 73 Costs 80 Error r 88 Execution 88 Habeas corpus, or statutes securing personal liberty of subjects 93 Affidavit 93 Warrant of attorney and cognovit ... 95 Ejectment 98 Arbitration 102 Distress 104 Replevin 108 County Courts 110 Highways 112 Attorney and client 113 II. COHVETANCING. Tenures and nature of estates 115 Estates in severalty, joint tenancy and coparcenary 118 Estates in remainder, reversion, &c. ... 120 Estates for life and years 123 Estates tail 124 Estates in fee-simple 130 Uses and trusts 131 Legal and equitable estates, powers, &c 132 Property, real and personal 135 Tithes and advowsons 138 Emblements 140 Copyholds 141 Dower, freebench and curtesy 145 Voluntary settlement or conveyance 149 Leases 150 Mortgages 157 Judgments and other debts 165 Conditions of sale 168 Vendor and purchaser 170 Enrolment and registration of deeds, &c 190 Husband and wife 193 Settlements 197 Appointment 200 Testamentary alienation 202 Intestacies 211 Trustees, executors, &c 216 Outstanding terms merged 219 Bonds 221 Digitized by Microsoft® CONTENTS. III. Equity and Practice of the Couets. General nature and objects of equity juriBprudence page 222 Accident and mistake 230 Fraud 231 Trusts and trustees 233 Administration 238 Devise and election, legatees and exe- cutors 243 Specific performance 250 Covenant, forfeiture 254 Points relating to mortgages 255 Partition 259 Account 2.59 Cy pres 260 Infants 261 Eights of married women 264 Lunatics 269 Aliens 270 Partnership 271 Solicitor and client 273 Arbitration 274 Waste 275 Receiver 276 Injunctions 278 Writ of nc exeat regno 282 Sale 282 Discovery page 284 Interpleader 287 Perpetuating testimony , 287 Courts, judges and officers 288 Commencement of litigation 290 Appearance 301 Interrogatories for the examination of the defendant 304 Modes of defence 304 1. Answer 305 2. Demurrer 309 3. Plea 311 4. Disclaimer 312 Amendment of bill 312 Beplieation 314 Evidence 315 Setting down causes 322 The hearing 324 Decrees and their enforcement 325 Dismissing suits 328 Appeal 329 Costs 332 Business before the master and judges' chief clerks 333 Miscellaneous and incidental proceed- ings ... 335 APPENDIX. Mode of proceeding and directions to be attended to at the Examination 304 Questions asked at the Trinity Term Examination 1859, with their answers 342 Digitized by Microsoft® A DIGEST OF THE EXAMINATION QUESTIONS AND ANSWERS. L— COMMON LAW. NATURE OF THE JURISPRUDENCE ADMINISTERED BY, AND DISTINCTIVE JURISDICTION OF, THE COMMON LAW COURTS. Question. — Give some explanation of the words " Common and Statute Law." Answer. — " The meaning of the term ' Common Law,' " says Warren, " even among lawyers, is sufficiently ambiguous — the expression being used in various senses, according to the objects with which it is con- trasted ; it being so contradistinguished sometimes from the statute law, sometimes from the civil and canon law, and frequently from equity :" (see Warren's Law Studies, 396, 2nd edit.) It is generally, however, used to distinguish that part of our law which obtains its force from immemorial usage or custom, termed the lex non scripta ; also to distin- guish that department of law which is administered in the Superior Courts of Common Law at Westminster: (see Holth. Law Diet. 2nd edit. ; 1 Bla. Com. ; I Steph. Com. 40, et seq., 3rd edit.) The statute law is termed the lex scripta, embracing the express enactments of our parliaments. Q. — State some of the leading acts of Parliament relating to common law passed during the last five years. A. — The following may be mentioned : — The Act relating to the Amendment of Evidence (16 & 17 Vict. c. 83) ; the Act to compel the Attendance of Witnesses out of the Jurisdiction (17 & 18 Vict. c. 34); the Registration of Bills of Sale Act (17 & 18 Vict. c. 36) ; the Act for the Repeal of the Usury Laws (17 & 18 Vict. c. 90) ; the Pro- cedure Act, 1854 (17 & 18 Vict. c. 125); the Bills of Exchange Act (18 & 19 Vict. c. 67) ; the Mercantile Law Amendment Act (19 & 20 Vict. c. 97); the County Courts Amendment Act (19 & 20 Viet. c. 108) ; the Act enabling Married Women to pass their Reversionary Interest in Personal Property (20 & 21 Vict. c. 57); the Probate Act (20 & 21 Vict. c. 77); the Divorce Act (20 & 21 Vict. c. SH); the Act for granting a Stamp Duty on certain Drafts or Orders for the Pay- ment of Money (21 & 22 Vict. c. 20); the Act to amend the Law B Digitized by Microsoft® ^ EXAMINATION QUESTIONS AND ANSWERS. relating to Cheques or Drafts on Bankers (21 & 22 Vict. c. 79): also Acts to amend the Couaty Courts Act; the Probate Act; the Divorce Act, &c., &c. ^ ifMx/hA- v^-^JLeuyo J/iAyit e-e-^if>^ ha c(M*\Hlf(/'±£^^ Q. — Suppose a statute passed repealing a former act, and such statute becomes itself repealed, does the former act become revived ? A. — Formerly, in such a case, the former act would have been re- vived; but now it is provided, by the 13 & 14 Vict. c. 21, ss. 5, 6, that where any act repealing in whole or in part any former act is itself repealed, such last repeal shall not revive the act or provisions before repealed, unless words be added for that purpose : (1 Steph. Com. 78, 3rd edit.) Q. — Is there any separate jurisdiction belonging to each of the Superior Courts of Common Law, not possessed by all the courts in common ? If so, state what is the separate j urisdiction possessed by each court. A — The Court of Queen's Bench possesses a separate jurisdiction in criminal matters, and also a superintending power over the inferior tribunals in the kingdom, not possessed by the other courts. The Court of Common Pleas, or, as it is sometimes called, Common Bench, has ex- clusive jurisdiction in real action^; also, under the 3 8s 4 Vict. c. 74, respecting the fees connected with conveyances executed by virtue of the act; and also with the examination of married women concerning their assurances ; also in registration of judgments under 1 & 2 Vict. c. 110, 2 & 3 Vict. c. 11, 3 & 4 Vict. c. 82, and 18 Vict. c. 15. The jurisdic- tion of this court is altogether confined to civil matters. The Court of Exchequer of Pleas has the exclusive management of revenue matters : (see 3 Steph. Com. 386, et seq. 3rd edit.) Q. — State the names of the Superior Courts of Common Law at West- minster. Have they concurrent jurisdiction in personal actions ? and if so, has the plaintiff the option of proceeding in either of them ? A. — The Superior Courts of Common Law at Westminster are the Queen's Bench, the Common Pleas, and the Exchequer of Pleas ; and though they were originally instituted for and possessed peculiar and different jurisdictions, they have now concurrent jurisdictions in personal actions, and the plaintiff has the option of proceeding in either of them : (see Smith's Action at Law, I to 8, 5th edit.) Q- — What is a court baron, and what a court leet ? (a) •4. — A court baron is a court incident to every manor in the king- dom, to be holden by the steward within the said manor. It is of two natures : the one is a customary court, appertaining entirely to the copy- holders, in which their estates are transferred by surrender and admit- tance, and other matters transacted relative to tfteir tenures only ; the other is a court of common law, and it is the court before the freeholders who owe suit and service to ^e inanor, the steward being rather the registrar than the judge. Th5refWts1lh^u^fia"their nature distinct, are frequently confounded together. The latter may hold plea of any personal action of debt, trespass on the case, or the like, where the debt or damages do not amount to 40«., as well as determine controversies relating to the right of lands within the manor : (3 Steph. Com. 374, 3rd edit.) A court leet is a court of record held once or twice in every (a) This question wonli^}g^g^j^^/j3(,5^S0f)i®ly P™' in Conveyancing. COMMON LAW. year within a particular hundred, lordship, or manor, before the steward of the leet, for the preservation of peace, and the chastisement of divers minute offences : (4 Bla. Com. 273.) ACTIONS, THEIR NATURE, FORMS, AND CHARACTERISTICS. (^estion. — What is an action ? Answer. — An action is the means pointed out by law of obtaining the remedy of a civil injury. It is defined by the Mirror to be the lawful demand of one's right, and by Bracton and Fleta, adopting, as in many instances, the language of the Roman law, to \>e, jus persequendi injudicio id quod alicui debetur : (Smith's Action at Law, p. 1, 5th edit.) Q. — Actions are divided into real, personal, and mixed : — What actions are real, what are personal, and what mixed ? A. — Real actions are brought for the recovery of real property only. Personal actions for the recovery of personal property, or, as is the more usual case, of damages for some injury. Mixed actions, for the recovery of real property, and also damages against the party detaining it : (Smith's Action at Law, 42, 5th edit.) The only kinds of real actions now in existence are writ or right of dower, dower, and quare impedit, the others being abolished by 3 & 4 Will. 4, c. 27, s. 36; the two first of which are brought by a widow to compel the due assignment of her dower — the difference between the two actions being that the latter is for the specific recovery of the whole of her dower, while the former is for the specific recovery of the residue after she has received part from the tenant; and the last, by a person who complains that he has been improperly deprived of ecclesiastical patronage. Q. — What are the principal causes of actions at common law ? A. — They are the following : — 1. Detention of debt. 2. For trespass, which may 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 occu- pation. 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 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 damages is where the amount to be recovered is uncertain; as where an action is brought against a bailee for injury done through his negligence to an article committed to his care. Again, in an action for liquidated damages, the judgment is final, and nothing further is required to be done ; but where the action is for unliquidated damages, the judgment is only interlocu- tory, and the amount must be assessed either on a writ of inquiry or B 2 Digitized by Microsoft® 4 EXAMINATION QUESTIONS AND ANSWERS. where the amount is substantially a matter of calculation before a master of the court. Q. — What is an action of assumpsit ? A. — Assumpsit is an action which lies for the recovery of damages for the breach of any simple contract. This, in practice, is the form of action adopted in perhaps nine eases out of ten. It lies on bills of exchange, or promissory notes, on policies of insurance, on loans, sales, guarantees, in fact, in almost all the cases which are of most frequent practical occurrence : (Smith's Action at Law, 46, 5th edit.) But, though this action is founded on contract, it may be termed an action on the case : (3 Steph. Com. 452, n., 3rd edit.) Q. — What is an action of covenant ? A. — Covenant lies where redress in damages is sought for the breach of a covenant, that is, of an agreement by deed: (3 Rteph. Com. ut supra.') Q. — What is the difference between an action in assumpsit and debt ? A. — One great distinction is, that debt will not lie for the recovery of unliquidated damages, unless secured by a penalty, but assumpsit must be brought : (Lord Eaym. 1040 ; Smith's Action at Law, 45, 5th edit.) If the plaintiff obtain a judgment in action for debt, it is final in the first instance, and nothing more remains to be done ; but if assumpsit is brought, the judgment will only be interlocutory, and the amount of damages must be assessed either by a master or on a writ of inquiry. Another distinguishing feature between the two is, that assumpsit will not lie on contracts under seal, but debt will : (Smith's Action at Law, 45, 46, 5th edit.; 3 Steph. Com. ch. vii., 3rd edit.) Q. — Does an action of debt lie upon a deed under seal containing a covenant for payment of a sum certain with interest on a given day that has expired ; or to recover principal and interest on a mortgage deed ; or for rent upon a lease under seal ? A. — ^In all these cases debt may be brought ; but the plaintiff may at his option either bring debt or covenant : (3 Steph. Com. 525, et seq. 3rd edit.) Q.— Suppose A. is indebted to B. lOOZ. for goods sold and delivered,, in what form or forms of action can B. recover the debt ? A. — ^The form of action may be either debt or indebitatus assumpsit, at the option of the plaintiff : (3 Steph. Com. 526, 3rd. edit. ; Ai-ch. N.P. 42, 201.) Q. — What is an action of trover ? A. — Trover, which is a sort of action on the case, is usually adopted to try a disputed question of property in goods and chattels. It is so called because the old writ, and afterwards the declaration, stated that the defendant found the goods in question and converted them to his own use : (Smith's Action at Law, 44, 5th edit.) Q. — What is the material difference between the action of trover and detinue ? A. — ^In trover only the value of the chattel is recoverable : (3 Bla. Com. 153.) In detinue, the judgment is for the chattel or its value ■ (3 Bla. Com. 152 ; 3 Steph. Com. 519, 3rd edit.) But by the Procedure Act, 1854, sect. 78, execution may issue for the return of the chattel detained, without giving the defendant the option of paying its value; Digitized by Microsoft® COMMON LAW. and if the chattel cannot be found, the defendant's lands and chattels may be distrained until it be returned. The plaintiff, however, may have its assessed value, at his option. The defendant might before this act have kept the thing detained on paying its assessed value : (Smith's Action at Law, 44, 5th edit.) And this remedy has been extended to the sale of specific chattels for a price in money, if the judge who tries the cause grants leave : (see 19 & 20 Vict. c. 97.) Q. — Can an action be supported on a lost bond or deed where the loss can be accounted for, and the once existence of the original proved ? A. — As the law formerly stood, an action could not have been sup- ported on a lost bond or deed, because profert and oyer of the bond or deed was necessary ; but profert and oyer being no longer necessary, an action may now be maintained : (see Bead v. Brookman,S T. R. 1.51; Story's Eq. Jur. § 81, and note; and see also 15 & 16 Vict. c. 76, s. 5n.) Q. — Is a civil action maintainable in any case in which the cause of action constitutes an indictable offence ? A, — As a general rule, a civil action is not maintainable where the cause of action constitutes an indictable offence, if such offence amounts to a felony, unless the party who seeks to maintain the action has prose- cuted the guilty person, when he may obtain restitution : (3 Steph. Com. 483, 3rd edit.; Broom's Legal Maxims, 120, 159, 2nd edit.) The cases of assault and libel are exceptions to this rule, being only misdemeanors; {id.) also the action under 9 & 10 Vict. c. 93 (commonly called Lord Campbell's Act), for compensation in the case of a personal injury resulting in death. Q. — What action must be brought for — 1. A libel or slander ? 2. A nuisance (as carrying on an unwholesome trade) ? 3. Seduction ? 4. Non- payment of a bill of exchange or promissory note ? 5. The recovery of possession of a house ? A. — For libel or slander the form of action is on the case : (3 Steph. Com. 465, 469, 3rd edit.) For a nuisance of the kind specified an action on the case is the proper remedy : (id. 564.) For seduction an action of trespass, or on the case, may be brought : (id. 536.) For nonpayment of a bill or note, assumpsit may be brought ; and if there be a privity between the parties to the suit, debt maybe sustained: (jrf. 529.) For the recovery of possession of a house ejectment is brought. There is also a summary remedy in the County Courts, and before a magistrate : the remedy in the County Court is more extensive than before a magis- trate under 1 & 2 Vict. c. 74, and therefore more generally resorted to, but the amount of the yearly value or rent of the house is not to exceed 50/., and it Only applies in cases between landlord and tenant upon the ending of the term, or interest of the tenant : (9 & 10 Vict. c. 95, s. 122, etseq.; 19 & 20 Vict. c. 108 ; Arch. New C. L. Pract. 6, 2nd edit.) Q. — How is a contract by matter of record to be enforced ? A. — A contract by matter of record is generally enforced by action of debt : (see Steph. Com. 530, 3rd edit.) Q. — How are contracts under seal to be enforced ? A. — Contracts under seal are enforced either by action of covenant or debt. Covenant will lie in every case of an agreement under seal, and where the damages are unliquidated it is the only remedy ; as for a Digitized by Microsoft® ^ 9 EXAMINATION QtTESTIONS AND ANSWERS. breach of a covenant in a lease on the part of the tenant to repair: (see 3 Steph. Com. 524, 525, 3rd edit.) Q.— Mention some of the causes of action which do not survive to executors. A. — It is a maxim of the common law that a personal right of action dies with the person — actio personalis moriiur cum persona. There are, however, now several statutory exceptions to this rule : by the 4 Edw. 3, ' c. 7, ex ecutors may bring an action for trespass t o the gnnda and chattels of th eir_j£3tator ; and by the 3 & 4 Will. 4, c. 42, s. 2, this remedy is extended to in.iuries done to the real estate of any person deceased, mmrnittgd within qj-y months bef orgj iis death , and provided the action be brought w ithin one ye a r after hij jjeath. / Notwithstanding, however, the statutory exceptions above noticed, to the general rule which was recognized by the common law, this rule still applies where a tort is committed to a man's person, feelings, or reputation, as for assault, libel, slander, or seduction of his daughter : in such cases no action lies at th3 suit of the executors or administrators, for they re present riot_go mucl i the person as the personal estate , of the testator or intestate, of which they are-in law the assignees. As to executors and administrators suing when death is caused to their testator or intestate by the wrongful act of another, see 9 & 10 Vict. c. 93, andjoos<, tit. Torts, &c. : (Broom's Leg. Max. 702 to 708, 2nd edit.) Q. — State the forms of actions founded on tort, and state what is the gist of each action. A. — The forms of actions founded on tort are the following : — 1. Tres- pass. 2. Case. 3. Trover. 4. Detinue. 5. Replevin. 6. Ejectment. The gist (or foundation — see Holth. Law Die. 2nd edit.) of the action of trespass is the immediate violence with which the injury is accom- panied ; case, the consequential injury resulting from the tort : trover, the wrongful conversion of goods and chattels ; detinue, the wrongful deten- tion ; replevin, the illegal taking and detaining of goods and chattels ; and the gist of ejectment is the improper withholding of land : (see 3 Steph. Com. 448, et seq. 3rd edit.) Q. — State the distinction between actions of contracts and of torts. A. — Personal actions are founded either on contracts or torts, a term used to signify such wrongs as are in their nature distinguishable from breaches of contract ; and these torts are often considei-ed as of three kinds, viz., nonfeasance, or the omission of some act which a man is bound to do ; misfeasance, being the improper performance of some act ■which he may lawfully do ; or malfeasance, being the commission of some act which is unlawful. The action of trespass or of case is founded on tort; while covenant or debt is founded on contract : (3 Steph. Com. 452, 3rd edit. ; Paterson and Mac. Com. LawPract. 68.) Q. — What is the meaning of a local and of a transitory action? and what actions are local and what transitory ? A. — Local actions are founded on such causes of action as necessarily refer to some particular locality, as in the case of trespass to land ; while transitory actions are founded on such causes of action as may be supposed to take place anywhere, as in the case of trespass to goods. Real actions are always in their nature local ; personal actions are, for the most part, transitory. And there is also this important distinction between them — local actions must (unless otherwise specially ordered bjr Digitized by Microsoft® COMMON LAW. 7 , the court or a judge) be tried in the county in which the cause of action arose, and by a jury of that county ; while transitory actions may be tried in any county, at the discretion (in general) of the plaintiff : (see 3 Staph. Com. 463, 1st edit. ; 454, 465, 3rd edit.) Q. — State what actions of common law are founded on contract, adding whether they are respectively local or transitory. A. — The actions of assumpsit, debt, and covenant are founded on contract, and are transitory actions : (Smith's Action at Law, 46, 97, 5th edit. ; 3 Steph. Com. 46l^t seq., 3rd edit.) The actions of account and annuity are also founded on contract, but the former is almost, and the latter quite, obsolete : (Smith's Action at Law, 46, 5th edit.) Q. — ^Is it compulsory on a defendant to set-off his claim against the plaintiff's demand in an action brought by the plaintiff? or can he bring his action for the amount of his set-off? A. — ^It is not compulsory on the defendant to set-off his claim against the plaintiff's, but it is generally advisable for him to do so. He may, however, bring his action for the amount of his set-off ; (^Baskwell v. Browne, 2 Burr. 1229.) Q. — Jones and Wilkinson bring an action against Bennett to recover 100/. due from him to them jointly. "Wilkinson alone owes Bennett 50/. Can Bennett set-off this 50/. in the action against him ? and if not, why not? A. — If Jones and Wilkinson bring an action against Bennett to recover 100/. due to them jointly, and Wilkinson owes Bennett 50/. Bennett cannot set-off this debt of 50/. against the joint debt sought to be recovered against him because the debts are not mutual, which is one of the essentials necessary to set-off one debt against another : (see Arch. N. P. 124.) Q. — What sort of counter claims can be set-off in actions between the same parties in actions of contract, and what cannot? A. — They are the following :-^The debts must be mutual ; the subject of set-off must be a legal and not a mere equitable debt, or claim sound- ing in damages, and the debt must be subsis ting.; ther efore a debt which i3_ Jbarred by the Statutes of Lim it ations can not be set-off ; and the (iebt must be actually due and payable at the commencement of the action : (see 2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24 ; Arch. N. P. 122 to 126.) THE LAW OF CONTRACTS. Question. — How many descriptions of conT;racts are there ? Answer. — There are three. 1 . By matter of record. 2. Under seal. 3. Simple contracts, that is, not under seal. Q. — What is the difference between simple contract and specialty debts ? A. — Simple contract debts are such as are not under seal, nor does the obligation arise by matter of record, but by writing, not under seal, or by mere oral evidence. Specialty debts are such as have become due by matter of record, or by instrument under seal. Another difference between simple contract and specialty debts is, that the former are not Digitized by Microsoft® EXAMINATION QUESTIONS AND ANSWERS. valid unless founded on a sufficient consideration, and do not, when in writing (with the exception of bills and notes), import a consideration. But where a security is under seal, it is binding on the party executing it, although there be no consideration for making it : (2 Steph. Com. ch. v., 3rd edit. ; Smith's Mercantile Law, 267, 5th edit.) Another difference is, that in administering legal assets a specialty debt has priority over a simple contract debt: (Matthew's Guide to Exors. & Adms. 164, and note, 2nd edit.) Q. — What is an executory contract ? A. — An executory contract is one that is to be executed at a future time, as if A. and B. agree to exchange horses next week ; in such Case the right only vests, the property not being in possession, but in action only : (2 Steph. Com. 3rd edit.) Q. — How are contracts divided with reference to evidence ? A. — This question is somewhat ambiguously framed. Contracts with respect to evidence may be said to be divided into contracts in writing and contracts not in writing, and as to contracts in writing, those which are under seal and those not under seal. It is a rule that parol evidence cannot be received to contradict, vary, add to, or subtract from the terms of a valid written instrument. Also, that a deed, — that is, a writing under seal, — cannot be altered, or the liability created by it lessened or discharged, by an instrument under hand only, or by any subsequent contract in writing not under seal : (see Addison on Cont. 388, &c., 4th edit.) Q. — Is an infant liable for any debts ? and if so what debts ? A. — An infant is liable for necessaries supplied to him, as meat, drink, apparel, medicines, and other necessaries suitable to .his statipn in life : (Co. Lit. 172, a. ; 2 Steph. Com. 115; Chitty on Cont. 136, 4th edit.) Q. — Is there any, and what, restriction to a husband's liability for the debts of his wife contracted before marriage ? A. — ^A husband during the continuance of the marriage is liable jointly with his wife upon all the contracts entered into by her before the mar- riage, however improvident ; and the circumstance of his having no fortune with her does not make any diflference. But upon her death he is no longer liable as husband ; and unless he administer (in respect to choses in action not reduced into possession in her lifetime) he cannot be sued at all ; if he administer, however, he will be liable to the amount of the sums received by him on account of the choses in action, but not further, even though he received a large property with the wife. Q. — When is a husband liable for the debts of his wife contracted during coverture, and in what cases is he not liable ? A. — A husband is bound to maintain his wife, and is liable for her contracts made for the sole purpose of supplying herself with neces- saries suitable to her station in life, upon the principal of her being his agent, though not binding upon herself : (Broom's Legal Maxims, 663, 2nd edit.) For if they be living together, his consent to such contracts will ordinarily be presumed, though this presumption may be repelled by special circumstances, as by notice to the particular tradesman not to trust her, or if the order be excessive in point of-extent, and such as the husband would not have authorized : {Montague v. Benedict, 3 B. & C. 634.) And he is in general liable on her contracts for necessaries, not only while they are living together, but even after a separation, if no pro- Digitized by Microsoft® COMMON LAW. 9 vfsion be made for her; for the tradesman is then considered (even though he has notice not to trust her) as standing in her place, and as enforcing indirectly her right to be maintained. But the husband is not liable for money lent to (he wife to purchase necessaries. So, if the wife departs ffom her husba nd against his win, _and_ withou t _s ufl5cient^ xcuse, arising from his illtreatmen t. or if she is dismissed by him fo r adultery , the husband incurs no such liability. So^if hugband_ and w ife ar£-liying ^ se parate and ap art, and the husband allowT^r^a sufficient sum for JheK.. maintenance, which is regularly paid^ this is sufficient to repel the infer- ence of agency, and he is not liable for any debt she may contract ; and it is not necessary that there should be any deed of separation ; but the allowance must be such as the jury shall think sufficient ; reference being h|id to the station of the parties, and the income of the husband : (Holder v- Cope, 2 Car. & K. 437.) It is immaterial whether the tradesman knew of such allowance or not. And if a wife living apart from her husband orders goods to be sent to a third person, and they be so sent to the house of such third person, that not being the abode of the wife, the husband is not liable to pay for the goods : (Reeve v. The Marquis of Conyngham, 2 Car. & K. 444 ; and see generally, 2 Steph. Com. 250 to 252, 2nd edit.) Manby v. Scott, 1 Lev. 4 ; S. C, 1 Sid. 109 ; Montague V. Benedict, 3 Bar. 8s C. 631 ; Seaton v. Benedict, 6 Bing. 28, are the leading cases on the subject of the husband's liability. Q.-^What rights as to property have been conferred by recent legisla- tion upon wives deserted by their husbands, and how may, they be secured ? A. — By sect. 21 of the Divorce Act, a wife deserted by her husband may, at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or if resident in the country, to justices at petty sessions, or in either case to the court, fo r an order to pr otect any money or property she may acquire by her own industry, and property she becom e s possessed of after such desertion, against her hus- band and his creditors, or persons claiming under him ; and if such magistrate, justices, or the court be satisfied of the fact of desertion, and that it was without reasonable cause, and that the wife is maintaining herself by her own industry or property, an order may be made pro- tecting her earnings and property acquired since the desertion, from the husband and all creditors and persons claiming under him, and su ch- f M-nings and property belong to t bft wi^^ as if »^» -wcvp. a feme snle. The order must, if made bya police magistrate, or justices at petty sessions, be entered within ten days after the making, with the registrar of the County . Court within whose jurisdiction the wife is resident. The husbaitd may, however, apply to have the order discharged. If the husband, or person claiming under him, seizes and continues to hold property of the wife after notice of the order, he is liable at the suit of the wife to restore the property, and also for a sum double the value of the property so seized or held after such notice. During the continuance of the order the wife is considered, in all respects, as ajfeme sole : (20 & 21 Vict. c. 85 ; and see 30 L. T. 248.) Q. — Name the contiracts required by the 4th section of the Statute of Frauds to be in writing. A. — ^In the following cases the 4th section of the Statute of Frauds requires that there shall be some note or memorandum of the agreement in writing, signed by the party to be charged therewith, or some other Digitized by^Wlicrosoft® 10 EXAMINATION QUESTIONS AND ANSWERS. person thereunto by hira lawfully authorized, before any action can be brought upon the agreement : — I. Where an executor or administrator promises to answer damages out of his own estate. 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made upon consideration of marriage. 4. Where any contract is made of lands, tenements,. or hereditaments, or any interest therein. 5. Where there is any agreement that is not to be performed within a year from the making thereof: (29 Car. 2, c. 3, s. 4.) Q. — What is the nature of a guarantee ? A. — A guarantee is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who is himself in the first instance liable to such payment or perform- ance : (see Smith's Merc. Law, 438, oth edit.) Q. — Describe the legal incidents of a guarantee. A. — The guarantee must be in writing and signed by the party to be charged, or his lawful agent ; otherwise it cannot be sued upon (29 Car. 2, c. 3), and there must be a consideration and a promise. The consider- ation, however, need not appear in the writing (19 & 20 Vict. c. 98, s. 3), i as was formerly necessary in accordance with the Statute of Frauds : (see Smith's Merc. Law, tit. " Guaranties," 5th edit., and post.') Q. — Must a guarantee for a third party be in writing, or will a verbal promise be sufficient ? A. — It is provided by the Statute of Frauds that no action shall be brought to charge the defendant upon ahy special promise to answer for the debt, default, or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorized. As will be seen, this section prevents a verbal guarantee from being sued upon; though it is to be observed, that if money have been paid in pursuance of it, that money cannot be recovered back. And if a party admit that he has made a binding guarantee by paying money into court on a count charging him with it, that renders proof of a written instrument unnecessary : (see Smith's Merc. Law, 438, 5th edit.) Q. — In a guarantee on behalf of a third person must any consideration be stated, and how, and of what kind should it be ? (a) A. — In a guarantee on behalf of a third party formerly a consideration must have appeared in the writing ; but by the 19 & 20 Vict. c. 97, it is enacted that no special promise to be made by any person to answer for the debt, default, or miscarriage of another being in writing shall be deemed invalid to support an action, &c., to charge the person signing the, promise by reason only that the consideration for such promise does not appear in the writing, or by necessary implication from a written document : (see sect. 3.) As to the kind of consideration, in general any act of the nature of a benefit to the person promising, or any act which is a detriment to him to whom the promise is made, is sufficient. It was sufficient however, formerly, if the consideration could be gathered wholly from the whole tenor of the Writing ; not that a mere conjecture, (n) This question has also been asked in the following form : — Must a contract to pay the debt of another be in writing ? and must the consideration be expressed on the face of the instrnment ? Digitized by Microsoft® COMMON LAW. 11 however plausible, would be sufficient to satisfy the statute, but there must have been a well grounded inference to be necessarily collected from the terms of the memorandum ; (see Smith's Merc. Law, tit. " Guarantees," 5th edit.) Q- — Should you advise that an action would lie upon the following guarantee : — To A. B. I agree to pay for whatever goods you shall sell to C. D., in case of his making default in the payment thereof. E. F. ? ■^- — There being a consideration and a promise I should advise an action to be brought : (see Smith's Merc. Law, u( supra.) Q. — WiU a moral obligation be sufficient to support an express pro- mise where no legal liability ever existed ? ■^' — ;No ; courts of law do not take upon themselves to enforce moral obligations where no legal liability ever existed : (see 1 Arch. N. P. 77, and the authorities there cited.) Q. — State some of the most prominent rules by which contrasts not under seal are to be construed. -4. — They are the following : — A contract not under seal must be made upon a cjnfixidp.rff.ti/in. ; that is, there must be some compensation or quid pro quo to be reciprocally affiarded by the promisee, or it will be a nudum pactum, on which no action will lie ; but any degree of reci- procity, whether in the way of benefit bestowed by the promisee or disadvantage sustained by him, will prevent the pact from being nude, adequacy of consideration not being entertained generally. And if either the consideration or the promise founded upon it is ttletial (whether as contrary to the express provisions of the law or against i!s policy), or of an imnioxal or fraudulent character, the contract is utterly void and of no eflfect. Another rule is, that the consideration of a promise must mov e from the promisee^; i. e., it must be an act to be performed on his part or by his procurement, and not on the part or by the pro- cu rement of a stranger. The contracts of infants and insane persons are not binding, except ior necessaries suitable to their station in life ; but an infant may confirm his contracts on attaining twenty-one. Neither can a married woman in general contract, though she may to a certain extent bind her husband: (see 2 Steph. Com. 49, ' e< seq. 3rd edit. ; Broom's Max. 583, et seq. 2nd edit) Q. — State some of the maxims by which contracts are expounded. A. — The following are some of the maxims by which contracts are ex- pounded : — Oral testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written contract. But oral evidence may, in all cases of doubt, be received to explain a written instrument ; as where the language of the instrument is susceptible of , two or more meanings. No deed can be altered or the liability created by it be lessened or discharged by an instrument under hand only, or by any subsequent contract in writing not under seal. As above stated, a contract not under seal must have a consideration to support it; but where a security is under seal it is binding on the party executing it, although there be no consideration for making it : (see Addison on Cont. 888, et seq. 4th edit.) Q. — When the Statute of Frauds requires an agreement to be in writing, is it necessary that the consideration should appear on the agree- ment, or may it be supplied by parol testimony ? Digitized ISy^icrosoft® , 12 EXAMINATION QUESTIONS AND ANSWERS. A. — The following agreements required by the Statute of Frauds to be in writing, must disclose the consideration for the promise or agreement : — A special promise by an executor or administrator to answer damages out of his own estate ; an agreement made upon consideration of mar- riage ; a contract of sale of lands or hereditaments or any interest in or concerning them ; an agreement that is not to be performed within one year from the making thereof ;/and prior to the 19 & 20 Vict. c. 97, also a special promise to answer for the debt, default, or miscarriage of another ; and the omission to state the consideration cannot be supplied by oral testimony.) So the memorandum of a bargain for the sale of goods must state the price to be paid, if the price was fixed at the time of the making of the contract ; but if no price was definitely fixed the memoran- dum of sale wiU be sufficient in the case of a chattel, without any state- ment of price, and the law will infer that a reasonable price was to be paid : (see Addison on Cent. 41, 42, 4th edit.) Q. — Can you question the legality of a consideration to a contract under seal ? A. — Although, as a general rule, a contract when under seal is binding on the party making it, whether there be a consideration or not, yet all deeds are liable to be impeached if founded on illegal or immoral con- siderations, or if obtained by fraud : (see 1 Steph. Com. 462.) Q. — A. B., in the presence of a witness, makes a representation con- cerning the character of a third party, upon which credit is given to the latter ; such representation proving false, can an action be successfully maintained against A. B. ? A. — ^No ; ft>r by 9 Geo. 4, c. 14 (commonly called Lord Tenterden's Act), it is enacted, " that no action shall be brought to charge any person, by reason of any representation or assurance made or given con- cerning or relating to the conduct, credit, ability, trade, or dealings of any other person, to the intent or purposes that such other person may obtain credit, money, or goods upon, (a) unless such representation or assurance be made in writing signed by the party to be charged therewith." Q. — In what way, other than by a memorandum in writing, can a person render himself liable for the debts of another ? A. — Where sl third person accompanies another who orders goods which the seller refuses to give the latter credit for, and the third party promises to pay for them, his verbal promise is sufficient to render him liable ; the goods being in fact sold to the third party, although delivered to the Other. But if the party who orders the goods be treated by the seller as the debtor, a verbal promise by a third party will not render him liable. The question is, to whom was credit given ? and this must in general be decided by a jury : (see Smith's Mercantile Law, 443, 5th edit.) Q. — How should a person who has delivered goods to a common carrier to carry and deliver, but which have not reached their destina- tion, proceed for the recovery of damages ^ A. — The ordinary remedy against a common carrier for damages for loss or injury to goods, is either by action of assumpsit or on thejjasej or detinue . may be brought ; and where the carrier has been guilty of a (a) Sic in the statute. Digitized by Microsoft® COMMON LAW. 13 misfeasance which amounts to a conversion, trover may be maintained : (1 Arch. N. P. 59, 393, 538, 576.) Q. — State the instances, if any, in which a carrier is not liable for the loss of goods entrusted to him, and for what losses he is liable. A. — A common carrier is not liable for a loss arising from the act of God,, or of the Queen's enemies. In other cases, even his entire fault- lessness does not excuse him : thus, he is liable for damage done by acci- dental fire or by a robbery. The stat. 1 "Will. 4, c. 68, s. 1 , however, protects a common carrier by land from being liable for any loss or injury to any gold or silver coin, gold or silver in a manufactured or unmanufactured state, precious stones, jewellery, watches, clocks, notes, bills, title deeds, pictures, glass, &c., contained in any parcel, where the value exceeds the sum of 10/., unless at the time of the delivery to the carrier their value and nature be declared, and an agreement made to pay the extra charge for them, as provided by sect. 2 of the above act. By sect. 5 every , oflSce of such common carrier shall be deemed a receiving house for the purposes of the act. This act does not protect any common carrier from liability to answer for losses or injury arising from the felonious acts of any servant in his employ. And special agreements are not affected by this act : (see Smith's Merc. Law, 285, ef seq. 5th edit.) Carriage by railway is governed by the Railway and Canal TraflSc Act (17 & 18 "NJict. c. 31), which provides that the company shall be liable for loss or injury to any goods occasioned by the neglect or default by the company or its Servants, notwithstanding any notice, condition, or declaration by such company contrary thereto, or in anywise limiting their liability. But they may limit their liability by express condition, to be approved of by the judge who tries the cause. It is also declared that no greater sum shall be recovered for a horse than 50/. . meat cattle per head, 15/., sheep and pigs, 21. per head, unless when such cattle are delivered to the company they are declared to be of a higher value, in which case a higher rate of duty may be charged for carriage. Special agreements are not affected by this act. So the stat. 1 Will. 4, c. 68, applies to railways. Q. — ^The property of a traveller at an inn is stolen by some person unknown, without any imputation of connivance or neglect in the land- lord or his servants. Is the landlord liable to make good the loss ? A. — ^Yes ; for the rule as to the liability of an innkeeper is, that he is responsible for the goods and chattels brought by any traveller to his inn, in the capacity of guest there, in every case where they are lost, stolen, or taken by robbery, except where they are taken by the Queen's enemies, or are stolen by the traveller's owil servant, or companion, or from his own person, or from a room which he occupied otherwise than as a mere guest, or from his own gross negligence : (see Caly^s case, 8 Eep. 32; 1 Arch. N. 'P. 100, 574.) It has been decided that an hQtel;keep£i;.is an innkeeper so as to be liable for a loss of goods. It has also been held that a house of public entertainment in London, where beds, provisions, &c., are furnished for all persons paying for the same, but which was merely called ataver n and coffee-house, and was not frequented by stage coaches or waggons from the country, is to be considered as an inn, and the owner subjected to the same liability as innkeepers : (Thompson v. Lacy, 3 B. & Aid. 283.) Q. — ^Where a traveller is preparing to depart from an inn without paying his bill, may the landlord detain either his person or baggage until payment ? Digitized by Microsoft® 14 EXAMINATION QUESTIONS AND ANSWERS, ^.^-An innkeeper cannot detain the person of his guest until pay- ment of Ms bill, but he has a lien on goods intrusted to his charge by his guest, and may detain them, though they belong to another: (see Smith's Merc. Law, 535; and note (/), 5th edit.) Q. — ^A traveller on his journey stops at an inn, and- desires to put up fpr the night ; the landlord, although he has room in Ws house, refuses to receive him. Is or is not the landlord warranted in so doing ; and if not, has the traveller any and what remedy against the landlord for such refusal ? A. — An innkeeper is bound to receive a traveller into his house, and to find him with reasonable accommodation upon his tendering him a reasonable price for the same ; and if he fail therein the traveller or guest may have his remedy by an action on the case : (1 Arch. N. P. 100, 574 ; Chitty on Cont. 414, 4th edit.; and see Fell v. Knight, 10 L. J. 277, Ex.) Q. — ^In an action on the warranty of a horse, would an implied war- ranty be suflScient upon which to maintain an action ? Does a sound price amount to a warranty ? A. — An implied warranty would not be sufficient to maintain an action, it musfjje an express one ; but if there be no express warranty, and'a d eceit is knowingly practised on the purchaser, the seller would be liable to an action on the case. A sound price does not amount to a warranty : (see Smith's Merc. Law, 489, et seq. 5th edit. ; 2 Steph. Com. 67, 2nd edit.) Q. — Describe the nature of a chose in action. A. — A chose in action is a phrase which is sometimes used to signify a right of bringing an action, and at others the thing itself which forms the subject matter of that right, or with regard to which that right is exercised. But it more properly includes the idea, both of the thing itself, and of the right of action as annexed to it. Thus, money due on bond is a chose in action ; for a property in the dgbt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law : (see 2 Stepli. Com. 11, 2nd edit. ; Holth. Law Die. 2nd edit.) Q. — A. enters into a bond to B. in the penal sum of 1000/. conditioned for payment of 5001. and interest ; B. assigns the bond to C. A. does not pay his bond, and it becomes necessary to sue him. In whose name should the action against A. be brought ? and state the reason for your answer. A. — The action must be brought in B.'s name ; for the bond is a chose in action which, with the exception of bills of exchange and promis- sory notes, and assignments by operation of law, as bankruptcy and insol- vency, cannot be assigned at law. But such assignments are recognised in equity : (2 Steph. Com. 39, 2nd edit.) Q. — What is a bond ? Describe a common money bond. A. — A bond or obligation is a deed whereby a person binds or obliges himself, his heirs, executors and administrators, to pay a sum of money or do any other act within a certain time. There is usually also added what is termed a condition, which is simpljf a statement of the condition which the obligor subjects himself to in the bond to which it is annexed : (Holth. Law Diet. ^"^^^^^d^^^j^f^fQ^^V bond acknowledges that COMMON LAW. 15 the obligor is bound to the obligee in double the amount of the debt. The condition states that on payment of the sum really due, with interest, on a certain day the bond is to become void. Q. — A gentleman is in the habit of sending his servant to a shop and receiving goods on credit : the servant misapplies some of the goods to his own use. Has the seller a remedy for the value of the goods so misapplied against the master ? The same servant also obtains goods on credit in his master's name, of a tradesman who had never before had dealings with the master, and takes the goods lo his own use. Can the tradesman recover the value against such master ? A. — In the first case put the master is liable, and the seller may have his remedy for the value of the goods against him ; for he who accredits another by employing him, must abide by the effects of that credit ; since, where one of two innocent persons must suffer by the fraud of a third, he who enabled the third person to commit the fraud, must be the sufferer. In the second case the master is not liable, he having given the servant no power to contract on credit, either express or implied : (see Smith's Merc. Law. 134, 135, 5th edit.) Q. — Must a contract to purchase a horse be in writing ? How would it be if a warranty were given with the horse : must that be reduced to writing ? A. — If the price paid for the horse is \0l. or upwards the contract must be in writing, for it falls within the 1 7th section of the Statute of Frauds ; which enacts that no contract for the sale of any goods, wares, or merchan- dise for the price of \Ql. or upwards shall be allowed to be good except the buyer shall accept part of the goods sold, and actually receive the sam?, or give something in earnest to bind the bargain or in part pay- ment, or that some note or memorandum of the same bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised : (29 Car. 2, c. 3, s. 17.) It is not neces- sary that a warranty should be in writing ; but if there is a contract in writing the warranty as to "soundness should be stated : (see Smith's Mere. Law, 489, et seq. 5th edit.) Q. — A servant's wages are payable quarterly, and have been paid to Lady-day, 1844. Between Lady-day and Midsummer, 1844, namely, on the first of May, the servant misconducts himself, and for such mis- conduct is turned away by his master without warning. Is the servant entitled pro rata to wages from Lady-day to May ? A. — ^No ; and the master will be justified in taking this step by any exhibition of moral turpitude on the part of the servant, ex, gr., an assault on a maid-servant, or the persuasion of an apprentice to elope, or by a refusal to obey his lawful orders : (see Smith's Merc. Law, 409, 5th edit.) Q.— What is the law as to the payments of the debts of relations and third parties ? A. — The law is the same ; a person being a relation does not entitle him to any preference. Q. — What is the meaning of a del credere commission, and what liability does a factor incur by the receipt of a del credere commission ? A. — The name del credere commission has been taken from an Italian mercantile phrase signifying guarantee, and by which the factor for an additional premium beyond the usual commission, when he sells goods on credit, becomes bound to warrant the solvency of the purchaser. It was Digitized by Microsoft® 16 EXAMINATION QUESTIONS AND ANSWERS. at one time thought that the agent acting under a del credere commission was liable to his principal in the first instance, but it is now settled that he is only a^jurety, liable in case of the default of his buyers : (see Smith's MercTEaw, 129, 6th edit.) Q. — Explain briefly the terms charter party, general average, stop- page in transitu. A. — Acharter party is an instrument commonlycalled among merchants and seafaring men a pair of indentures, and contains the covenants and agreements made between them concerning their merchandise and mari- time affairs : (Holth. Law Die. 2nd edit.) Or it may be more briefly ex- plained to be the instrument of freightage, or articles of agreement for the hire of a vessel. General average is a term used in maritime commerce to express the contribution made by the owners of a ship, and the proprietors of goods on board, to those persons who, for the preservation of the ship and for the goods and lives on board have sacrificed their own property by casting it into the sea : (Holth. Law Die. 2nd edit. ; I Paris Ins. 160, et seq.) Stoppage in transitu is that right which the law gives the vendor in certain cases to reclaim goods previously sold while on their way to the purchaser. This right arises where the goods having been sold on credit the vendor ascertains, before the goods reach the pur- chaser's hands, that he has become insolvent or bankrupt : (Smith's Merc. Law, 524, 5th edit.) Q. — What will constitute a partnership with regard to third parties ? yl.— -Where two or more persons agree to combine property or labour for the purpose of a common undertaking and the acquisition of a common profit, they are partners liable to third parties. And they jrill all be liable to third parties, even though one of them may, asjjetween them- selves, stipulate to be.fr-ee from laas- And a man may, withpiit_entejTpg ijito any contract, impose on himself the liabilities of a partner with regard to third persons ; for if any one lends his name and credit to a firm, and, as the phrase -is, holds himself out to the world as a partner therein, he is liable for its engagements, ajid that whether he has any real interest in the firm or not : (see Smith's Meic. Law, 1 9, 23, 5th edit.) Q. — State the general rules regulating the liability of partners for the acts of each other. A. — It is a general rule that each partner is liable for the acts of the other partners. Thus, one partner may bind the firm by simple contract relating to the partnership, either in the way of sale, purchase, pledges, assignment, loan, or by any other acts, which are ordinarily incident to the trade or business; as, by bill or note, or receipt; and may even give a valid release by deed, but he cannot in other cases bind the firm by deed unless he have express authority by deed for that purpose, nor by submission to arbitration. So, in some cases of tort by one partner, the others would be liable, as, damage done by running down a ship. But in no cases of fraud will the acts of one partner bind the others where there is collusion between him and the party with whom he deals. And, as an entire firm may be bound, so it may be discharged by the transactions with a single partner : thus, payment or satisfaction of a debt by one partner is pay- ment or satisfaction by them all, so a release or discharge to one is a release to all : (see Smith's Merc. Law, tit. " Partners," 5th edit.) Digitized by Microsoft® COMMON LAW. 17 BILLS OF EXCHANGE, PROMISSORY NOTES, AND CHEQUES. Question. — ^Define a bill of exchange. Answer, — ^A bill of exchange is a written order from A. to B., direct- ing B. to pay to C. or A., or his order, a sum of money therein specified. A. is caUed the drawer (and when payable to him or his order also payee); B. the drawee, and when he accepts the acceptor, and C. the payee. Q. — Define a promissory note. A. — ^A promissory note is a promise or engagement in writing to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named or to his order, or to the bearer. The. person who signs the note is called the maker: (see Byles on Bills.) Q. — Define a cheque. What is the effect of " crossing" a cheque ? A. — A cheque is in effect a bill of exchange drawn on a banker, pay- able to bearer on demand. The effect of crossing a cheque is to make it payable only to or through some banker : (see 19 & 20 Vict. c. 25.) Q. — Describe the parties to a bill of exchange, and state their relative liabilities. A. — The parties to a bilj of exchange are, as above stated, the drawer, to whom the- amount of the bill is owing from the party to whom it is addressed, called the drawee, before acceptance, but- after' he has accepted he is termed the acceptor, and the- person to whom the money is to be paid, is called the payee, who may be either the drawer or a third party. There are generally also, that is, when the bill is made payable to order, other parties, who are indorsers of the bill, the holder in such case being the indorsee. The acceptor is primarily liable, and is the principal, all the other parties being merely sureties for him, liable only on his default. But though all the other parties are in respect of the acceptor sureties only, they are not as between themselves merely co-sureties, but each prioi" party is a principal in respect of each subsequent party : (Byles on Bills, c. 1 ; Smith's Merc. Law, 208, &c., 5th edit.) A person indorsing a bill undertakes the payment thereof, and is considered as a new drawer, unless he qualify his indorsement, as by adding the words "sans recours," or without recourse to me ; which is the proper mode of indorsement by an agent : (Byles on Bills ; Smith's Merc. Law, 5th edit.) Q. — ^Is there any difference in the extent of the liability of an acceptor of a bill of exchange as between himself and third parties, and as between himself and the drawer ? A. — In ordinary cases there is no difference in the extent of the liability of an acceptor as between himself and a drawer, and himself and third parties. For, as already seen, the acceptor; is the p afty pxi^yi marily liable to pay the bill in both cases ; though MjEa-Ettermeother ' parties to the bill may likewise be liable : (see Byles on Bills, 182, 183, 4th edit.) I^ however, there has been no consideration for the accept- ance, then the acceptor is not liable to the drawer, though he is to parties who took the bill bona fide and paid a valuable consideration for it. So the acceptor may, as against the drawer, but not as against bona fide holders for value, show a partial want of consideration, and the drawer Digitized by Wicrosoft® 18 EXAMINATION QUESTIONS AND ANSWERS. shall only recover to the extent of the real consideration : (see Smith s Merc. Law, 267, 268, 5th edit.) (a) Q. — If the acceptor of a bill of exchange refuse payment of it when due, is any and what step necessary before you can sue the drawer or indorser ? A. — Yes ; notice of such refusal (or, as it is called, notice of dishonour) must immediately be given to any party to it, to whom the holder wishes to have recourse. There is no particular form of notice, yet it must impose in express terms, or by necessary implication, that the bill or note has been dishonoured ; the notice should also ascertain the instrument ; but an inaccuracy in the description of it, by which the party cannot be misled as to the bill intended, is immaterial : and so is an error as to the place where the bill is lying. A written notice is not essential : (Smith's Merc. Law, 251 to 2.57, 5tl^ edit.) Q. — Within what time ought notjce of the dishonour of an inland bill accepted for value to be given to tl^e drawer or indorser by the holder? A. — Where the holder and the party to whom notice is addressed live at different places, it is sufficient to send off notice onjhe day wext after the day fl Ldishonom. Where both the parties live in the same town, or where they live in London, notjca.mHSt-be_giyeninJim£-to tie reneived in the co urse of the day f ollowing the day ot dishonour . A person 'receiving a notice of dishonour need not transmit the notice to anterior parties until the next post aft e r the day o n^which^e receives notice : (see Byles, on Bills, 2 1 3 to 2 1 3, 4th edit. ; Smith's Merc. Law, 258, Sth edit.) Q. — A. tates a cheque of B. on his bankers, and cannot, without some inconvenience, present it for payment until some days after; and when he does so, finds that the bankers have stopped payment in the meantime. Can he recover the amount afterwards against B. ? A. — If a cheque be payable at a banker's in the place where the party receives it, it should be presented for payment during banking hours on the day after it is received. If it be payable elsewhere, it suffices to forward it by the regular post on the day after it is received ; and the party receiving it by post, has till the next day to present it ; if this be not done, and the banker fails, the party guilty of the negligence will have to bear the loss : (Smith's Merc. Law, 248, Sth edit. ; Byles on Bills, 12, 13, 4th edit.) Q. — A promissory note is made payable to a woman before her mar- riage. She afterwards marries, and the husband dies, leaving her surviving. Can she bring an action upon the note ? A. — If the note is not recovered upon in their joint lives it reverts to the woman, and she may bring an action upon it. The note is a chose in action, and as such, if not reduced into possession in their joint lives, goes to the woman if she survive her husband, or to the husband as her administrator, if he survive : (see Byles on Bills ; Smith's Merc. Law, 222, Sth edit. ; Matthews' Guide to Exors. 44, 2nd edit.) Qi — 'A promissory note is made payable to a husband and wife, and the husband dies before it is paid, his wife surviving him. Can she maintain an action upon it ? A. — It seems the widow may sue for the amount of the note : (see (a) The following question may be easily answered from this and the next preceding answer : — Which of the parties to a bill of exchange is primarily liable to pay it, and how is this liability affected by' the bill being accepted for accommodation ? Digitized by Microsoft® COMMON LAW. 19 Byles on Bills ; Smith's Merc. Law, supra, and the authorities therein cited.) Q. — A client brings an over-due bill of exchange to his attorney: Kive a detailed account of the steps that must be taken to enforce pay- ment, and suggest any diflSculties occurring to you that may arise as to its recovery; also some of the different ways in which the client might be holder. A. — The attorney should first inquire whether proper notice of dis- honour has been given ; if such notice has not been given and one is requisite, and the time for giving it has not elapsed, the attorney should give the notice. To enforce payment an action must be brought, which is done by the attorney suing out a writ (as to which see stat. 18 & 19 Vict. c. 67), and proceeding thereon to judgment and execution. As the bill is over-due, the attorney should inquire of his client whether he took it previously or subsequently to its becoming due ; for if the client took it subsequently to its becoming due, he will hold it subject to all the equities attaching to the bill : (see Smith's MerC. Law, 251 to 255, 270, 5th edit.) The client may be holder of the bill as drawer (being also payee), or as payee (not being the drawer), or as indorsee. Q. — ^In an action brought under the 18 & 19 Vict. c. 67 (the Act to_ facilitate the Remedies on Bills of Exchange and Promissory Notes by the prevention of frivolous or fictitious defences to actions thereon), against the acceptor of a bill of exchange, who has not paid the bill when due, can the defendant appear and plead as in other actions; and if not, what steps must be taken to enable him to do so ? A. — In an action on a bill of exchange commenced under this act within sixjB onths of its becoming due, the defendant cannot appear and plead as in other actions, but he must, within twel ve days after being served with the writ, either pay the debt iiito court, or apply to a judge for leave ^to appear an j_2leadijhowijng_j3y— affidavita, legal or equitable d^ncfi, or 8uch_fact3^gjwouldjna ke it incumbent o n_the_holder_ta_pra?e consideratifin, or other facts satisfactory to the judge, who may then make an ord er o n terms_jsJo„S!a;urily_Qr_athfirwiae : (18 & 19 Vict. c. 67.) Q. — What is the proper mode of suing on a bill of exchange or pro- missory note with respect to indorsing the writ of summons, the time for signing judgment for want of appearance, and obtaining leave to appear and defend ? A. — The proper mode of suing on a bill of exchange or promissory note is under the 18 & 19 Vict. c. 67. But actions under this act must be commenced within six months after such bill of exchange or promissory note becomes due and payable. The writ is indorsed with the name and address of the attorney suing out the same, or with that of the plaintiff if he acts in person. The amount claimed by the plaintiff must also be indorsed on the writ, and a copy of the bill or note set forth; the amount claimed "for costs, as also a notice stating that if the amount be paid to the plaintiff or his attorney within four days from the service, further proceedings wiU be stayed, must also be indorsed thereon. Also a notice stating, that if the defendant do not obtain leave from one of the judges of the superior courts within twelve days after having been served with the writ, inclusive of the day of service, to appear thereto, and do not within such time cause an appearance to be entered for him in the court out of which the writ issues, the plaintiff will be at liberty Digitized by>N!^crosoft® 20 EXAMINATION QUESTIONS AND ANS-WERS. at any time after the expiration of such twelve days, to sign final judg- ment for any sum not exceeding the sum above claimed, and the sum of £ for costs, and issue execution for the same. Leave to appear is obtained from a judge at chambers ; the application being supported by affidavit showing that there is a defence to the action on the merits, or that it is reasonable that the defendant should be allowed to appear in the action : (see Paterson and Macnamara's Com. .Law Pract. 997, 998, where a form of writ is given.) Q. — In an action on a bill of exchange, how can th^ plaintiff prevent the defendant from setting up the loss of the instrument ? A. — By the Common Law Procedure Act, 1854, it is now provided that in actions founded on a biU of exchange or other negotiable instru- ment, it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided that an indemnity is given to the satisfaction of the court or judge, or a master, against the claim of any other person upon such negotiable instrument: (17 & 18 Vict, c. 125, s. 87.) If the bill or note was not originally negotiable, the loss of it is no defence to an action upon it, for no one could have a good title to it except the payee. Q. — The owner of a bill of exchange has a right to sue the drawer, acceptor and indorser of it. Can he do so by means of one writ, or is he bound to issue three separate writs ? A. — The holder of a bill of exchange cannot sue the drawer, acceptor and indorser in one action, except under the Bills of Exchange Act ; for the contract is several and not joint. By the 18 & 19 Vict. c. 57, s. 6, however, a writ issued under .this act may include all the parties to the bill or note sued upon. But the subsequent proceedings are as if separate actions had been commenced. This act, it will be remembered, only applies to bills and notes not more than six months over-due. Q. — Can a person lawfully receive more than five per cent, interest ; and if so, on what security ? A. — A person may lawfully receive more than five per cent, interest on . any security, as the laws against usury are now repealed by stat. 17 & 18 Vict. c. 90. And even before this act more than five per cent, interest might have been taken, as on bills of exchange and promissory notes not having more than twelve months to run, by stat. 2 & 3 Vict. c. 37. This act was to remain in force till 1842, but its operation was from time to time extended: (see Smith's Merc. Law, 519, 5th edit.) Also, any amount of interest might have been received on bottomry or respondentia contracts, before the 17 & 18 Vict. c. 90 : (Id. 402.) LANDLORD AND TENANT. Question. — Is it necessary that a notice to quit should in aU cases be in writing? Ansieer. — The notice need not be in writing unless it be so agreed between the parties : {Macartney v. Crick, 5 Esp. 196 ; Legg v. Benison, Willes, 43.) It is desirable, however, that the notice should be in writing in all cases, to prevent any dispute as to its sufficiency, and also to facilitate proof. Q. — What notice to quit should be given to a tenant who holds under a yearly tenancy ? Digitized by Microsoft® COMMON LAW. 21 ^.-^Six months' notice must be igiven to a tenant who holds under a yearly tenancy, before the same can be determined : (see Will. Real Pro. 325, 4th edit. ; 1 Steph. Com. 279, 3rd edit.) . Q. — ^Does the half-year's notice refer to any particular period of the tenancy ? A. — Yes ; the notice must be given half a year previous to the expira- tion of the current year of the tenancy, so that if the tenant enter on any quarter-day, he can quit only on the same quarter-day : (see Will. Beal Pro. swp. % Steph. Com. swp^ Q. — ^A notice to quit being given to a tenant by his landlord, what liability does the tenant incur by holding over ? A. — By 4 Geo. 2, c. 28, it is enacted, that when a tenant holds over, after demand made and notice in writing to quit has been given to him by his landlord, the tenant is liable to pay the landlord double the yearly i/^ value of the premises, for so long a time as the same are detained, to bef recovered by action of debt ; the defendant being obliged to give special bail ; and against the recovery of this penalty, there is no relief in equity. If the tenant should give the notice, which need not be in writing, and does not deliver up possession of the premises holden by him at the time mentioned in the notice, then such tenant, his executors or administrators, < <- shall thenceforward pay to the landlord double the rent which he should otherwise have paid, which is to be levied, sued for, and recovered by action or distress: (see 11 Geo. 2, c. 19, s. 18; Arch, L. & T. 211,216, 2nd edit.) Q. — At what time of the day, on which it is due, must rent be paid, in order to prevent proceedings ? A. — Bent is not actually due until midnight of the day upon which it is reserved: (see Matthews' Guide to Executors, 7, 2nd edit.) The payment should, properly speaking, be made such time before sunset as to allow suflScient light to count the money. Q. — Receipt for half a year's rent to Christmas last ; does it prove payment of the rent to the previous Midsummer ? A. — Such a receipt is prima Jade proof of the payment of the rent to the previous Midsummer ; but this presumption may be rebutted by the landlord: (Co. Lit. 373 a ; Arch. L. & T. 151, 2nd edit. ; Taylor on Evidence, 746.) Q. — An occupier of two houses under two different landlords, one at a rent certain, the other without any agreement for any specific sum ; have the two landlords the like remedy for rent, or how does it differ ? A. — Tes ; there is this difference, — the landlord to whom the tenant pays a certain rent may distrain for such rent, but the landlord who has let the house without any agreement for a specific sum cannot distrain : bis only remedy will be an action for use and occupation ; for, in order to support a distress, the rent must be certain : (3 Steph. Com. 342, 3rd edit. ; Arch. L. & T. 113, 2nd edit.) Q.^-What are the quarter days of the year ? How is a tenancy from year to year determined on either side? If a tenancy from year to year commence at Lady-day, 1857, when would it be determinable? A. — The quarter days are the 25th March (Lady-day), the 24th June (Midsummer-day), the 29th September (Michaelmas-day) and the 25th December (Christmas-day). A tenancy from year to year can only-be determined by six calendar months' notice being given, to expire at the Digitized by Microsoft® 22 EXAMINATION QUESTIONS AND ANSWEES. end of the current year's tenancy : (Arch. L. & T. 2nd edit.) Therefore, if a tenancy from year to year commenced on Lady-day, it must end on a subsequent Lady-day. Q. — Must a lease for seven years be in writing ? and what is the limit of time for which a parol lease may be legally made ? A. — The Statute of Frauds enacts that all leases whatever, with the exception of those not exceeding three years, with a rent of not less than two-thirds of the improved value, must now be in writing and signed by the lessor or his agent lawfully authorised: (29 Car. 2, c. 3.) And the 8 & 9 Vict. c. 106, enacts that a lease required by law to be in writing of ^ny tenements or hereditaments shall be void at law unless made by deed: (s. 3.) Q. — A. grants a lease to B. for twenty-one years, at the rent of 100/. per annum ; at the end of three years B. assigns the remainder of the term to C, subject to the rent: after this assignment, rent becomes due to A., who, not being able to obtain payment from C, calls upon B. to pay ; B. objects that he has assigned to C. Is B. liable to pay the rent? A. — B. is liable to pay the rent, notwithstanding the assignment to C ; for immediately on the execution of the lease to B. a privity of contract arises between him and the lessor, and this privity of contract continues during the whole of the term, and B. or his personal repre- sentative is liable on the covenant, notwithstanding any assignment he may make. In assigning leaseholds, however, the assignee is required to enter into a covenant to indemnify the assignor from payment of the rent: (see "Will. Real Pro. 330, 4th edit.; Sug. Vend. & Pur. Con. View. 25, 137.) Q. — ^Is a tenant liable to pay the rent of premises accidently destroyed by fire, under any and what circumstances ? (a) A. — Yes ; for if a tenant covenant* generally, that is, without any exceptions, to pay rent during the term, it must be paid notwithstanding the premises are accidentally burnt down during the term : (Monk v. Cooper, 2 Str. 763; S. C, 2 Lord Eaymond ; Balfour v. Weston, 1 Term Eep. 310 ; Arch. L. & T. 153, 2nd edit.) Q. — What fixtures may a tenant remove, and when must such removal be made? A. — ^As between landlord and tenant the latter may take away such fixtures as he has himself put upon the demised premises, either for the purposes of trade, or for ornament, or furniture of his house, if thereby the freehold be not materially damaged ; but such fixtures must be removed either during the continuance of his term, or at the end of it; for he cannot remove them after he has quitted the premises : (see Broom's Maxims, 317, 2nd edit. ; Arch. L. & T. 352, 2nd edit.) By the 14 & 15 Vict. e. 25, s. 3, it is enacted, that if any tenant of a farm, or lands shall, with the consent in writing of the landlord, at his own cost and expense, erect any farm building, either detached or otherwise, or put up any other building, engine, or machinery, either for agricultural purposes or for the purposes of trade and agriculture (not being put up in pursuance of some obligation in that behalf), then the same may be removed by the tenant, he making good any injury to the premises if on a month's previous notice in writing being given to the landlord by the (n) This question will also appear in the Equity division. Digitized by Microsoft® COMMON LAW. 23 tenant he does not elect to purchase the erections ; and if the landlord elects to purchase them, the tenant's right of removal ceases. Q- — If a landlord let a house on an agreement, and the tenant run away, leaving no sufficient property on the premises to pay the rent, how is the landlord to obtain possession so as to put an end to the agreement ? A. — By the 11 Geo. 2, c. 19, s. 16, if any tenant at rack rent, or where the rent reserved shall be three-fourths of the yearly value of the demised premises, who sh all be in arxfiar.,2flejear^_rent, shall desert the demised premises and leave the same uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent, two justices of the peace of the county or riding, &c., having no interest in the demised premises, may, at the request of the lessor or landlord, &c., go upon and view the same, and affix upon the most notorious part of the premises notice in writing on what day (at the distance of fourteen days at the least) they will return to take a second view thereof ; and if on such second view the tenant or some person on his behalf shall not appear and p^the rent, or there shall not be sufficient distress on the premises, then the said justices may put the landlord into possession, and the lease to such tenant, as to such demise, shall from thence be void. The pro- visions of the above act are now extended by the 57 Geo. 2, c. 52, to cases where only h alf a y ear^rent-JsJn_.arrear, and also to cases where there is no power oni-entry, and whether the lease be by writing or parol, which was required by the former statute : (see Arch. L. 8f T. 171, 2nd edit.) Q. — If a landlord lets a house by parol for three years, and nothing is mentioned as to repairs, state what repairs each party would be liable to, and what would be dilapidations on the part of the tenant. A. — If a landlord lets a house by parol for three years, and nothing is said about repairs, the lessor is not bound to repair it ; but the lessee, who has the use of it, ought to do so ; and from his duty to repair it, the law implies a promise by him to that effect. If the tenant suffer the house to be out of repair, the lessor might, formerly by Statute of Glou- cester, have had an action of waste, or on the case in the nature of waste, against the tenant, unless the house were ruinous at the time of the lease : (see 'Arch. L. & T. 198, 2nd edit.) But, it now seems doubtful whether a tenant for years is liable for mere permissive waste : (1 Steph. Com. 276, note, 3rd edit.) But the tenant is clearly liable for commis- sive waste, as if he remove doors, windows, or wainscot, &c. : (Arch. L. & T. 200, 2nd edit.) Q.^ — ^What repairs or dilapidations is a tenant from year to year liable to make good in respect of a messuage or land so let to him ? A. — It seems that a tenant from year to year is only bound to make fair and tenantable repairs, to keep the house wind and watertight, so far as to prevent waste or decay of the premises, and not to substantial or lasting repairs, such as new roofing, or the like ; and he is not liable for mere wear and tear of the premises : (see Woodfall's L. & T. 435, 6th edit. ; Arch. L. & T. 198, 200, 2nd edit. ; Chitty on Cent. 297, 4th edit.) Q. — Is a landlord or incoming tenant, and which, liable at the expira- tion of a lease, to pay the outgoing tenant in respect of manure, crops, &c., who holds under a lease ; and what will be the difference if he be only tenant at will ? Digitized by Microsoft® 24 EXAMINATION QUESTIONS AND ANSWERS. .4.— Ab regards the tenants holding under a lease, if there are any covenants in it relating to the manure, &c., then, of course, toth landlord and tenant will be bound by them ; but if there be no agreement or lease, nor any stipulations in them, then it will depend on, and the parties be bound by, the custom of the country. The outgoing tenant, whether for years or at will, may remove manure, crops, &o., unless either the landlord or i ncoming tenant el ect. to take them, and unless there is a custom to'ihe contrary, in which case the landlord is entitled : (see Arch. L. & T. 39, 345, 2nd edit. ; Broom's Max. 306 to 310, 2nd edit.) THE LAW OF TORTS OR PRIVATE WRONGS. Question. — Is an infant liable for torts committed by him ? Answer. — An infant is liable for torts committed byJi^pi, but not for such as arise out ofLeantracL. Thusnie^ is liable for a°^ersonal trespass, but he is not liable in trover for goods delivered under a contract. So, if an infant, affirming himself to be of full age, borrows one hundred pounds, and gives his bond for it, and being sued upon the bond, avoids it by reason of his non-age, yet no action lies against him for the deceit : (see 4 Bacon's Abr. tit. "Infancy," H. I. 331 to 354, 7th edit. ; Broom's Max. 232, 2nd edit. ; Chitty on Cont. 144, 4th edit.) Q. — An orphan of tender years has had his leg broken by wilful negligence. Can he bring an action for the injury, and if so, how, and what action ? A. — An orphan having had his leg broken by wilful negligence, may maintain an action to recover damages for the injury sustained. The infant must sue by guardian or prochein amy, to be admitted by order of a judge, obtained upon petition : (Arch. New Com. Law Pract. 341, 2nd edit.) As to the form of action, this will be either trespass or case, according to the circumstances under which the act occasioning the injury was committed: if the act occasioning the injury was direct and immediate, the form of action will be trespass, but if the act is not immediately injurious, but only by consequence or collaterally, then an action on the case should be brought : (see 3 Steph. Com. 453, 3rd edit. ; 1 Arch. N. P. 405, 538.) Q. — A father and his child under ten years of age receive injuries by a collision on a railway : in seeking compensation at law for such injuries, must there be more actions than one, and in whose name or names is or are such action or actions to be brought ? A. — ^There should be two actions. The father must bring his action to recover damages for the injuries done to him ; and an action must be brought for the child by his guardian or prochein amy for compensation for the injuries he has sustained. The father may bring this latter action in the character of prochein amy. The reason for requiring separate actions being, that they are instituted in different rights and capacities. Q. — ^What is the difference between slander and libel ? A. — Slander is the malicious defamation of a man, either with respect to his character, trade, Jurofessiorij ocpccupatjon, by word of mouth; the COMMON LAW. 25 same as a libel is by writing, or other significant characters : (Holth. Law. Die. 2nd edit.) A libel may be defined to be a malicious defama- tion, expressed in printing or writing, or by signs, pictures, &c., tending to injure the reputation of another, and thereby expose him to public hatred, contempt, or ridicule : (3 Steph. Com. 469, 3rd edit. ; Broom's Max. 233, 2nd edit.) There is also a great difference in degree as to what constitutes libel and what slander; many words which, if spoken would not be actionable, are actionable if published in the way of libel : (see 3 Steph. Com. 464, el seq. 3rd edit.) Again, libels maybe punished criminally as well as civilly ; but mere verbal slander is not generally punishable criminally, but only in certain cases : (lb.') Q. — For what damages are hundredors liable, and what are the neces- sary steps to be taken before a writ is issued, and against whom should it issue ? A. — Hundredors are now only liable for damages done by rioters feloniously. If the damage exceed 30Z., an action may be brought within three calendar^ months. Prior to bringing the action the plaintifi^, or his servant having the care of the property injured, shall, within seven days after the commission of the offence, go before some near resident justice, and state on joath _ the names of the_offenders,_and submit to an examina- tiopjjmd enter into a recognizance to proseciijfi^ The process is the same as in ordinary cases ; it is directed to " the men inhabiting within the hundred of , in the county of ," or other like district generally, and not against any individuals by name. The writ is served on the high constable, or on any one of the high constables of the hundred : (15 & 16 Vict. c. 76, s. 16.) If the damage done does not exceedSO/.^ no action can be brought, but the p roceedin g is summary before justices at a special petty session: (see 7 & 8 Geo. 4, c. 31, by which the proceedings are regulated.) Q. — A man commits an assault in the street, and in so doing breaks , unintentionally a square of valuable plate-glass in a shop window ; another slips down accidentally and does the like. Has the owner of the glass a remedy at law against both or either of the persons ? A. — In the first case, the person being in the act of committing an unlawful act, the owner of the glass has a remedy against him ; but where the window was broken by accident, he has no remedy, as it was unavoidable : (Broom's Max. 282, 288, 2nd edit. ; and see Arch. N. P. 378, 402.) Q. — A. commits an assault upon B., and before action brought B. dies. Can B.'s executors or administrators sue A. for the recovery of damages for the assault ? A. — In such a case the executors or administrators cannot sue A. for the assault, unless B. dies from the effects of the assault. For by the common law an executor could not maintain an action for a tort done to his testator or his property, the maxim actio personalis moritur cum persona applying : (Broom's Max. 706, 2nd edit.) But by 4 Edw. 3, c. 7, executors (which is extended to executors of executors by 25 Edw. 3, c. 5, and to administrators by 43 Edw. 3, c. 11) may bring an action for a trespass to the goods and chattels of their testator. And by 3 & 4 Will. 4, c. 42, s. 2, this remedy is extended to injuries to the real estate of any person deceased, if committed within six months before his death, and provided such action be brought within one year after his Digitized by IVHcrosoft® 26 EXAMINATION QUESTIONS AND ANSWERS. death : (see Broom's Max. Y02 to 707, 2nd edit. ; 3 Staph. Com. 458, 3rd edit.) Q. — When is a master answerable for damages done by his servant, and when not? A. — Where a servant commits a tortious act under the direction or with the assent of his master, each is liable, at the suit of the party injured, because the authority of the master cannot justify the wrongful act, and the maxim respondeat superior (a) applies. This principle is also very often applicable where the injury is sustained in consequence of the servant's negligent performance of his master's orders. A master is not, however, liable for injury committed by the servant wilfully, while neither employed in the master's service, nor acting within the scope of his authority: as, if a servant authorized merely to distrain cattle damage feasant, drives cattle from the highway into his master's close, and there distrains them; the principle of respondeat superior not applying in such a case : (see Broom's Max. 668, 672, 2nd edit. ; Smith's Merc. Law, 155, et seq. 5th edit.) Q. — Will the liability of the master, as stated in the preceding ques- tion, be altered by the injured party being also his servant ? A. — As a general rule it will make no difference in the master's liability, because the injured party is also the master's servant : (see references, sup.) But a master is not responsible in the case of one servant sustaining an injury from the negligence of a fellow-servant of competent skill in the course of their common employment : (see Smith's Merc. Law, 157 n. 5th edit. ; Degg v. The Midland Railway Company, 28 L. T. Rep. 357 ; Griffiths v. Gidlow, 31 L. T. Eep. 300.) Q. — If I start game in my own land, have I a right to follow it into the land of my neighbour ? A. — In general, no person, though he find game upon his own land, has a right to pursue it upon the land of another, either to kill or take it when killed, or for any other purpose. But a person may by the common law enter the lands of another to follow beasts of prey, as a fox or a badger, for the purpose of destroying them as such ; and in this case no trespass will lie, though it will in the former. But the digging and breaking the ground of another to unearth even beasts of prey is un- , lawful. So, the pursuit of a fox for mere purposes of pleasure will not justify entering another's land : (see Arch. N. P. 297, 320 ; 2 Bla. Com. 417, et seq.; 2 Steph. Com. 19, 2nd edit.) Q. — Explain the meaning of the maxim actio personalis moritur cum person& ; and give an instance of its application. A. — The meaning of the above maxim is, that a personal right of action dies with the person ; for example, if A. commits an assault upon B. and B. dies before an action is brought, his personal representatives cannot sue A. for damages for the assault ; (and formerly) though B. had died by the wrongful act of A. : (see Broom's Max. 702, et seq. 2nd edit.) Q. — Has any and what alteration been made in the above maxim by the 9 & 10 Vict. c. 93 ? A. — Yes ; by that act it is enacted, that " whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action, and recover damages in respect (a) Respondeat superior, i. c, Let the principal answer. Digitized by Microsoft® COMMON LAW. 27 thereof, then and in every such case the person who would have been liable if death had not ensued, shall be liable to an action for damages, not- withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony :" (9 & 10 Vict. c. 93, s. 1.) Q. — In case of injury to a person from which death ensues, is there any mode by which compensation can be sought, and by what means, and by whom and against whom must it be brought, and what species of loss is recoverable in such an action ? A. — As above seen, in such a case, an action may be brought. No form is given by the act, but the words of the act are, that the person "shall be liable to an action for damages." The 2nd section provides that every such action shall be for the benefit of the wife3_husband3_par^ntj_Mid child, , of the person whose death shall have been so caused, and to be brought by and ig the name of the executor or administrator of the deceased person. The actiotiT? brought against the person who would have been liable if death had not ensued. It must be brought „>Yithin^f. )j twelve calendar months after the ^death: (sect. 3.) The word "parent" is to include " father and mother, and grandfather and grandmother, and stepfather and stepmother," and the word " child " is to include " son and daughter, and grandson and grand-daughter, and stepson and step- "daughter:" (sect. 5.) The rule respecting actions for negligence, namely, that no action lies if the person injured might by reasonable care have avoided the injury, or at all events if he did by his own negligence contribute to the injury, applies to actions under this statute. It will also be observed that this act only applies wliere death ensues from the parti- cular wrongful act, and does not apply where a tort is committed to the person, which does not occasion death : (see Broom's Max. 708, 2nd edit.) As regards the species of loss recoverable under this statute, to entitle the representatives to recover, they must be in the loss of some pecuniary advantage, either presently or in expectation. Damages are not to be given as a solatium to the :feelinga of the deceased's representa- tives, or in referenc.e,-_tQ_,the loss.- of . a . legal right : (Franklin v. The South-Eastern Railway Company, 31 L. T. Rep. 154.) Q. — Whilst A. is riding in his carriage, his coachman, in driving,, knocks a man down, and injures him. Upon another occasion, when A, is not riding in his carriage, his coachman does a similar thing. Can the pariy injured bring an action of trespass against A. in both or either and which of these cases ? A. — ^In the first instance, that is, when the master was present, an action of trespass may be maintained against him for the injury sustained ; but, in the latter instance, an action on the case can only be brought : (Arch. N. P. 299, 436.) But it must be remembered that no objection to the form of an action can now be taken : (15 & 16 Vict. c. 76.) Q. — In case of an injury to a person on the Queen's highway by job horses on a yearly hiring, not driven by the job-master's servant, who is liable for it? A. — The person hiring the job horses will be liable, as they are not driven by the job-master's servant, otherwise the job-master would be liable : (see Arch. N. P. 436, 437 ; Smith's Merc. Law, 156 n., 5th edit.) In answering this question it is presumed tljat either the person hiring the job horses, ov his servant, was driving at the time of the injury. Digitized bfl^icrosoft® 28 EXAMINATION QUESTIONS AND ANSWEKS. Q.—In what way is a stage-coach proprietor liable to a passenger travelling hy his coach, for hurt or injury ? A. — ^A stage-coach proprietor is liable to a passenger travelling by his coach for any hurt or injury arising from want of skill in the coachman, for any defect in the construction of the coach, or the viciousness of the horses, or for negligence. But if the hurt or injury sustained be the result of mere accident no action lies : (^Aston v. Heaven, 2 Esp. N.P. C. 533 ; Broom's Max. 177, 2nd edit.) Q. — If a traveller by a railway sustain an injury on the journey, will he be entitled to compensation, and against whom should he proceed ? A. — If the injury was occasioned through the negligence of the com- pany's servants, an action may be brought against the company : (see Palmer v. Grand Junction Railway Company, 3 Jur. 559 ; 4 M. & W. 749.) It should be observed that in cases of this nature, if the plaintiff has by negligence contributed to the injury, he cannot recover. Q. — If A. sues for damage arising from the negligent conduct of B., how far may his right to recover be affected by his own want of care ? A. — Where one person sues another for damages for some injury in consequence of the negligence of that other, or his servants or workmen, it is a bar to his right to recover if he could, by exercising ordinary care, have avoided the injury, or at least if it can be shown that he, by negligence or want of proper care, contributed to the accident : (see L. J. (Ex.) 291, 293.) Q. — State some of the nuisances affecting dwelling-houses and lands, for which an action will lie. A. — If a man do or permit or suffer to be done upon his own land, anything which has the effect of injuring his neighbour, the latter may, in general, have his remedy against him by an action on the case. The following instances may be mentioned : — If a man build a house upon his own land, but so near to another's that his roof overhangs the other's roof, and throws the water off his roof upon the others ; if a man set up an offensive trade, such as a tanner's, or a tallow-chandler's, or the like, or erect or maintain an offensive thing upon the premises, as a hogstye, a limekiln, or a dungheap, the stench from which renders the air unwholesome, and the enjoyment of property uncomfortable. Various other instances may be mentioned, as obstructing lights, or diverting watercourses : (Arch. N. P. 420, et seq. ; 3 Steph. Com. 493, 3rd edit.) Q. — How should a person proceed for damages against a wilful tres- passer, when they would not amount to 51. ? A. — By the 7 & 8 Geo. 4, c. 30, s. 24, it is enacted, that if any person shall wilfully or maliciously commit any damage, injury, or spoil, to or upon any real or personal property whatsoever, either of a public or private nature, for which no remedy or punishment is by the act provided, every such person, on bein^ convicted thereof before a justice of the peace, k_to forfeit an3~pi^^uch a sum of money as shall appear to such justice to be a reasonable compensation for the damage, injury, or spoil committed, not exceeding the sum of five pounds ; which sum, in the case of private property, is to be paid to the party aggrieved, except where such party has been examined in proof of the offence. It is, however, provided that' nothing in the act shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a Digitized by Microsoft® COMMON LAW. 29. right to do the act complained of, or to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game. Q. — ^May the owner of a horse which has been stolen from him retake it in any and in what place ? A. — If the owner of a horse be deprived of it by another person, he may retake it wherever he happens to find it, so that it be not done in a riotous manner, or attended with a breach of the peace, which retaking is termed recaption. So that the owner will not be justified in breaking open a private stable, or the like, to retake the horse. The same rule applies to other personal property ; also to the wife, child, or servant of the party : (see 3 Bla. Com. 4 ; 3 Steph. Com. 338, 3rd edit.) If a horse is feloniously stolen, it seems the owner may break open a private stable, or enter the grounds of another to retake it, if he has reason to suspect that it is there, but not otherwise: (3 Bla. Com. ut sup.; 3 Steph. sup. i Broom's Max. 225 n., 2nd edit.) LIMITATIONS OF ACTIONS. Question, — Within what time must an action of debt on simple con- tract, or on a specialty be brought, except in cases of disability ? Answer. — An action to recover a simple contract debt must be brought <> within sjx years fromt^atime the, cause of action accru^ji, and to recover *' a debt on specialty within twenty years from the accruing of the .cau8,e y of_action : saving in all cases the right of persons under disability, as a infents, feme coverts, persons non compos mentis,\^a&fts--iertiMriehtor t tfeg»g:Jj^3jBd- 4;he jseagj-a nd as ta-eimplfr-Dontrftct dobt s, a flAigthg^-'dgbtoy - b e iugjw^gigpngd j (see 21 Jac. 1, c. 16 ; 3 & 4 Will. 4, c. 42 ; 3 Steph. ^ Com. 551, et seq. 3rd edit; 19 & 20 Yict. c. 97.) Q. — In what cases of disability may actions be brought after the disability ceases ? A. — The cases of disability have been already mentioned : a party under any of those disabilities is at liberty to bring his action within the same period after the removal of the disability as is allowed to persons having no such impediment. The 4 Anne, c. 16, s. 19, enables a creditor to sue his debtor, who was beyond the seas when the cause of action accrued, within six years after his return. And the 3 & 4 Will. 4, e. 42, s. 2, gives the same time to a party after his debtor's return from abroad to sue him, as such party would have had to proceed against the debtor if he had not been abroad at the time the cause Bf action accrued. But when the Statute of Limitations has once commenced running nothing can stop it : (see generally 3 Steph. Com. ubi sup. and post, p. 31.) It may be here stated that the statute does not destroy a debt, but only bars the remedy : (see post, p. 32.) Q. — Does the Statute of Limitations apply where a debtor was abroad when the cause of action accrued, and who has returned to this country, and if not, within what time may the action be commenced ? Digitized by Microsoft® 30^ EXAMINATION QUESTIONS AND ANSWERS. A. — Whore a debtor is abroad at the time the cause of action accrues, the creditor has six years after the debtor's return to bring his action, by virtue of the stat. 4 Anne, c. 16, s. 19. This section is not affected by sect. 10 of the 19 & 20 Vict. c. 97. As to where is deemed beyond seas, see sect. 12 of the last-mentioned act. Q. — When a party is beyond seas at the time when a cause of action accrues to him, is he entitled to any and what further time for com- mencing his action beyond the period prescribed by the Statute of Limitations ? A. — ^Where a party having a right to sue is abroad when that right accrues, this fact is no longer a disability as formerly ; the stat. 19 & 20 Vict. c. 97, enacting that no person or persons who shall be entitled to any action or suit, with respect to which the period of limitation within which the same shall be brought is fixed by the several Statutes of Limitation, shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the several Statutes of Limitation, by reason only of such person, or some one or more of such persons, being at the time such cause of action or suit accrued beyond the seas : (sect. 10.) It will be seen that this section only relates to a creditor being abroad when the cause of action accrued, and not to a debtor. Q. — In respect of a lease under seal, how long does the liability of the lessee last, and within what time may an action of covenant be brought ? A. — The liability of a lessee under a lease by deed lasts as long as the lease itself : (see ante, p. 29.) An action of covenant may be brought within twenty years after the accruing of the cause of action : (3 & 4 Will. 4, c. 42, s. 3 ; 3 Steph. Com. 554, 3rd edit.) Q. — Where there are several parties who are entitled jointly to sue in an action of contract, and one of them is abroad, does the statute run against the others ? A, — The absence of one of several joint contractees does not prevent the statute running against the others, as an action might be brought, in their joint names, by the parties who are residing here^ ' But it was other- wise if one of several joint contractors was abroadT {Perry v. Jackson, 4 T. R. 516.) Now, however, the l51i; 20 Vict. c. 97, enacts that when there is a cause of action against two or more joint debtors, the creditor shall not be entitled to any time to commence and sue any action or suit against any one or more of such joint debtors who shall not be beyond seas at the time such cause of action or suit accrued by reason only that one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas 4' and the creditor is not to be barred from commencing and suing any action or suit against the joint debtor or joint debtors who was or were beyond the seas at the time the cause of action or suit accrued after his or their return from beyond the seas, merely because judgment has been recovered against any one or more of such joint debtors who was not or were not beyond seas at the time the cause of action accrued : (see sect. 11.) Q. — Suppose a debt to be incurred by a party resident in this country, and some months after the debtor leave the country and reside abroad, when would the Statute of Limitations begin to run ? A. — The statute would begin to run at the time of contracting the debt (Arch. N. P. 130) ; and, as it is a rule that when it has once Digitized by Microsoft® COMMON LA-W. 31 begun to run nothing (except as stated below) can stop its operation, the subsequent departure of the debtor from this country will not prevent the statute running against the debt : {Smith v. Bill, 1 Wils. 134 ; Arch. N. P. 131.) Q. — Is the Statute of Limitations a good answer to an action of assumpsit on a bill of exchange more than six years old, on which bill the interest has been paid within six years ? A. — ^The Statute of Limitations is not a good answer to an action of assumpsit on a bill of exchange more than six years old, where it is proved that interest has been paid within six years before the commence- ment of the action : (Arch. N. P. 137.) Q. — Should the period within which an action on a simple contract debt can be brought have expired, and the defendant should plead the Statute of Limitations, will a verbal promise given within the limited time be sufficient to enable the plaintiff to recover, or must he be pre- pared with any and what further evidence ? A. — ^In such a case a verbal promise will not entitle the plaintiff to recover; for the 9 Geo. 4, c. 14, enacts that no acknowledgment or pro- mise, by words only, shall be deemed sufficient evidence of a new or con- tinuing contract, whereby to take any case out of the operation of the ' Statute of Limitations, or deprive any party of the benefit of it, unless the promise or acknowledgment is in writing and signed by the party to be charged therewith (sect. 1), or his duly authorized agent : (19 & 20 Vict, c. 97, s. 13.) Q. — ^In an action against two or more joint contractors to recover a debt which is statute barred, evidence can be given of an acknowledgment by one of them ; will this revive the debt against the other joint contractor or contractors ? A. — No; the 9 Geo. 4, c. 14, enacting that where there are two or more joint contractors, or joint executors or administrators of any con- tractor, no joint contractor, or joint executor, or administrator shall lose the benefit of the enactments of the Statute of Limitations, by reason only of the written acknowledgment of the other. But a payment of either principal or interest by one contractor, &c., would formerly have revived a debt which was statute barred, against the others : (sect. 1.) But now the 19 & 20 Vict. c. 97, enacts that no co-contractor, co-debtor, executor or administrator shall lose the benefit of the enact- ments of the Statute of Limitations by reason of the payment of any prin- cipal, interest, or other money made by any other or others of such co- contractor, co-debtor, executor or administrator : (sect. 14.) Q. — What is necessary to prevent the Statute of Limitations running against a debt ? A. — A written acknowledgment signed by the party liable, or a pay- ment either of principal or interest, will prevent the statute runninga (9 Geo. 4, c. 14.) The acknowledgment must be such that a promise to pay may be implied from it : (Arch. N. P. 135 to 137.) If the defendant cannot be found, the effect of the statute may be barred by suing out a writ of summons, and getting it renewed within succes- sive periods of six months, as directed by sect. llofl5&16 Vict. c. 76. Q. — When a writ is issued against a party who cannot be served, what steps should be taken to prevent the Statute of Limitations barring the right of action ? Digitized by Microsoft® 32 EXAMINATION QUESTIONS AND ANSWERS. •<4. — When a defendant cannot be served, and it is wished to prevent the Statute of Limitations barring the right of action, the writ may be renewed at any time before its expiration for six months from the date of such renewal, and so from time to time from the date of such renewed writ, by being impressed with a seal provided for that purpose and kept at the Master's office. At the time of renewal a precipe must be left : (see 15 & 16 Vict. c. 76 ; Pat. & Mac. Com. L. Pr. 59.) Q. — When a person has a lien on goods as a security for a debt, and such debt becomes barred by the Statute of Limitations, does the lien continue or is it determined ? A. — The lien will continue, for the Statutes of Limitations governing personal actions merely bars the remedy of action, and does not ex- tinguish the riffht to the debt ; as do those governing real actions : (see 3 Steph. Com. 556, 3rd edit.) PARTIES TO ACTIONS. Question. — Are there any persons who cannot bring actions in their own names, and how can they proceed to recover damages for an injury ? Answer. — In general a married woman cannot bring an action in her own name, but her husband must join with her : (Arch. New C. L. Pract. 24, 2nd edit.) So an infant cannot sue in his own right by attorney, or in person, but must do so by prochein amy or guardian : (Id. 341.) The proceedings in actions by idiots ^or lunatics are the same as in ordinary cases, except that an idiot must appear in person, and then any person who may pray to be admitted to sue for him shall be allowed to do so : but a lunatic must appear by guardian, if within age, or by attorney if of full age: {Id. 340.) An outlaw cannot sue during the continuance of the outlawry : (Smith's Action at Law, 65, 5th edit.) Q. — How can an infant maintain an action ? A. — An infant must sue by prochein amy (usually the father), to be admitted by order of a judge, upon a petition presented to the chief justice or chief baron for that purpose, signed by the infant, with a consent of the person who is to be the prochein amy subscribed to it, and an affidavit verifying the signatures of the infant &uA prochein amy, the judge will grant his fiat for a rule accordingly, and the rule will then be drawn up as in ordinary cases on production of the fiat. An infant may also sue by guardian, but this is not very usual in practice : (Arch. New C. L. Pract. 341, 2nd edit.) Q. — Can a married woman maintain an afction alone under any and what circumstances ? A. — Yes ; if the husband be civilly dead, by reason of his attainder or being banished, or transported ; or where husband and wife are judicially separated, or the wife has obtained an order protecting her earnings and property under the Divorce Act : (20 & 21 Vict. c. 85.) So, where the husband is dead by legal presumption; as, if he has not been heard of for seven years, the wife may sue alone. So, if the husband be an alien enemy : (see Co. Lit. l^^b^,^^^^^ ^ew ^^^^ract. 25, 2nd edit.) COMMON I. AW. 33 Q. — In wliat cases must you join husband and wife in an action ? A. — An action after marriage for a chose in action of the wife dt^m sola, must be brought by husband and wife. So, for a cause of action against a woman dum sola, who afterwards marries, the action must be against both. For torts to or by the wife, the husband and wife must be joined. So for injury to her property before marriage. So in all cases where the wife is executrix they must both be joined : (see Arch, New C. L. Pract. 25, 29, 2nd edit.) Q. — In the case of seduction, who is the proper party to bring the action, and what action must be brought ? ^.— An action for seduction cann^ be maintained by the parents of the seduced, as such, nor byjhe daughter ^herself (for volenti non fit injuria) ; but it must be brought by her master or other employer, and a father may sue in the character of an employer, if the daughter was living at home at the time of the injury committed, and in his service. The form of action may be either trespass or on the case : (3 Steph. Com. 536, 3rd edit. ; Arch. N. P. 304.) _ Q. — A. and B., partners, bring an action for a client C. ; when the cause is at issue A. dies, B. continues the action, and fails. C. after- wards refuses to pay the costs incurred. Who should sue C. for the costs ? A. — B., the surviving partner, must sue C. for the costs : (Arch. New C. L. Pract. 27, 2nd edit.) Q. — If there be two joint obligors in a bond, and one dies, against whom should the action be brought ? A. — The action should be brought against the surviving obligor : (Will. Per. Pro. 226.) For it is a rule, that in case of a joint contract respecting personalty, if one of the parties die, his executor or adminis- trator is, at law, discharged from liability. Qj — ^A testator dies leaving a right of action for money due to him upon bond, and also a right of action for libel or slander. Can his executors maintain an action in respect of both or either and which of the above rights of action of their testator ? A. — The executors may sue on the bond, but they cannot sue for the libel or slander ; the maxim ax;tio personalis moritur cum persona apply- ing in the last case : (see Broom's Max. 703 to 708, 2nd edit. ; and see ante, pp. 26, 27.) Q. — How must a corporation aggregate sue or defend ? A. — A corporation aggregate sues or defends by attorney, appointed under its common seal : (Co. Lit. 66 b. ; 3 Steph. Com. 127, 128, 3rd edit.) Q. — For any debt due to a bankrupt previously to his bankruptcy (in which debt he is personally interested), who should sue before assign- ment of his effects, and who after such assignment ? A. — For a debt due to a bankrupt previously to his bankruptcy (in which debt he is personally interested), all the assignees must join in suing : (see sect 141 of 12 & 13 Vict. c. 106 ; Arch. New C. L. Pract. 27, 2nd edit.) But from the wording of the 40th section of the above act, it would seem that if the creditors' assignees had not been appointed, the official assignee should bring the action alone. The point does not rest upon the assignment, because there is now no actual assignment of the effects to Digitized by Wlicrosoft® 34 EXAMINATION QUESTIONS AND ANSWERS. the assignees, for they vest in them by virtue of the appointment : (see sects. 141, 142.) Q. — Who is the proper party to sue on a contract, the party with whom it is made, or the party from whom the consideration moves : for instance, if A. on behalf of B. makes a contract with C, and on breach by C, who is to sue, A. or B. ? A. — The proper person to sue on a contract is he from whom the con- sideration moves. If A., on behalf of B., makes a contract (not under seal) with C, and the contract is broken ; and if B. (who is the principal) was disclosed to C, then B. is the proper party to sue on the contract in his own name. If, however, he were not disclosed, either A. (the agent) may sue upon the contract, or B. may at any time come forward and sue upon it. But the right of B. to sue C. will be subject to any set-oflf C. may have against A., if C. dealt with A. as the principal : (see Smith's Merc. Law, 168, 5th edit.) Q. — Would it make a difference if the contract were under seal, or if in writing and not under seal ? (a) A. — Where a contract is in writing, under seal, it is a general rule of law that only those who are parties or privies to the deed can sue upon it : (Smith's Merc. Law, 5th edit.) By the 8 & 9 Vict. c. 106, however, it is enacted, that, under an indenture executed after the 1 st October, 1845, an immediate estate or interest in any tenements or here- ditaments, and the benefit of a condition or covenant respecting any tene- ments or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture : (sect. 5.) The answer to the latter part of the question has already been given in the next preceding answer. Q. — ^In an action against executors for a debt due by their testator, which of the executors should be joined as defendants ? A. — All the executors or administrators who have proved the will, or administered, must be made defendants : (Arch. New C. L. Pract. 32, 2nd edit.) Q. — A. dies, and by his will appoints B. and C. to be his executors, and they prove his wiU : B. afterwards dies, leaving C. him surviving. C, the surviving executor, then dies intestate, and D. becomes administrator of his effects. Debts due to A. remain outstanding, and for the recovery of them actions become necessary: can such actions be maintained by D., or who is the proper party to bring them ? A. — The actions cannot be maintained by D., because he being only administrator of C, does not represent the testator A. ; but administra- tion de bonis non must be taken out ; that is, administration to such of the goods of A. as are not administered to by his executors, and the ad- ministrators thereunder may bring the actions : (see 2 Steph. Com. 243 ; Matthew's Guide to Exors. 306, 2nd edit.) (a) Also asked in the following form : — Q.— At common law, where a deed is made irafer partes, can a person beneficially interested in the covenants, but who is not ."■ party to tho deed, maintain an acti^frt^c<^ *1^/i'/*^'^^Ui (^'■^^ ^''■i-^'^-^^ ^'^'^'^'^ ^ PLEADINGS. Question. — When the writ has been served, what is the next step the plaintiff takes, and what must he take care is the state of the parties before he takes such step ? Answer. — As soon as the defendant has appeared, or leave obtained to proceed as if he had appeared, the pleadings commence ; the first step in which is the delivery of the declaration by the plaintiff. / Care must be taken that the parties are properly joined in the action, omopwi se-a plear-ia-fibtttement may^e-pleaded-by-the-defewdsmt^ (see Smith's Action Q. — ^What are the names of the different pleadings in an action of assumpsit ? A. — They are the following : — the Declaration by the plaintiff ; the Plea, containing the defendant's answer to the declaration ; the Replica- tion, the plaintiff's answer to the plea ; the Rejoinder, the defendant's answer to the replication ; the Surrejoinder ; the '^Rebuiter ; the Surre- butter, and so on. The pleadings seldom reach to surrebutter, but they sometimes do, and there is nothing to prevent their going beyond it. But the steps after Surrebutter have no distinctive names : (see Smith's Action at Law, 73, 77, 83, 5th edit.) Q. — Writ served in any term or vacation, within what time should the plaintiff declare, to prevent judgment of non pros, f A. — The plaintiff's time for tafing that step extends, in the opinion of the best authorities, till the conclusion of the term next after the appearance entered. If the plaintiff does not declare within that time the defendant may give him notice to declare within four days ; and in default of his so dcijng, or obtaining further time by judge's order, may sign judgment of ''°'5fJ,?f;^ecA)y /1^7cr0S0/f^ defendant take no step COMMON LAW. 49 the plaintiff, if he remain inactive for a whole year after process becomes returnable, will be altogether out of court, and his action determined by sect. 58 of the 15 & 16 Vict. c. 76 : (see Smith's Action at Law, 88, 89, 5th edit.) No declaration or pleadings can be -filed or delivered between the 10th of August and the 24th of October : (see Arch. New C. L. Pract. 9, 2nd edit.) Q. — In what case must the declaration be filed, and in what cases must it be delivered ? A. — In case of non-appearance of the defendant, where the writ of summons is not specially indorsed, it shall be lawful for the plaintiff, on filin g an affidavit of personal service of the writ of summons, or a judge's order for leave to proceed under the provisions of 15 & 16 Vict. c. 76, and a copy of the writ of summons, lo file a declaration indorsed with a notice to plead in eight days : (see sect. 28 ; Arch. New C. L. Pract. 64, 2nd edit.) In other cases the declaration is delivered. Q. — Does it require any, and if any, what permission for the plaintiff to insert more than one count in his declaration ? A. — By Rule PI. H. T. 1853, s. 1, several counts for the same cause of action are forbidden, but a judge may allow them, 'subject to such terms as he may think fit, if they appear to be proper for determining the real question in controversy between the parties : (see Smith's Action at Law, 83, 5th edit.) But this rule is not strictly followed in practice. Q. — Describe an issue. A. — ^The issue is a transcript of the pleadings concluding with an award of the venire facias, which is shortly expressed in these words, "Therefore let a jury come," &c. The pleadings are entered in the order in which they have been pleaded, with their dates and numbers, and in separate paragraphs : (Pat. & Mac. C. L. Pract. 207.) Q. — How is an objection to the validity of a pleading raised ? A. — An objection to the validity of a pleading is raised by demurrer ; li the demurrer admits the facts from which the law is inferred, but denies . that a particular inference of law arises out of such facts. An issue of ^ law is thereby raised, which is tried by the court in banc. : (see Pat. & Mac. C. L. Pract. 896 ; 3 Steph. Com. 575.) Q. — What is the nature and effect of a demurrer ? A. — A demurrer is a pleading denying the sufficiency, in point of law, of the plaintiff's right to recover, and it raises an issue of law, which is decided by the court, upon the determination of which the result of the action depends.* Q. — Can a defendant demur specially to a declaration ? How can he object to a declaration on the ground that it discloses no cause of action ? A. — A defendant cannot demur specially to a declaration. Objections that pleadings are defective in form, Sec, can no longer be taken by demurrer : (15 & 16 Viet. c. 76, ss. 50, 57.) If the declaration disclose no cause of action the defendant may demur to it, and where issue is joined upon such demurrer the court is to give judgment according to the very right of the case : (15 & 16 Vict. c. 76, s. 50 ; Pat. & Mac. C. L. Pract. 119, 896.) Q. — Who are the proper parties to decide questions of fact in actions 50 EXAMINATION QUESTIONS AND ANSWERS. brought in the superior courts j and who are the proper parties to decide questions of law in the same courts ? A. — Until recently, questions of fact were always decided by a jury ; and, subject to a provision to be presently mentioned, they are still the persons to decide thereon. But they are guided in their decisions by the judge at Nisi Prius, who decides points of law that arise on the trial, and explains to them the questions which require their determina- tion. ,'>?•■?/ ^ il^ Af-fiBw k tS'B- it Q. — In what cases may you compel a plaintiff to give security for costs, and when must the application be made ? A. — The following are the cases in which a plaintiff is required to give security for costs. Where the plaintiff is permanen tl y residen t 7 abroadj^ even although he be king of a foreign state, or although he went abroad since the commencement of the action ; but where the plaintiff is abroad for a temporary purpose the court will not compel him to give security for costs. So, if an Englishman be abroad by compulsion, as in the case of naval and military officers, and other persons engaged abroad in the public service, security will not be ordered; Nor will security be ordered" merely because the plaintiff is poor, or even insolvent, nor on the ground that the plaintiff is lunatic. But if after commencing the Z action the plaintiff be conyicted of felony, the court will stay the pro- ceedings until security be -given :" (Arch. New C. L. Pract. 576, et seq., 2nd edit.) And by stat. 17 & 18 Vict. c. 125, s. 93, if any person shall bring an action of ejectment after a prior action of ejectment for the same premises has been unsuccessfully brought by such person against ' the same defendant, the court or a judge may, on the application of the defendant, at any time after he has appeared to the writ, order the plaintiff to give the defendant security for the payment of his costs, and stay the proceedings until such security be given : (Smith's Action at Law, 243, 5th edit.) By Rule Gen. 22, an application to compel the plaintiff to give security for costs must, in ordinary cases, be made — b gfioreJaaueJ oined. After issue joined it must be shown that the Jacts on which the defendant relies in support of his application havejju^ ScmeJoh^^knowledgej and__that^o_step has been taken byjiim^m. the ^^usesubsequentlyTosuch knowledge: X^rclTr'New X^T L. Pract. 580, 2nd edit^ ; Pat. andUfecT-erL; Pract."; Smith's Action at Law, 97, 5th edit.) Digitized by&IVIicrosoft® 82 EXAMINATION QUESTIONS AND ANSWERS. Q- — If the plaintiff be a foreigner, or resident out of the jurisdiction of the court, has a defendant any mode of obtainittg or securing the pay- ment of his costs in case the plaintiff should fail ? A. — Yes ; by Compelling the plaintiff to give security for them : (see Smith, sup, ; Arch., sup.) Q. — If one of several defendants, who defend jointly, be acquitted, will he now, as formerly, be restricted to 40*. only for his costs, or in what proportion will he be entitled ? A. — No ; in such a case the defendant acquitted shall have judgment for and recover his reasonable costs, unless the judge before whom the cause shall be tried shall certify upon the record that there was reason- able cause for making such person a defendant in such action : ^3 & 4 Will. 4, c. 42, s. 32 ; Arch. New C. L. Pract. 204, 2nd edit.; Smith's Action, 177, 5th edit.) Q. — ^What is necessary to enable a party to include, in his execution, the costs of making an order a rule of court ? A. — An affidavit must be made and filed that the order has been served on the party or his attorney, and disobeyed : (Rule Gen. 1 59 ; Arch. New C. L. Pract. 644, 2nd edit.) Q. — What sum is it necessary to recover for damages in an action for slander, to entitle the plaintiff to costs of increase ? A. — If in an action for oral slander the plaintiff recovers less than 40«. he will be entitled to no more costs than damages: (21 Jac. 1, c. 16.) And the judge has no power to certify to give him increased costs. But this Stat, does not extend to cases where the words are actionable only by reason of special damage, such action coming within the provisions of the 3 & 4 Vict. c. 24 : (see Gray on Costs, 108, and note ; also Smith's Action at Law, 172, 5th edit.) Q. — In actions for damages in trespass, or on the case, where the sum sought to be recovered by the verdict of a jury shall not amount to 40s., is the plaintiff entitled to costs as of course ; if he is not so entitled, is he deprived of them by any, and what, particular statute ? A. — ^In actions of trespass or trespass on the case, where the plaintiff does not recover by the verdict of a jury more damages than 40*., he is not entitled as of course to any costs whatever. He is deprived of them by Stat. 3 & 4 Vict. c. 24 : (see Smith's Action at Law, 173, Sth edit, and below.) Q. — Supposing a plaintiff not entitled to costs where the damages recovered by verdict do not amount to 40s. in the actions stated in the last preceding question, is there any, and what, application necessary so as to entitle a plaintiff to the costs of suit ; and to whom, and when, should such application be made ? A. — To entitle the plaintiff to the costs of suit, where the damages recovered are under 40s., in trespass or case, he must immediately after the trial get the judge or presiding officer before whom the verdict is obtained to certify on the back of the record, or on the writ of trial, or writ of inquiry, that the action was really brought to try a right, besides the mere right to recover damages for the trespass or grievance for which the action was brought, or that the trespass or grievance in respect of which the action was brought was wilful and malicious : (3 & 4 Vict. C. 24; Smith's Action at Law, 1''3, 5th edit.) But the 3rd section of the .above act provides that nothing therein contained shall extend to deprive Digitized by Microsoft® COMMON LAW. 83 the plaintiff of costs in any action or actions brought for a trespass or tres- passes over any lands, &c., or for entering into any dwellings, outbuild- ings, or premises in respect of which a notice not to trespass has been previously served by or on behalf of the owner or occupier of the land trespassed over, upon, or left at the last reputed place of abode of the de- fendant or defendants, in such action or actions : (Smith's Action at Law, supra.) Although the statute requires the certificate to be given " immediately" after the trial, it is, however, construed to mean within a reasonable time : (Arch. New C. L. Pract. 129, 2nd edit.) Q. — When a verdict has been obtained in the superior courts for less than 20Z. on contract, and the judge does not certify for costs, what steps can the plaintiff take to obtain his costs, and what would be suffi- cient grounds to support his application ? A. — A.S the action might have been brought in the County Court, the plaintiff will have to apply under the statute 15 & 16 Vict. c. 54, s. 4, to obtain his costs (Gray on Costs, 153) ; this act provides that where the plaintiff is not entitled to costs by reason of the 11th section of 13 & 14 Vict. c. 61, if the plaintiff shall make it appear to the satisfaction of the court in which such action was brought, or to the satisfaction of a judge at chambersupon summons, that such action was brought for a cause in which concurrent jurisdiction is given to the superior courts by stat. 9 & 10 Vict, c. 95, s. 128, o r_for which no plaint co uld h ave been e ptered in .anx.si}ch. County Court, or that such action was removed fr amTarCounty Court by ce rtiorarii^ ac that there was suffici . ent rea son forbrinjgMg such action in tIie~court in which it was brought ; then, an3^ in anyof such cases, the court in which the action is brought, or a judge at chambers, shall thereupon by rule or order direct that the plaintiff shall recover his costs ; (see Arch. New C. L. Pract. 202, 203, 2nd edit.; Gray on Costs, 143, et seq.) Q. — Dots it make any difference if the defendant suffer judgment to go by default ? A. — The 19 & 20 Vict. c. 108, enacts that where an ac t ion of con- tract is brought in one of Her Majesty's superior courts of recofd'to. recover a sum not exceeding 20 L and the defendant lets judgment go by default, t he plaintiff shall recover "no"c osts. unless upon an applic ationjo. s uch court, or to a judge thereof, it is otherwise ordered ; (see sect. 80.) This section turned the old law completely round, for under the 13 & 14 Vict. c. 61, the plaintiff was entitled to his costs as of course, if the defendant let judgment go by default. Shortly after the passing of the J9 & 20 Vict. c. 108, however, it was decided in a case oiHeard v. Edeif, that on a j udgment by default in the superior courts, where the sum sought to be recovered does not exceed 20/., the costs are regulated by the same rule as in the case of a judgment after verdict. And it was held, in this case, that it is imperative on the judge to whom the application for costs is made, to make an order granting them in all cases of con- current jurisdiction : (28 L. T. Rep. 291.) And now for all writs under 20La, form ofjotice^ is given t o be_indDrsed_Qa-SIlfili wJ:JJ.,_whioIi_st3te3 thatj f judgment besigned for_£ efauH of appea rancgi, the plaintiff will, without summonsT app^to a j^jdge for his costs, _unlessbef ore such ] udg- ment notice be g iyenjylhejefendant or his attorney that such applica- tion will be opposed ^ and unless this notice be given the costs are allowed as of course where the superior courts have concurrent jurisdiction. Q. — ^A. has an action brought against him by B., a carpenter, for, say, 250/. A. considers the charge exorbitant, and proposes, through his Digitized b^^crosoft® 84 EXAMINATION QUESTIONS AND ANSWEHS. attorney, to pay B. 1701, and his costs then incurred. B. declines it. This is at an early stage of the cause ; say after writ served, or after declaration, and before plea. Is there any mode by which A. can pay or offer to pay that amount to B., so as to prevent his being liable for costs, provided B. does not succeed in recovering more than 170^.? A. — A. must pay the 170/. into court, and plead the payment. If B. does not recover more than the amount so paid into court, but a verdict is given for A., B. will not be entitled to any costs, but will have to pay A.'s costs from the commencement : (see 15 & 16 Vict. c. 76, s. 73 ; Arch. New C. L. Pract. 91, 93, 2nd edit. ; Gray on Costs, 295.) Eule 12, H. T. 1853, does not apply when money is paid into court to the whole cause of action. Q. — Where a summons is taken out before declaration to stay pro- ceedings on payment of a certain sum stated in the summons, with costs, and a judge refuses to make any order because the plaintiff claims a larger sum, and so indorses the summons, and the plaintiff proceeds, and upon the defendant pleading, he pays the sum offered by the summons into court, and the plaintiff afterwards (without any special circum- stances to justify his refusing the money when offered by the summons) takes the sum out of court, and replies that the money is accepted in fuU discharge of the action, and applies to have his costs taxed, what costs is a plaintiff, under these circumstances, entitled to ? A. — Under such circumstances the court will allow the plaintiff his costs up to the time of the offer only ; and not to the time of paying the money into court ; and will also make him pay the defendant the costs incurred by him since the offer. The court do this on the pre- sumption that the plaintiff refused the sum offered merely for the pur- pose of making costs : (Arch. New C. L. Pract. 93, 2nd edit. ; Gray on Costs, 307, 308.) Q. — Is the defendant entitled to any, and what, costs, under the cir- cumstances stated in the last question ? A. — Yes ; the costs incurred by the defendant after the offer : (see supra; and see generally hereon. Chit. Arch. 1284, &c. 9th edit.) Q- — If a plaintiff discontinue his action after a plea of puis darrien continuance, will he have to pay costs ; and, if any, what costs ? A. — The plaintiff may have a rule or order to discontinue after a plea of pvis darrien continuance, without payment of any costs ; but he is en- titled to his costs up to the plea : (Eule H. T. 1853; Chit. Arch. 860, 9th edit.) Q- — Where a plaintiff or defendant obtains a rule for a special jury, and the party obtaining the rule and procuring the special jury succeeds at the trial, but omits to obtain the judge's certificate that it was a cause proper to' be tried by a special jury, what effect would the want of such certificate have as to allowing the costs of the special jury in taxing the general costs of the cause ? -4. — If the party obtaining the special jury neglect to obtain the judge's certificate that it was a fit cause to be tried by a special jury, he will not be allowed the costs of the special jury, although he be success- ful at the trial : (see Smith's Action at Law, 141, 5th edit. ; Arch. New C. L: Pract. 221, 2nd edit.) Q. — When the rule granting a new trial is silent as to costs, and the verdict on the second trial is the same as on the first, how are the costs of the first trial disposed of ? Digitized by Microsoft® COMMON LAW. 85 A. — By Rule Gen. 54, if a new trial be granted without any mention of costs in the rule, the costs of the first trial shall not be allowed to the successful party, though he succeed on the second ; and never to the party who was unsuccessful at the first trial : (Arch. New C. L. Pract. 506, 2nd edit. ; Smith's Action at Law, 35, 5th edit.) Q. — ^A new trial is granted in a case where the plaintifi" has obtained a verdict, " the costs to abide the event." The verdict upon the second trial is given for the defendant. To what costs is the defendant entitled ? A. — ^The defendant is entitled to the costs of the second trial only. If the same party had succeeded at both trials he would have been entitled to the costs of both : (see Arch. New C. L. Pract. supra.) Q. — Where a new trial is granted on the ground of the verdict being against evidence, what is the rule as to the costs of the first trial ? Does this rule apply where there has been more than two trials ? A. — By the Common Law Procedure Act 1864, it is provided that when a new tria l is granted on the ground ^hat the verdict w as against evidence , the costs of the first trial shall abide the event,' unless the court shall otherwise order : (sect. 44.) But, as before seen, this section is very much qualified by Rule Gen. 54, which declares that if the rule does not provide for it, the_co sts of the first . trial are n^io-be.. allowed. And where the costs are to abide t he eve Dt. the same party ' must s ucceed on bath trials to entitle him to the costs of both. WJien a defendant obtaineoa new trial, the costs to abide the event, and suc- ceeded on the new trial, but the verdict was again set aside, the rule being silent as to costs, and the plaintifi^ succeeded on the third trial, the plaintifi" was held entitled to the costs of the firgt and the last trial : (see Pat. &Mac. C. L. Pract., 403 ; Chit. Arch. 1447, 9th edit.J Q. — When, as a general rule, are new trials granted on payment of costs, and when without costs ? A. — Where the verdict is against the evidence but not perverse (but see hereon sup.), or when the application is made on the ground of sur- prise or the Uke, the rule is generally granted only on payment_fl L-COSts. But if the verdiet be p erveia fi.. or if the plaintiff" has, out of deference to the judge, submitt ed to_an_^rroneous nonsuit, a new trial is granted without payment of costs : (see Arch.~New"I3rLr~Pract. ; Chit. Arch. 1446, 9th edit.) Q. — ^If some issues are found for the plaintiff", and others for the defendant, h.ow does it affect the costs, and how do the affidavits of in- crease differ to get the witnesses allowed to the respective parties ? Ai — By the 15 & 16 Vict. c. 76, s. 81, it is enacted, "that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues :" (see also Rule Gen. 62 ; Smith's Action at Law, 177, 178, 5th edit. ; Arch. New C. L. Pract. 205, 2nd edit, and post.) In the affidavits of increase the plaintiff must swear that the witnesses were necessary on the issues found for him ; and the defendant must swear that his witnesses were necessary on the issues found for him exclusively and solely, and not on any of the issues found against him : (Chit. Arch. 1381, 7th edit. ; and see Gray on Costs, 70, et seq.) Q. — If some issues be found on a trial for the plaintiff, and others for the defendant, how does it affect the costs, and which party has the costs of the cause ? Digitized by Microsoft® 86 EXAMINATION QUESTIONS AND ANSWERS. A. — As before stated, the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever may be the result of the other issue or issues. The party who substantially succeeds is entitled to the costs of the cause. Andby Rule Gen. 62, if the party entitled to the general costs of the cause obtain a verdict on any material issue, he will also be entitled to the general costs of the trial ; but if no material issue in fact be found for the party otherwise entitled to the general costs of the cause, the costs of the trial shall be allowed to the opposite party : (see Smith's Action at Law, 178, 179, 5th edit. ; Pat. & Mac. C. L. Pract. 470, et seq.) Q. — In an action brought by a pauper, to which three pleas are pleaded, and three issues joined, the defendant recovers a verdict on two issues, being the material issues,' but the plaintiff recovers on one issue, though to a certain extent an immaterial one, who will be entitled to the costs ; and are the plaintiff's costs on the issues found for him to be deducted from the defendant's ? A. — As above seen, the costs of any issues, whether of fact or law, are to follow the finding or judgment, whatever may be the result of the . other issue or issues. But a pauper plaintiff is not obliged to pay costs to the defendant, interlocutory or final. Also by Rule PI. H. 1853, a person admitted to sue in forma pauperis shall not in any case be enti- tled to costs from the opposite party, unless by order of the court or a judge ; ("see Arch. New C. L. Pract. 354, 2nd edit. ; Gray on Costs, 253, et seq. ; Chit. Arch. 1212, 9th edit.) Q. — What is the effect of withdrawing a juror on a trial as to costs ? '■ A. — Each party will have to pay his own costs : (Arch. New C. L. Pract. 158, 2nd edit. ; Chit. Arch. 376, 9th edit.) Q. — When are executors or administrators liable personally to pay the costs of an action brought by or against them ? A. — In actions brought by executors or administrators, they are now, by Stat. 3 & 4 Will. 4, c. 42, s. 3 1, made liable to costs like other persons, unless the court otherwise order ; and it has been intimated that the court will not interfere to assist them, unless in cases where the action has failed from something like fraud on the part of the defendant. Before this statute they were, in most cases, exempted from the pay- ment of costs if they were nonsuited, or the defendant had a verdict : (see Smith's Action at Law, 176, 5th edit. ; Gray on Costs, 227, 228.) In actions against them, if an executor or administrator plead a plea which admits his character of executor, &c., and it be found against him, the judgment will be that the plaintiff recover against him the debt or damages, and costs, to be levied of the goods of the testator, if he have so much in his hands, and if not, then the costs to be levied of the proper goods and chattels of the defendant. If he plead ne unques executor or administrator only, and it be found against him, the judgment will be that both debt and costs be levied de bonis testatoris si, ^c, et si non, ^c, de bonis propriis : (see further Arch. New C. L. Pract. 333, 2nd edit. ; Gray on Costs, 229, et seq.) Q. — When an infant plaintiff is nonsuited, or has a verdict against him, who is liable to the payment of costs ? A. — The prochein amy of the infant is liable for the costs : (Arch. New C. L. Pract. 341, 2nd edit. ; Chit. Arch. 1169, 9th edit.) Q. — When a judge grants an order to examine witnesses in a cause, Digitized by Microsoft® COMMON LAW. 87 and they afterwards appear at the trial, and are examined, what becomes of the costs of the commission ? •<4' — If the interrogatories are not given in evidence, the costs of them are not allowed : (Gray on Costs, 364 ; Chit. Arch. 306, 9th edit.) Q- — ^In a case where S-Uils. is obtained to show cause why proceed- ings should not be set aside for irregularity, with costs, and the rule be discharged generally, without an express direction as to costs, what becomes of them ? ■^' — The rule is to be understood as discharged with costs ; the i unsuccessful party will therefore have to pay them : (Rule 137, H. T. 1853 ; Chit. Arch. 1381, 9th edit.) Q. — -Must the _)rt5successful pai-ty under an award wait until the time for setting aside the award has expired before he can tax his costs ? -^. — ^No ; he may tax his costs prior to the expiration of the time for setting aside the award : (Rule 170, H. T. 1853 ; 0' Toole v. Potts, 38 L. T. Rep. 248.) Q. — If a plaintiff commence an action in Qfivenant, debt, detinue, or assumpsi t in any of the superior courts of record, and shall not recover a sum exceeding 201., is any step necessary under 13 & 14 Vict. c. 61, to deprive him of his costs ? A. — No ; the defendant need not take any step to deprive the plaintiff of costs under the 13 and 14 Vict. c. 61 : (see Arch. New C. L. Pract. 202, 2nd edit. ; Chit. Arch. 445, 9th edit.) Q. — What actions ought to be brought in the County Court, and what penalty is imposed when an action which ought to be so brought is brought in a superior court ? A. — If any action of covenant, debt, detinue, or assumpsit (not being for breach of promise of marriage) be commenced in any of the superior courts of record, and the plaintiff does not recover more than 20/., or if any action commenced in the superior courts in trespass, trover, or case (not being an action for malici,Q.us. ^prosecution, libel, slander, or for ^fjjfiH"")j and the plaintiff do not recover more than 51., he shall have judgment to recover such , sum only, and no costs, unless the judge certifies on the back of the record (13 & 14 Vict. c. 61, s. 12), or an order is obtained for the allowance of costs under sect. 4 of the 15 & 16 Vict. c. 54 : (see Arch. New C. L. Pract. 202, 2nd edit. ; Chit. Arch. 445, 9th edit., and ante, p . 82 ; see also post, tit. " County Courts.") Q. — ^In scire facias, if the plaintiff obtain judgment by default or otherwise, is he entitled to costs ; and, if so, does the right accrue at common law, or is it given him by statute ? A. — At common law no jcflsts were recoverable in proceedings by scire facig s., but were given by stat. 8 & 9 Will. 3, c. 11. But this statute did not entitle a plaintiff to recover costs if he obtained a judgment by default, but they are given by stat. 3 & 4 Will. 4, c. 42, s. 34 : (see Gray on Costs, 401, 402 ; Sraith's Action, 168, 5th edit.) Q. — State the result as to costs where, in an action of libel, the plain- tiff recovers only 5s. A. — In such case the plaintiff will not be entitled to any costs, unless the judge certify that the act complained of was wilful and malicious : (3 & 4 Vict. c. 24.) And it seems that, in order to justify the judge in Digitized by Microsoft® 88 EXAMINATION QUESTIONS AND ANSWEBS. certifying under this statute that the act complained of was malicious, he must be satisfied that the conduct of the defendant arose from personal malice — from a real design to injure the plaintifiF, and that it was in fact a wilful and malicious grievance, as distinguished from the meaning of the word malice as employed in an action for libel, where the un- authorized publication of calumnious matter affecting the character of another constitutes malice in law sufficient to justify an averment of malice in the declaration : (see G-ray on Costs, 119.) ERROR. Question. — By the Common Law Procedure Act, 1854, in what cases are new powers given for obtaining the opinion of a court of error ? Answer. — By sect. 32 of the 17 & 18 Vict. c. 125, error may now be brought upon a judgment upon a special case, in the same manner as ■upon a judgment upon a special verdict, unless the parties agree to the contrary. Before this act the judgment of the court upon a special case, unlike that upon a special verdict, could not have been taken to a court of error. Also an appeal lies to the Court of Error from the decision of the courts in granting or refusing applications for new trials in certain cases : (see ante, p. 73 ; Chit. Arch. 424, 9th edit.) Q. — Within what time must error be brought to reverse a judgment, and what exceptions are there to the limit ? A. — Error to reverse a judgment in any cause must be brought and prosecuted with effect within six years after such judgment signed or entered of record ; but if the person entitled to bring error be an infant, feme covert, non compos mentis, or beyond the seas, then six years are allowed for such person to bring error after such disability has ceased : (see 15 & 16 Vict. c. 76, ss. 146, 147 ; Smith's Action at Law, 186, 5th edit. ; Chit. Arch. 507, 9th edit.) EXECUTION, Question. — How is a judgment enforced ? Answer. — A judgment is enforced by execution : (Arch. New C L Pract. 228, 2nd edit. ; Smith's Action, 191, 5th edit.) Q. — State the different processes of execution for the recovery of a judgment debt. Digitized by Microsoft® COMMON LAW. 89 A,— A judgment debt is usually executed by writ of ^eri facias, capias ad satisfaciendum, or elegit. There are, indeed, two other modes of execution, one by levari facias, and the other by extent; but the former is altogether unusual, and the latter almost entirely appropriated to the Crown : (Smith's Action at Law, 191, 5tli edit.) Q. — Within what period must execution be sued out after judgment is signed? A. — All writs of execution must be sued out within six years from the recovery of the judgment, and during the lives of the parties : (15 & 16 Vict. c. 76, s. 128 ; Smith's Action at Law, 207, 5th edit.) Q. — State what kind of property may be taken under each of the different kinds of writs of execution. A. — Under a writ oi fieri facias the goods and chattels of the party against whom execution is issued may be taken ; under a writ of elegit, his goods and lands ; and under a capias ad satisfaciendum, his person : (Arch. New C. L. Pract. 228, 2nd edit.; Smith's Action, 191, et seq. ■ 5th edit.) Q. — Is there any, and what, property that cannot be taken in execution ? A. — Yes ; under a writ of fi. fa. the following goods cannot be taken in execution : — fixtures which are fixed in the freehold, and go to the ' heir and not to the executor, such as ranges, ovens, and the like. A /| mere equitable intpresj; ia-a-t£rm— Car, years, cannot be sold by the sheriff; The g pods of a stran ger cannot be seized, although in the possession and > apparent ownership of the defendant. In cases of an execution as to one of two partners, the sheriff may seize partnership property, but he can only sell that partner's undivided share in it ; if he sell the shares of both, he must pay over to the other partner his share of the produce of the sale. If a writ of elegit is sued out, the qxen_and, beaat^_of_the_ ploug h are excepted out of the debtor's goods and chattels : (see Arch. New C. L. Pract. 241 to 251, 261, 2nd edit. As to the goods of a bankrupt or insolvent, see id. pp. 249, 250.) Q. — Can a plaintiff issue a fieri facias after a capias ad satisfacien- dum has been executed ? A. — Yes ; for although the law considers the taking the defendant in execution a satisfaction of the judgment as against him ; yet, though the defendant die in prison, or be discharged by privilege of Parliament, the plaintiff's remedy is not at an end, for stat. 2 Jac. 1, c. 13, gives execution after the privilege of Parliament has ceased ; and stat. 21 Jac. 1, c. 24, gives execution against the defendant's goods and chattels kfter his decease •; for which purpose a fi. fa. must be sued out : (See Smith's Action at Law, 197, 198, 5th edit.) Q. — Can anything besides goods be levied or charged in execution under a recent act ? and, if so, state what, and by what form of pro- ceeding ? A. — ^Yes ; by virtue of any writ of fieri facias the sheriff or person having the execution of it may and shall seize and take any money or bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money belonging to the person against whose effects such writ of fi. fa. shall be sued out ; and he may deliver the notes and money so seized, or a sufficient part thereof, to the party suing out the writ ; and may hold the cheques, &c., and other securities for money, as a security for the amount by such ivrit of fi. fa, directed Digitized by l\^crosoft® 90 EXAMINATION QUESTIONS AND ANSWEES. to be levied, or so much thereof as shall not have been otherwise levied and raised ; and may sue in the name of such sheriff or other officer for the recovery of the sum or sums secured thereby, if, and when, the time of payment shall have arrived ; and payment to such sheriff or other officer shall discharge the party liable on the bill of exchange, &c., with or without suit : (see further, 1 & 2 Vict. c. HO, s. 12; Smith's Action at Law, 194, 5th edit.) Q,— A. is indebted to B. 15/.; B. sues A., and recovers judgment for 151, debt, and 25Z. costs. Has B. his election to issue execution against the goods and effects, or against the body of A., or is he limited to one only of such remedies, and to which ? A. — On such a judgment, B. can only sue out execution against the goods and effects of A. ; he cannot take the body of A. in execution. Before you can issue execution against the body of your debtor, the sum recovered must exceed 201., exclusive of costs : (see 7 & 8 Vict, c. 96, s. 57; Smith's Action at Law, 196, 5th edit.; Arch. New C. L. Pract. 266, 2nd edit.) Q. — Is there any, and what, recent alteration in the plaintiff's power of taking a defendant in execution ; and what remedy has the plaintiff when he cannot take the defendant in execution ? A. — By the 7 & 8 Vict. c. 96, s. 57, no person shall be taken or charged in execution upon any judgment obtained in any action for the recovery of any debt, wherein the sura recovered shall not exceed the sum of 20Z., exclusive of the costs recovered by the judgment. If after a ca. sa. has been sued out, and the sheriff return non est inventus, i.e., that the defendant is not found within his bailiwick, the plaintiff may, if he please, sue out an exigi facias, and pi'ooeed to outlawry, for outlawry on final judgment is not abolished : (see Smith's Action at Law, 197, 5th edit.) Q. — Supposing a defendant to die while in custody in execution upon a judgment debt, what is the effect of the defendant's death ? Is the debt gone, or does it continue ? A. — The debt is not gone ; but the plaintiff may have execution against the deceased's goods and chattels, by stat. 21 Jac. 1, c. 24 : (see Smith's Action at Law, 197, 5th edit.) Q. — Suppose a plaintiff recover a verdict against two joint defendants, should he issue execution against each defendant for half, or if he issue execution against one for the whole, would the other be thereby exone- rated entirely ? A. — The execution must pursue the judgment, and therefore should be issued against both. The mere levying an execution against one would not entirely exonerate the other: (see Chit. Ai-ch. 554, 9th edit.; Arch. New C. L. Pract. 231, 2nd edit.) Q. — Judgment against two defendants and one dies ; what is necessary to enable the plaintiff to take out execution, and against whom will the execution issue ? A. — Where there are two defendants in a personal action, and one dies within six years after judgment, execution hy fieri facias or capias ad satisfaciendum may be sued out, without any revival of the judg- ment. The execution may be sued out against the survivor upon sug- gesting the death upon the roll (which need not be done till the roll be carried in). If the plaintiff wish to have an elegit against the lands of Digitized by Microsoft® COMMON LAW. 91 a deceased defendant as well as against the survivor, he may haVe a writ of revivor against such survivor, and the heir and terre tenants of the deceased, to have execution against the lands and goods of the former and the lands of the latter : (see Chit. Arch. 554, 1065, 1066, 9th edit.) Q-— The venue in a cause being laid in the county of Surrey, and the plaintiff having obtained final judgment against the defendant, and being desirous to issue an execution against the defendant's effects in Norfolk, can he, or can he not, issue a fieri facias at once into the latter county, although the venue in the action is laid in the county of Surrey ? ^•— Yes; for, by the 15 & 16 Vict. c. 76, writs of execution may issue at once into any county, without reference to the county in which the venue is laid : (sect. 121 ; Smith's Action at Law, 191, 5th' edit.) Q. — Supposing the person of a defendant to be in execution for a judgment debt, and that, with the plaintiff's consent, he is let out of prison on a promise to return into custody ; what is the effect of his being so let out of prison upon the debt, and may he be retaken ? A. — ^By his being discharged with the plaintiff's consent, the debt is altogether extinguished, and he cannot afterwards be taken again in execution for the same debt, or have any writ of execution against his property ; even although he was discharged upon an express stipulation that the plaintiff should be at liberty to take him again : (see Arch. New C. L. Pract. 269, 2nd edit. ; Chit. Arch. 9th edit.) Q. — Again, in the case of a joint debt due from A. and B., and both of them in custody in execution upon judgment recovered for such debt, and the plaintiff discharges A. out of prison;' does or does not the dis- charge of A. affect the debt as regards B., and how ? ^.— If the plaintiff discharge A., it will operate as a discharge of B. too, for the same debt: (Arch, supra ; Chit. Arch, supra.) Q. — ^If the cause of action be matter of contract against several, may execution issue, and the damage be levied against either, and can he ■ compel contribution ? and, if so, how ? and will it be the same in tort ? - A. — The execution must follow the judgment, and, therefore, should be issued against all : (Arch. New C. L. Pract. 231, 2nd edit.); but the execution may be levied against one in actions ex contractu, and he may compel the others to contribute by bringing an action against them (unless upon a contract made with the defendants as partners in trade : the remedy is then in equity) ; but in most cases of tort he cannot compel a contribution, and he is, in general, altogether without a remedy: (see Chit. Arch. 40*1, 7th edit.) Q. — If a beneficed clergyman incur debts, is there any, and. what, mode of obtaining payment out of the proceeds of the living ? A. — If a beneficed clergyman incur a debt, you may bring an action against him, the proceedings thereon, to judgment inclusive, being the same as in ordinary cases. If on suing out a fi. fa. the sheriff returns that he is a beneficed clerk, and has no lay fee in his county, a writ, called a, fieri /acids de bonis ecclesiasticis, may be issued to the bishop of the diocese, whose duty thereupon is to appoint sequestrators, who take the tithes and other profits of the benefice towards satisfaction of the execution creditor's demand : (see Arch. New C. L. Pract. 328, 2nd edit.; Smith's Action at Law, 196, oth edit.) Q. — "What is a sequestration, and to what species of property does it apply ? Digitized by Microsoft® 92 EXAMINATION QUESTIONS AND ANSWERS. A. — A sequestration, in its most ordinary sense, signifies a kind of execution for a debt, and is most frequently used against a beneficed clerk or clergyman, in the manner above stated : (see Holth. Law Diet. 2nd edit.) Q. — What property may be seized under an elegit ? A. — la the first place, the sherifiF is to deliver to the execution creditor all the goods and chattels of the debtor (except his oxen and beasts of the plough), at an appraised price or value, and, if there be not enough to satisfy the judgment, the party's lands are to be extended. Formerly only a moiety of the freehold lands could have been extended, and not any of the copyholds; but by statute 1 & 2 Vict. c. 110, s. 11, the sheriff or other ofiicer executing any writ of elegit, or any precept in pursuance thereof, may make and deliver execution unto the party suing out the writ all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up judgment, or at any time afterwards, or over which such person shall, at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit: (see further, 1 & 2 Vict. c. 110, s. II; Arch. New C. L. Pract. 261, 2nd edit.; Smith's Action at Law, 200, 5th edit.; Chit. Arch. 9th edit.) Q. — What are the disabilities of a defendant under outlawry, and how must he regain his former rights? A. — Outlawry is, as its name imports, the putting of a man out of the law. An outlaw can have no rights against his fellow subjects ; he can maintain no action against any one ; he cannot even recover his costs against a plaintiff who sues him in a groundless action, and is nonsuited. His property is all forfeited to the Crown. His liberty is taken from hixn as soon as he can be found in England. In short, nothing is left him but his life and limbs, and even these were not safe at the common law ; for, previous to the reign of Edward the First, he was thought to have caput lupinum : (Smith's Action at Law, 65, 5th edit.) A defendant under outlawry regains his former rights by a reversal of the outlawry. This may be done either upon motion to the court, or by writ of error : (Arch. New C. L. Pract. 273, 2nd edit. ; Harding v. Homer, 27 L. T. Rep. 109.) Q. — Where it is desired to charge in execution a person already in the Queen's prison, which is now the proper course to be pursued so to charge a person in execution ? A. — A j)erson already in the Queen'sj)rison may now be charged in 52S£il^9S-^X_5_iU-4gsls_.eE£Ler made_upon affidayitJ;Eat judgHient.iuia G^jTsj^ned and is not satisfied.; and the service of such order upon the keeper ot'We prison for the time being has the effect of a detainer ; a writ of habeas corpus ad satisfaciendum being no longer necessary for such a purpose : (15 & 16 Vict. c. 76, s. 127.) Q- — If a sheriff remove goods seized by him under an execution against the effects of a tenant after notice that a year's rent is due to the landlord, without provision being made for payment of the rent ; has the landlord any, and what, remedy against the sheriff? -' A.- — Yes ; an application may be made to the court ; or an action may be brought against the sheriff for so removing the goods seized in execu- Digitized by Microsoft® COMMON LAW. 93 tion from the premises, without satisfying the landlord for a year's rent, after notice of its being due, under 8 Anne, c. 14. The statute requires the payment of the rent before the goods are removed from the premises ; and if, therefore, they be sold and removed, the sheriff will be liable for the whole amount of the rent due, although the goods may have been sold for less : (see Arch. New C. L. Pract. 252, 253, 2nd edit.; Smith's Action, 193, 5th edit.) Q. — If a debtor in execution escape from the custody of the sheriflF, or other person having the safe custody of such debtor, what remedy has the creditor ? A. — The creditor may bring an action on the case (not debt) against the sheriff. He may also proceed against the sheriff by attachment, which will only be stayed by the sheriff's paying the damage sustained by the creditor. The creditor may also sue out another ca. sa., or bring an action on the judgment : (see Arch. New C. L. Pract. 270, 2nd edit. ; Smith's Action at Law, 199, 5th edit.) HABEAS CORPUS, OR STATUTES SECURING PERSONAL LIBERTY OF SUBJECTS. Question. — State a few of the acts of Parliament securing the personal liberty of the subject ; and state in whose reigns they were passed. Answer. — They are the following : the 3 Car. I., commonly called the Petition of Right ; the 16 Car. I., c. 16, asserting the right to, rather than giving, a habeas corpus ; and the act commonly called the Habeas Corpus Act, 31 Car. 2, c. 2 (amended by 56 Geo. 3, c. 100), regulating the mode, &c., of obtaining a habeas corpus : (see 1 Steph. Com. 140, 141, 3rd edit.) Q. — What is the personal security acquired by the Habeas Corpus Act ; and what is the mode of obtaining a habeas corpus ? A. — The personal security acquired by the Habeas Corpus Act is the prompt issue and return to habeas corpus, so that a person unjustly detained in prison may obtain his release. A writ of habeas corpus is obtained from the court in term, and from a judge at chambers in vaca- tion : (see 3 Steph. Com. 7\0, et seq. 3rd edit. ; and see hereon Exparte Cobbett, 30L,T. Rep. 322.) AFFIDAVIT. Question. — Before and after an action brought, how must the aflida- vits be entitled ? Answer. — Before action brought it is sufficient to entitle the affidavit with the name of court in which you intend to proceed. After action Digitized by Microsoft® 94 EXAMINATION QUESTIONS AND ANSWBUS. brought the affidavit must be entitled in the cause, i. e., the Christian and surname of the plaintiff and defendant as well as the court : (Smith's Action at Law, 29, 5th edit.) Q. — May an affidavit in a cause to be used in courts or before a judge (not being an affidavit to hold to bail) be sworn before the attorney in the cause, or his clerk, each of them being a commissioner authorized to take affidavits in the country ? A. — By Rule Gen. 132, no affidavit of the service of process shall be deemed sufficient, if sworn before the plaintiff's own attorney or his clerk. To come within this rule, however, the commissioner must be not merely the law adviser of the party generally, but_his_attornejLilL that p_articular busingggj (Arch. New C. L. Pract. 609, 2nd edit.) 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 Rule Gen. 138, the adjiition and true place ofjibo^e of_every_pei;son making an affidavit must be inserted therein. 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 there be any interlineation or erasure in the jurat, the affidavit cannot be read or made use of : (Rule Gen. 140.) In such a case, the jurat must be struck out and re-written, and the affidavit re-sworn : (Arch. New C. L. Pract. 610, 2nd edit.) Q. — What is the form of the jurat when there is more than one deponent ? A. — Where there are several deponents, their names must appear severally in the jurat, in this way : " The above-named deponents, A., B., and C., were severally sworn," &c. (Rule Gen. 139.) Q. — Before whom are affidavits sworn in the country ? A. — They are sworn before commissioners appointed for that purpose : (Arch. New C. L. Pract. 598, 607, 2nd edit.) Q. — What is required to be sworn in an affidavit of " merits ?" A. — An affidavit of merits must state that the defendant hag '^ good defence to the action upon the merits ;" saying that he "is advised and believes " that he has a good defence on the merits, is %otsufe- cient : (see Arch. New C. L. Pract. 606, 2nd edit. ; Chit. Arch. 9th edit.) Q. — If there be two or more deponents to an affidavit, and the names of all be not mentioned in the jurat, or if the jurat omit to state the day on which the affidavit was sworn, what will be the consequence ? A. — If there be two or more deponents, the names of all must be stated in the jurat, or it cannot be used. So the jurat must state the day on which the affidavit is sworn, otherwise it shall not be read : (see Arch. New C. L. Pract. 610, 2nd edit.) Q. — Should an affidavit in support of an order to hold to bail, be entitled in the cause, and in the court in which the action is to be brought ? A. — If the affidavit be sworn before the issuing of the writ of sum- mons, it should not be entitled in any cause : {Hargrave v. Hayes 5 E. & B. 272) i but it should be entitled in the court in which the action is intended to be brought. But if there be a cause in court, the affidavit Digitized by Microsoft® COMMON LAW. 93 should be entitled in it as well as in the court : (see Smith's Action at Law, 29, 5th edit. ; Arch. New C. L. Pract. 599, 2nd edit. ; Pat. & Mac. C. L. Pr. 1119.) An affidavit, however, if sworn before a judge, may be used in the court of which he is a judge, though not entitled with the name of that court : (Rule Gen. 144.) 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 affiscted ? -^' — ^Affidavits to be used in any cause or civil proceeding in any of the superior courts of common law are now to be drawn up in the first person, and divided into paragraphs, and every paragraph is to be num- bered consecutively, and, as nearly as may be, to be confined to a distinct portion of the subject. No costs are to be allowed for any affidavit, or part of an affidavit, substantially departing from this rule : (Eule 2,- Michaelmas Vacation, 1854 ; Pat, and Mac. C. L. Pract. 1119.) ^ / WARRANT OF ATTORNEY AND COGNOVIT. Question. — What is the difference between a warrant of attorney and a cognovit ? Answer. — ^A warrant of attorney is a written authority to one or more attorneys t o appear for the party executing it in some court, and there t o receiv e ademration at the suit of the party to whom the warrant is given, and to__cQnBii^the gajae, or to suffer .judgment to pass against him by nil dicit, or otherwise. It also contains an authority to the attorney to execute a relea ssLDf jerrors, ; and on this account it is that a warrant of attorney must be under seal, because an authority or power to execute a deed, such as a release, must be by deed. But a warrant of attorney to confess judgment merely, need not be by deed : (Arch. New C. L. Pract. 529, 2nd edit.) A cognovit is a confession of an action 13 ■writing, with or without terms or conditions annexed to it. The action of course must be commenced before a cognovit can be given, but it may be given before declaration, or at any time after process is sued out : {Id. 528 ; Chit. Arch. 9th edit.) Q. — What proceedings are necessary to render a cognovit or a warrant of attorney a valid instrument ? A. — It must be executed in the presence of an attorney of one of the superior cour,ts, on behalf of the person executing it, expressly named by him, and attending at his request to inform him of Jhe nature, and_effect of such cognovit or warrant of attorney, before the same is executed ; wEch attorney must subscribe his nanTe as a witness to the due execu- tion thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney : (1 & 2 Vict. c. 110, s. 9.) So every cognovit or warrant of attorney in a personal action, in case the action be in the Court of Queen's Bench, or Digitized by Microsoft® 96 EXAMINATION QUESTIONS AND ANSWEES. a true copy of such cognovit or warrant of attorney, if tbe action be in any other court, shall, together with an affidavit of the time of the exe- cution thereof, be filed with. the_ officer acting, as clerk of -dockets .and judgments in the said Court of Queen's Bench, within twenty-one_daj:? next after the execution thereof, to render it or any judgment or exe- cution thereupon valid as against the assignees of the defendant if he should become bankrupt ; and if the cognovit or warrant of attorney is subject to a defeazance, the defeazance must be written on the same paper or parchment on which the cognovit is written, before the same or a copy thereof is filed, otherwise such cognovit or warrant of attorney shall be null and void to all intents and purposes: (see 3 Geo. 4, c. 39, and 12 & 13 Vict. c. 106, s. 136; Arch. New C. L. Pract. 528, et seq. 2nd edit. ; Pat. & Mac. C. L. Pract. 1022.) Q. — What should be done to insure the validity of a warrant of attor- ney in case of the party to it becoming bankrupt ? A. — It must be filed with an affidavit of its execution as detailed in the last preceding answer. Q. — Can an infant execute a cognovit ? A. — No ; if a cognovit have been given by an infant, the court will order it to be given up, or taken oif the file to be cancelled : (Arch. New C. L. Pract. 543, 2nd edit.) Q. — Is a joint warrant of attorney given by an infant and another binding on both parties ? A. — No; the court will set aside the warrant of attorney or judgment as to the infant, but will allow it to be enforced as to the other defendant. The court will, however, require the infancy to be made out by clear evidence, not being the affidavit of the defendant himself: (Arch. New C. L. Pract. 546, 2nd edit.) Q. — What is the advantage of filing a cognovit " under the statute,'' and within what period must it be so filed ? A. — The advantage obtained by filing a cognovit under the statute is, that if the defendant afterwards becomes bankrupt, it or any judgment or execution thereupon will be valid against his assignees. This must be done within twenty-one days after the execution of the cognovit : (see supra ; Arch. New C. L. Pract. 534, 2nd edit.; Q. — When a party gives a warrant of attorney, by whom must it be attested, and what must the attestation state ? A.- — (See supra and the next succeeding answer.) Q. — What are the principal requisitions of the statute 1 & 2 Vict. c. 110, relating to warrants of attorney, a strict compliance with which is required by the courts ? A. — The principal requisitions under the statute, and which the courts require to be strictly complied with, are as follow : — 1. There must be present an attorney of one of the superior courts on behalf of the defendant. 2. Such attorney must be expressly named by the defendant, and must attend at his request. This means merely that the attorney shall be employed by the defendant of his own voluntary act ; it is not neces- sary that the attorney be first named by him ; if the name of an attorney be suggested to the defendant by the plaintiff or his attorney, and he Digitized by Microsoft® COMMON LAW. 97 adopt the suggestion, and employ the attorney for the purpose, this, in the absence of fraud, will be sufficient. 3. The attorney's presence is required to inform the defendant of the nature and effect of the warrant of attorney. It' is not necessary that he should read it to him. And even if (wilhout collusion) he do not, in fact, inform the defendant of the nature and effect of the instru- ment, that will not affect its validity. 4. The attorney must subscribe his name as a witness to the due execution of the instrument, and must in the attestation declare himself to be the attorney for the person executing the warrant, and state that he subscribes as such attorney: (Arch. New C. L. Pract. 531, 2nd edit. ; and see Chit. Arch. 891, el seq. 9th edit.) Q. — What is required to enter judgment on a warrant of attorney above one and under ten years, and what above ten years ? A. — By Rule Gen. 26, leave to enter up judgment on a warrant of attorney, above one and under ten years old, is to be obtained by order of a judge made ex parte ; and if ten years old, or more, upon a summons fojEowj;ause. In one case the court refused to grant more than a rule to show cause, under the peculiar circumstances of the case, although the warrant was not ten years old. The parties,_ however, may dispense with_the necessity of applying thus toJiie -couct^ by a stipulation to t^t effect Jn .the defeazance :.(Arch. New C. L. Pract. 539, 2nd edit.) Q. — A warrant of attorney, dated 21st of July, authorized judgment to be entered up, " as of Trinity Term last, Michaelmas Term next, or of any subsequent term." Judgment was signed in August ; was this judgment regular ? A, — No ; the judgment not being entered up in a term, as authorized by the warrant. The judgment must be signed in strict pursuance of the warrant : (see Arch. New C. L. Pract. 542, 2nd edit. ; Chit. Arch. sup.) Q. — When a warrant of attorney is executed by a party in custody, is anything necessary to be done beyond what would be necessary if he was not in custody ? A. — Formerly a warrant of attorney, or cognovit, given by a prisoner in custody on mesne process, must have been executed in the presence of his attorney, and attested by him. This rule of practice, however, is now no longer confined to the case of a prisoner, but is made general by Stat. 1 & 2 Vict. c. 1 10, s. 9 ; and which has been before considered : (see Arch. New C. L. Pract. 531, 2nd edit.) Q. — ^A warrapt of attorney to confess a judgment for 1000/. having been given by two parties jointly (and not jointly and severally), one of them dies before judgment is entered up ;, can the party to whom the warrant of attorney was given enter up judgment against the survivor ? A. — No ; the court will not allow judgment to be entered up against survivor, under any circumstances : (Arch. New C. L. Pract. 539, 2nd edit.) Q. — Where a judge's order is made by consent, given by any trader defendant in any personal action, authorizing judgment to be entered up, and execution issued, what is necessary to be done with such order, so as to prevent the same, and the proceedings under it, from becoming null and void? A. — In order to render the order valid as against the assignees of the defendant, if he become bankrupt, a true copy of it, together with an Digitized by Microsoft® 98 EXAMINATION QUESTIONS AND ANSWERS. affidavit of the time of such consent being given, and a description of the residence and occupation of the defendant, must be filed with the officer acting as clerk of ^ the dockets and judgments of the Court of Queen's Bench, within twenty- one days after the making of such order, in the same manner as in the case of a warrant of attorney or cognovit : (12 & 13 Vict. c. 106, s. 137 ; Arch. New C. L. Pract. 547, 2nd edit.) Q, — What, if anything, is necessary to be done to make a bill of sale of chattels good, and under what law or regulation ?(a) A.— To make a bill of sale of chattels good, it must be_ registered within twenty-one days after the making or giving of the bill with the officer acting as clerk of dockets and judgments in the Court of Queen's Bench, in like manner as a warrant of attorney in any personal action is required to be filed. This is required by stat. 17 & 18 Vict. c. 36 : (see Arch. New C. L. Pract. 246, 2nd edit.; Chit. Arch. 616, et seq.. 9th edit.) EJECTMENT. Question. — What is an action of ejectment, and in what cases is eject- ment usually brought ? Answer. — This is an action by which the possession of land is reco- vered, and, prior to the Common Law Procedure Act, 1852, it was alto- gether an anomalous and fictitious proceeding. It originated as far back as the reign of Edward III., in consequence of the disfavour into which the dilatory and intricate real and mixed actions fell. It was then a species of personal action by the tenant for a term of years, claiming damages for a forcible ouster from the land demised. The courts in the latter end of the fifteenth century having determined that the plaintiff was also entitled to the recovery of the land, it became the ordinary mode of enforcing a right of entry, and was gradually treated as a mixed action. By various fictions this remedial proceeding was extended, until it became, and is now, the only mode of recovering land ; it is wholly remodelled by the 15 & 16 Vict. c. 76 : (Smith's Action at Law, 233, 5th edit. ; Pat. & Mac. C. L. Pr. 932.) Whether ejectment is, by the above act, a real action is by no means easy to say. It seems to fall under the definition of a real action, because it now claims the specific recovery of land without damages. But in its incidents it has no con- nection whatever with the antiquated remedies to which that appellation commonly belongs : (see 3 Steph. Com. 451 n., 3rd edit.) And for these reasons it was not mentioned as a real action when enumerating and defining that class of actions : (see ante, p. 3.) Q. — What is the first proceeding in an action of ejectment ; and how, and on whom, and where, is it to be served ? (a) Also asked in Conveyancing. Digitized by Microsoft® COMMON LAW. 99 A. — Instead of the former anomalous and fictitious mode of proceeding in ejectment (a) a writ is now issued, (directed to. thg.i>ersons in posses- sion by name, and to all.|i.ersous,.fintitia4-to. defehi the, possession of Jjie property clait nej,, which property shall be described in the wrii wjth reasonable certainty : (see 15 and 16 Vict. c. 76, s. 168.) The writ shall s^itajhe naniea-X)£«ilkthe ..pariies. iu- whom .the,title isjaUfig£i.taJi?e, and command the persons to whom it is directed to appear wiJthjjQjixteen days after service thereof, in the court from which it is issued, to defend the possession of the property sued for, or so much thereof as they may think fit; and it shall contain a notice that, in default of appearance, they will be turned out of possession. And the writ shall bear teste on the day it is issued, and shall be in force for three months '■ {Id. s. 169.) The writ is to be served in the same manner aFan ejectment has hereto- fore been served, or in such, a manner as the. court, or a judge,, shall order ; and in case of vacant possession, by posting a copy thereof upon the door of the dwelling-house or other conspicuous part of the property : {Id. s. 170.) It should be served either upon the tenant in possession, or his wife : this is the only regular mode of service. On the tenant him- self it may be sei'ved anywhere, even abroad. Upon the wife it may be served either upon the premises for which the action is brought, or at the husband's dwelling- house, or at any other place, if it appear fr.om the affidavit that the wife was living with her husband at the time. So service upon a servant or child, or other person upon the premises or elsewhere, if the tenant acknowledged he had received the declaration, was deemed equivalent to personal service : (see further Arch. New C. L. Pract. 279, et seq. 2nd edit. ; Pat. & Mac. C. L. Pract. 935, &c.; Smith's Action at Law, 237, 5th edit.) Q. — How many days has a defendant to appear in actions of eject- ment? A. — In ejectment a defendant has sixteen days after service of the writ to appear and defend the possession of the property sued for : (15 & 16 Vict. c. 76 ; Pat. & Mac. New C. L. Pract. 939 ; Smith, sup.) Q. — Within what period can an action of ejectment be brought ? A. — Within twenty years next after the time at wliich the right to bring such action shall have first accrued to some person through whom the person bringing the action claims ; or if such right shall not have accrued to any person through whom he claims, then within twenty .years next after. the time at which the right to bring such action shall have first accrued to the person bringing the same : (3 & 4 Will. 4, c. 27, s. 2. ; Browell's Keal Pro. Stats. 21, &c.) Q. — Is an equitable title sufficient to found this action ? A. — Afl equitable title will not be sufficient to entitle the party to recover, for it is a fundamental rule that courts of law take cognizance of legal rights only. Q, — Can process in ejectment be served on the wife of a tenant, and under what circumstances ? ' A. — ^Process in ejectment may be served upon the wife, either upon the premises for which the action is brought, or at the husband's dwell- ing-house or place of business, or at any other place, if it appear from (ft) As to the mode of proceeding priov to the Procedure Act, 1852, the student is referred to Smith's Action at Law, p. 233, et seq. 5th edit., or to any of the old text books. Digitized b^Microsoft® 100 EXAMINATION QUESTIONS AND ANSWEES. the affidavit that the wife was living with her husband at the time. And a service upon the wife upon the premises will be good, even although the husband have left the kingdom and settled abroad. The person serving it should deliver it personally to the wife : (see supra, Arch. New C. L. Pract. 279, 2nd edit. ; Pat. & Mac. C. L. Pract. 936.) Q. — What are the steps to be taken in an action of ejectment, before the cause is at issue ? A. — By the Procedure Act, 1852, it is enacted, that if an appearance be entered, an issue is at once to be made up, without any pleadings, by tlie claimants or their attorney, setting forth the writ and stating the fact of the appearance, with its date, and the notice limiting the defence, if any, of each of the persons appearing, and directing the sheriff to summon a jury to try tlie issue : (see s. 178 ; Smith's Action at Law, 238, 5th edit. ; Chit. Arch. 974, 9th edit.) Q. — In ejectment against a tenant in possession, what is required to enable a landlord to come in and defend ? A. — The landlord must make an affidavit showing that he is in pos- session of the land by his tenant, and apply to a judge for leave to appear and defend. And he must, in his appearance, state that he appears as landlord: (15 & 16 Vict. c. 76, s. 172, 173 ; Smith's Action, 237, 5th edit.) Q. — In an action of ejectment where a party wishes to defend as landlord, or devisee, or mortgagee, what steps should he take to be let in and defend ? A. — He must take the steps detailed in the preceding answer. For the I72nd sect, of 15 & 16 Vict. c. 76, empowers any other person not named in the writ to come in and defend, on obtaining leave and making the necessary affidavit. It has been decided that where a person is neither named in the writ, nor in possession of the property, either by himself or his tenant, he cannot obtain leave to come in and defend the action : ( TTiompson v Tomkhison, 1 1 Exch. 442 ; see also Law Times, vol. 29, p. 7.) But he may move for a new trial. Q. — In an action of ejectment the defendant obtains a verdict. Is the plaintiff's claim to the premises sought to be recovered barred by such verdict ? A. — Yes ; a verdict for tie defendant has the effect of for ever barring and determining the plaintftPgji ght of actio n : (Smith's Action at Law, 138, 5th edit.) But he may move for a new^ trial. Q. — ^When the tenant cannot be met with, may the proceedings in ejectment be served on any one of the family, without anything further being done ? A. — Yes ; as upon the wife, if shown by the affidavit of service that she was living with her husband at the time. And service upon a child or servant is deemed equivalent to personal service upon the tenant, if he afterwards acknowledges he has received the writ. If the service be merely upon the son or servant, &c., of the tenant, yet if, from circum- stances .stated in the affidavit of service, it appears that the tenant kept out of the way for the purpose of avoiding personal service, and the de- ponent add his belief that he did so, the court will first grant a rule to show cause why the service should not be deemed good service, and will direct the manner in which the rule shall be served : (Arch. New C. L. Pract. 282, 2nd edit. ; Pat, and Mac. C. L. Pr. 936.) It should be Digitized by Microsoft® COMMON LAW. 101 remembered that the writ is now served as the declaration wns formerly served, or as the court or judge may order: (15 & 16 Vict. c. 76, s. 170.) Q. — Can the unsuccessful party in ejectment retry the same question as often as he pleases without leave of the court? U A.-^By the 17 & 18 Vict. c. 125, s. 93, it is provided, that if any person shall bring an action of ejectment, after a prior action of eject- ment for the same premises has been unsuccessfully brought by such person, or by any person through whom he claims, against the same de- fendant, or any person through whom he defends, and whether it has been disposed of by discontinuance, or nonsuit, or judgment for the defendant,- the' court, or a judge, maji_on theJagpligsiifinjjjFihe^defeadapt at any time after appearance, order the plaintiff to give^the^dgfendant security for payment of his costs, and_staj_all further pro ceedings u ntil tlie^'curity be^given : (Smith's Action at Law, 2^37 StlT'edit.) Q. — ^When a plaintiff has recovered verdict in ejectment, how does he recover possession? A. — Upon a finding for the claimant, judgment may be signed, and execution issue for recovery of possession of the property, or such part thereof as the jury shall find the claimant entitled to, and for costs, within_^u(JllJimfii^,not_exceedi^^ inl_ejjji^afi;erJhfi verdict, as the^ court, or judge, before whom the cause is tried, shall order; and if no such order be made, then onthe fifth day in term after the, verdict, or within fourteen days after^sucFyerdTct, whichever shall first happen : (1'3"& 16 Vict. c. 76. s. 184.) The property is recovered, generally, by writ of possession, and the costs by any of the ordinary writs of execu- tion, as a fi.fa.; but by the 187th sect, there may be either one writ or separate writs of execution for the recovery of possession and for costs : (see Arch. New C. L. Pract. 291, 2nd edit.) Q. — At whose suit must an action for mesne profits be brought, and against whom? A. — After judgment in ejectment the plaintiff may proceed by action of trespass against the defendant for the recovery of mesne profits : (Patr& Mac. C. L. Pract. 975.) By sect. 208 of 15 & \Q Vict. c. 76, after enacting that error may be brought upon any jud^ent in ejectment, &c., it further enacts, that it shall be lawful for the court wherein execution ought to be granted upon affirmation (of the judgment), or on discontinuance, upon application of the claimant, to issue a writ to inquire as well of the mesne profits, as of the damage by any waste committed after the first judgment in ejectment, which writ may be tested on the day it shall issue, and be returnable immediately after the execution thereof; and upon the return thereof judgment shall be given, and execution awarded, for such mesne profits and damages, and also for costs of suit. And, by sect. '214, it enacts, that wherever it shall appear on the trial of any eject- ment, at the suit of a landlord against a tenant, that such tenant, or his attorney, hath been served with due notice of trial, the judge before whom such cause shall come on to be tried shall, whether the defendant appears upon such trial or not, permit the claimant on the trial, after proof of his right to recover possession of the whole or any part of the premises mentioned in the writ in ejectment, to go into evidence of the mesne profits thereof, which shall or might have accrued from the day Digitized by Microsoft® 102 EXAMINATION QIIESTIONS AND ANSWERS. of the expiration of the tenant's interest in the same down to the time of the verdict, or to some preceding day, to be specially mentioned therein; and the jury, on the^ trial, finding for the claimant, shall, in such case, give their verdict upon the whole matter, both as to the recovery of the premises, and also the amount of damages to be paid for mesne profits: and this does not prevent the landlord from bringing an action for the mesne profits accruing from the verdict, or the day specified therein, down to the day of delivery of possession of the premises recovered. This action is brought against the person actually withholding possession: (see Pat. & Mac. C. L. Pract. 9Y5 ; Arch. New C. L. Pract. 292, 296, 2nd edit. ; Chit. Arch. 109, &c., 9th edit.) ARBITRATION, Question. — What is the usual mode of submitting a question to arbitration 1 Answer. — Either by agreement of reference, or by an order of Nisi Prius ; or, at all events, this was formerly the case. But now, by the Procedure Act, 1854, sects. 3 to 16, powers are given to the court or a judge, after action brought, to compel the parties to refer to arbitration, where the matter in dispute consists wholly, or in part, of matters of account, which cannot conveniently be tried in the ordinary way, or where the parties have commenced the action, contra ry to an agree.- ment that any existing or future differences shoiiI3 be referred to arbitration^ and to givejiirectipn as to costs.. The order of the court or judge, or the awardljf the arbitrator, is enforceable by the same process as the finding of a jury upon the matter referred. Prior to this act there was no method, except by consent of both parties, of obtaining a decision by arbitration : (see further Stnith's Action at Law, 245, et seq. 5th edit.) Q. — A. brings an action against B. for recovery of a disputed debt ; after action brought, the cause is referred to an arbitrator by a judge's order ; before award made, A. wishes to revoke the arbitrator's authority. Is he at liberty to do so of his own will, or must he have any and what leave? A. — A. cannot revoke the arbitrator's authority without first obtaining leave of the court or a judge; and the arbitrator is to proceed with the reference, and make his award, notwithstanding any revocation that may be made without leave: (see 3 & 4 Will. 4, c. 42, s. 39; Arch. New C. L. Pract. 407, 2nd edit. ; Chit. Arch. 1544, 9th edit.) Q — If you are dissatisfied with an award, how must you apply to set it aside, and within what ;ime ? A. — The mode in which these applications are made is by motion to the court for a rule nisi. And by Rule Gen. 169, in the rule nisi must be stated all the objections to the award, intended to be insisted upon at the time of making such rule absolute. And this rule extends also to cases where merely a certificate, and not an award, has been given by the arbitrator. But, before moving to set aside an award, the order or agreement of submission must be made a rule of court. Digitized by Microsoft® COMMON LAW. 103 By Stat. 17 & 18 Vict. c. 125, s. 9, all applications tp set aside any award, made on a compulsory reference under this act, shall and may be made within Jhe_flrat.jeveajlay§_of_the term next followipg.Jljg.,pub- Jjfiationofthe jawai^d. to the partiea*. whether made in vacation or term; and if no such application be made, or if no rule be granted thereon, or if granted, and afterwards discharged, such award shall be final between the parties. In all cases where the submission has been made a rule of court under Stat. 9 & 10 Will. 3, c. 15, application must be made before the last day of the termnext after jthe award, or umpirage thereon, shall be made and pubUshed, to set it aside for corruption of the arbitrator, or for any other cause. " When the submission is by rule of court or judge's order, although it does not come within the above statute, yet, in analogy to the statute, the court require the motion to set aside an award in such a case to be made before the end of the term next after publishing fhe award. But the court are not bound by the statute in these cases. If the submission be by order of Nisi Prius, and the reference be of the cause alone, and a verdict be taken, a party intending to move to set aside the award or certificate of the arbitrator must do so within Jihg^time_allo5?£d^&H:-mojcing.-fora_new trial, unless a sufficient reason for the delay be shown : (Arch. New C. L. Pract. 434 — 436, 2nd edit. ; Chit. Arch. 1579, et seq. 9th edit.) Q. — State the usual grounds of setting aside an award. A. — The following are the usual grounds of setting aside an award: — Misconduct of the arbitrator. The award not pursuing the submission. That the arbitrator has exceeded his authority. That the arbitrator has not awarded on all the matters referred to him. That the award is uncertain. That it is inconsistent. That it is not final. By stat. 17 & 18 Vict. c. 125, s. 8, power is given to the court or a judge to remit matters referred, or any of them, to the consideration of the arbitrator, in references under this act. And it has been held that this section extends to references by submission, if made a rule of court : {Morris v. Morris, 27 L. T. Rep. 103.) Q. — Has an arbitrator the same power to certify as to costs which the judge would have had, if the cause had been tried before him at Nisi Prius? A. — Not unless a power be given him so to do by the submission or order of reference: (see Gray on Costs, 409, 410, 429; L. T. vol. 27, p, 103. ; Chit. Arch. 1534, 1573, 9th edit.) Q. — ^What are the means of enforcing an award, where there is no cause pending,'and the submission contains no clause to make it a rule of court ? A. — In such a case, the mode of enforcing the award is by action of debt on the bond of submission ; or by action of covenant, if the sub- mission be by any other deed ; or by assumpsit, if the submission be by agreement, not under seal, or by parol; or by debt on the award, if the award be for payment of money only: (Arch. New C. L. Pract. 425, 2nd edit.) But by the 17 & 18 Vict. c. 125, it is provided, that, for the future, every agreement or submission to arbitration by consent, whether by deed or instrument in writing, not under seal, may be made a rule of court, on the application of any party thereto, unless the agree- ment or submission shows a contrary intention : (sect. 17.) Digitized by Microsoft® 104 EXAMINATION QUI5STIONS AND ANSWERS. Q. — How would you proceed to enforce an award under submission to arbitration, after it is made a rule of court? A. — By attachment. But the award must contain an order by the arbitrator to pay the money, or do the act awarded ; for otherwise the not doing it will be no breach of the rule, and the court cannot grant an attachment ; or where the award is only for payment of money or costs, the party may enforce it by a writ of execution : (see Arch. New C. L. Pract. 425 to 427, 432, 2nd' edit. ; and as to enforcing awards generally, see Chit. Arch. 1589, et seq. 9th edit.) DISTRESS. i^uestion. — For what are distresses usually taken ? Answer. — 1. The most usual injury for which a distress may be taken, is that of non-payment of rent. And it is now a universal principle that a distress may be taken for any kind of rent in arrear, the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do suit to the lord's court. 3. For amercements in a court leet, but not for amercements in a court baron, without special prescription to warrant it. 4. Where a man finds beasts of a stranger wandering in his grounds, damage feasant. 5. Lastly, for several duties and penalties inflicted by special acts of Parliament, as for assessments made by commissioners of sewers, or for the relief of the poor, for particulars of which the reader must refer to the statutes them- selves. But rent cannot be distrained for, unless the amount be certain : (see 3 Steph. Com. 342, 343, 3rd edit.) Q. — What may be distrained, and what things are privileged from distress, for rent? A. — It is a general rule that all chattels, personal, found upon the premises, as well the goods of strangers as of the tenant, are liable to be distrained, unless particularly protected or exempted. And the following things are privileged or protected: — 1. Anim^,ls fera naturm. 2. Whatever is in the personal use or occupation of any man, is, for the time, privileged from distress, in order to prevent the danger which otherwise might arise of a breach of the peace ; as an axe with which a man is cutting wood, or a horse while a man is riding him ; but horses drawing a cart may (cart and all) be distrained for rent arrear. 3. Things delivered to a person exercising a public trade, to be carried, wrought, or managed in the way of his trade ; as cloth at a tailor's. 4. Things in the custody of the law, such as property already taken damage feasant, or in execution. 5. Generally money, but not if in a sealed bag. 6. Everything which cannot be returned in as good a con- dition as when distrained; as milk, fruit, and the like. But corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may now be distrained by stat. 2 Will. & M. c. 5. 7. Things fixed to the freehold ; as caldrons, windows, dooi-s, and chimney-pieces. So corn growing could not be distrained till 1 1 Geo. 2, c. 19. Besides the preceding articles which are absolutely privileged, the following are Digitized by Microsoft® COMMON LAW. 105 privileged, sub modo : beasts of the plough and sheep, and instruments of husbandry; and the instruments of a man's trade or profession, as the axe of a carpenter, the books of a scholar, and the like ; all which are exempt, provided there be other sufficient distress on the premises: (see 3 Steph. Com. 344 to 347., 3rd edit; Arch. Land. & T. \\\, et seq. 2nd edit.) Q. — How are distresses made; and how disposed of? A. — In the first place, all distresses must be made by day, unless in the case of damage feasant, an exception being there allowed, lest the beasts should escape before being taken. And, in general, the distress must be on the premises. The distress is made either by the landlord or his bailiff, entering on the demised premises; formerly, during the continuance of the lease, but now, if the tenant hold over, the landlord may distrain within six months after the determination of the lease ; provided his own title or interest, as well as the tenant's possession, continue at the time of the distress. If the landlord does not find sufficient distress on the premises, formely he could resort nowhere else ; but now, by 9 Anne, c. 14, and 11 Geo. 2, c. 19, the landlord may dis- train any goods of his tenant, carried off the premises fraudulently or clandestinely, wherever he finds them, within thirty days after, unless they have been bona fide sold for a valuable consideration. The whole amount should be distrained for at once, unless there is not sufficient distress on the premises. When the distress is taken, the things dis- trained must be impounded, which may be on the premises, it being shown to be a fit and convenient place: (11 Geo. 2, c. 19.) If the tenant or owner do not, within five days after the distress is taken, and notice in writing of the cause given to him, replevy the same, the dis- trainer may have the same appraised and so ld : (see 3 Steph. Com. 348 to 352, 3rd edit.; Arch. Land. & T. 125, tt seq. 2nd edit.) Q. — Can an outer, or any, and what other, door be broken open, in order to make a distress? A. — An outer door cannot be broken open for the purpose of making a distress. But when the party making the distress is in the house, an inner door may be broken open : (Arch. Land. & T. 125, 2nd edit.) And where goods have been fraudulently rembved and locked up to pre- vent a distress, the landlord may, by the assistance of the peace officer of the parish, and oath having been made before a justice, in case it is a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein, break open, in the daytime, the place where the goods have been removed to: (11 Geo. 2, c. 19; Steph. Com. 349, 3rd ^dit.) Q. — What do you understand by the expression " cattle levant and couchantf A, — The expression literally means, rising up and lying down, but it is chiefly used in respect to distresses. Thus, if lands were not suffi- ciently fenced, so as to ^eep out cattle, if the landlord or tenant is bound to do so, the landlord or tenant cannot distrain them till they have been levant and eouehant on the lands ; that is, have been long enough there to have lain do-w?fi and risen up to feed, which, in general, is held to be one night at les^st : (see further 3 Steph. Com. 345, 3rd edit.) Q. — In what cases may cattle be impounded; and, if impounded for Digitized by l\iicrosoft® 106 EXAMINATION QUESTIONS AND ANSWERS. an excessive sum, what are the remedies, and against the party im- pounding, or against the pound keeper? A. — As before stated, cattle may be impounded on a distress for rent arrear; so they may be impounded for a distress damage feasant, and this may be made (even in the night) by the owner of the land on which the damage is done, or by a commoner. The cattle must be taken while on the land, but it is not generally necessary that they should have been levant and couchant: (Co. Lit. 161; 3 Steph. Com. 143, 3rd edit.; Arch. Land, and T. 333, 2nd edit.) By the Statute of Marlebridge, the party making the excessive distress may be grievously amerced for the excess of such distress. Besides this amercement, an action on the case, founded on the above enactment, lies at the suit of the party grieved. And this is the proper remedy: (Arch. Land. & T. 296, 2nd edit.) The action must be brought against the impounder, and not against the pound keeper, for he is not liable, unless he has exceeded his duty, and assented to the trespass ; for a pound keeper is bound to receive every- thing offered to his custody: (see Selw. N. P. 685, 11th edit.) Q. — Can landlords distrain the property of a lodger or third person for rent due from their own tenants, and are there any exceptions ? Sup- pose they are implements of trade, how then ? A. — It has already been stated, that all personal goods upon the premises may be distrained, except things fixed to the freehold, and other exempted articles (see ante, p. 104); and it will make no differ- ence if they be the goods of a stranger: (Arch Land. & T- 122, 2nd edit.) But the goods of a third person cannot be distrained if there be other sufficient distress, on the premises available : {Keen v. Priest, 32 L. T. Rep. 319.) Q. — When a landlord distrains for rent, after what time can he pro- ceed to sell the goods distrained ? , ' A. — As before seen, by stat. 2 W. & M. c. 5, the party distraining shall not sell the goods within five days next after the distress taken, and notice of the cause of the distress given. The five days must be reckoned exclusive of the day of the distress and the day of sale. But the land- lord is not bound to sell immediately on the expiration of the five days, but is allowed, by law, a reasonable time afterwards for the appraisement and sale. Before the sale, the goods must be appraised by two sworn appraisers. The oath is administered by the constable of the hundred, parish, or place where the distress was taken. The five days are allowed for the tenant to replevy the goods: (Arch. Land. & T. 138, 2nd edit.; 3 Steph. Com. 352, 3rd edit.) Q. — Is the summary remedy of a landlord for rent suspended, if he take a note, bill, or bond? A. — No ; for the rent is of a higher nature, ^and the acceptance of a security of an unequal degree is no extinguishment of the claim : but a judgment obtained upon a bond would be an extinguishment of it : {Harris v. Shipway, and Ewer v. Lady Clifton, Bull. N. P. 182.) Q. — Where a landlord grants a mortgage, and afterwards lets the pre- mises by lease, can the mortgagee distrain if the tenant have not attorned to him, or what remedy has he against the tenant; and would the remedy be the same if a lease of the premises had been granted beford the mortgage ; and if not, what would be the difference ? A. — If a lease is made by a mortgagor after the mortgage, the Digitized by Microsoft® COMMON LAW. 107 mortgagee, although he may treat the lessee as a wrong-doer and bring ejectment, yet he cannot distrain or sue the lessee for the rent in arrear, for there is no relation of landlord and tenant between them ; unless, indeed, they create a new tenancy, as by the tenant's agreeing to pay the rent to the mortgagee, and his accepting it. But this will only create a tenancy from year to year, and merely amounts to an admission of a tenancy then subsisting, and will not entitle the mortgagee to distrain for rent previously owing. The mortgagee merely giving notice to the tenant of his mortgage, and requiring the tenant to pay rent to him, does not create the relation of landlord and tenant between them. If the lease be prior to the mortgage, the mortgagee may, after giving notice to the tenant in possession, distrain for rent in arrear at the time of the notice, as well as for rent which may accrue after such notice, for the legal title is in the mortgagee. His remedy is on the lease as assignee of the reversion: (see Rogers v. Humphreys, 4 A. & E. 313; Arch. Land. & T. 12, 115, 2nd edit.) Q. — Under the Tithe Commutation Act, to whom is the tithe-owner to apply in the first instance for his rentcharge ; and, if not paid, what proceedings must he adopt, and against whom ? A. — The tithe-owner applies to the tenant in possession for his rent- charge. This rentcharge is payable half-yearly. Ten da ys' notice must be given atjjig usual^or last known place of abode oi the tenant in pos- session. In case of nOTpaymeni by the tenant witiiiojtwenty-one, day^. after the rentcharge has become due, and after such notice, the owner may distrain, upon the lands liable for the arrears, and dispose of the 3Istress, when taken, in the same manner as a distress for rent. If the rentcharge is in arrear for forty: da,y-S, and , no sufficieat distress can be found on the premises, the owner may have a writ directing the sheriff to assess the arrears, and may a fterward sue out a writ of possession,, and keep possession of the premises charged until the arrears . and UQS.ts are fully satisfied. But it is provided, that no more than two years' arrears shall be recovered at any one time, either by the distress or writ of execution: (see 6 & 7 Will. 4, c. 71 ; 3 Steph. Com. 86, 3rd edit.) Q. — "What is the remedy for a wrongful distress ? A. — The remedy for a wrongful distress is generally either by an action of trespass, or on the case, or by an action of replevin ; so trover will lie, as where the landlord has distrained things which are not dis- trainable : (see Arch. Land. & T. 280, et seq. 2nd edit.) It may be stated that where an irregularity occurs in taking a distress, the dis- trainor is not now, as formerly, a trespasser ab initio, if any rent is justly due: (11 Geo. 2, c. 19, s. 19.) Digitized by !\}liaosoft® 108 EXAMINATION QUESTIONS AND ANSWERS. REPLEVIN. Question. — In what cases is replevin usually made? and state the nature of the action. How is it carried on in the County Court, and how in the court above ? Answer. — The action of replevin is one of the remedies the law gives for goods wrongfully taken. ' It is usually brought where goods have been taken as a distress. ; The action lies only for personal chattels, and not for trees growing, or things fixed to the freehold, &c. : (Arch. Land. & T. 282, 2nd edit.; and see Smith's Action at Law, 45, 5th edit.) In the County Court it is carried on by entering a plaint therein ; and, on entering it, the plaintiff must specify and describe, in a statement of particulars, the_cattle or_good3^ndj3hattela-taken under the distress , and, tbeJaking he complains of. The defendant is then summoned ; and on the day appointed for appearance, the cause is heard in a summary way, as in other actions in the County Courts ; or it may be tried by a jury, if either party wishTII As soon as the cause has been removed into the court above, the defendant should enter an appearance to it. The plaintiff then declares, or may be compelled, by the defendant giving him notice so to do, within four days, otherwise judgment. The defen- dant may then be compelled to avow, by giving him notice to do so within eight days, otherwise judgment. The defendant may then give the plaintiff notice to plead in bar in four days, otherwise judgment. The issue is the same as in ordinaiy cases, but it may be made up by either plaintiff or defendant, as both parties are actors in replevin. For the same reason either party may make up the nisi prius record, and give notice of trial. The judgment for the plaintiff awards damages for the unlawful taking. The judgment for the defendant at common law is, that he have a return of the goods irrepleviable for ever, and his costs. If the distress was for rent, under the stat. 1 7 Car. 2, c. 7, it is that the defendant recover the amount of the arrears of rent, or value of the goods as found by the jury, and his costs : (see Arch. New C. L. Pract. 305 to 310, 2nd edit.; Smith's Action at Law, 253 to 256, 5th edit.) Q- — By whom are replevins now granted, and in what court may an action of replevin be commenced ? A. — By the 19 and 20 Vict. c. 108, s. 63, it is enacted that the powers and responsibilities of the sheriff with respect to replevin bonds and replevins, shall henceforth cease ; and the registrar of the County Court of the district in which any distress subject to replevin shall be taken, shall be empowered, subject to the regulations hereinafter contained, to approve of replevin bonds, and to grant replevins, and to issue all neces- sary process in relation thereto, and such process shall be executed by the high bailiff. An action of replevin maybe commenced in the superior courts of common law; but if the replevisor wishes to commence his action in a superior court, he must, at the time of replevying, give security , to be approved by the registrar, for such an amount as such registrar shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been ihade, and the probable cost of the cause, conditioned to commence an action of replevin against the distrainor in Digitized by Microsoft® COMMON LAW. 109 such superior court as shall be named in the security, within one week.from the date thereof, and to prosecute such action with effect, and without delay, and unless judgment is obtained by default, to prove before such superior court that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise, was in question, or that such rent or damage exceeded 20/., and to make return of the goods, if return be adjudged : (see sect. 60.) Proceedings may, however, be commenced in the County Court if the replevisor shall wish ; he at the time of replevying giving security, to be approved by the registrar, for such an amount as shall cover the alleged rent or damage, and all costs, conditioned to commence his action of replevin in the County Court of the district in which the distress is taken, within one month after the date of the secu- rity, and to prosecute with effect, and to return the goods, if a return be adjudged (sect. 66; see also Co. C. Rule, 134 to 138.) Q. — How would you proceed to remove an action of replevin into the superior courts? A. — The 19 and 20 Vict. c. 108, enacts, any action of replevin brought in a County Court shall be removed into any superior court by certiorari. The defendant is to apply to such superior court, or to a judge thereof, for such writ, and to give security, to be approved by the Master of such superior court, for such amount, not exceeding \50l., as such Master shall think fity.;conditioned to defend such action with effect, and (unless the replevisor shall discontinue, or not prosecute such action, or become nonsuit therein) to prove before such court that the defendant had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise, was in question, or that the rent or damage in respect of which the distress shall have been taken exceeds 20Z.: (see sect. 58.) Q. — Name the various pleadings in an action of replevin ? A. — ^They are : 1. The declaration, by the plaintiff.' 2. The avowry, by the defendant, if the goods were taken in his own right ; if in the right of another, the pleading is called a cognizance. 3. The plaintiff's next pleading is called a plea in bar, and that of the defendant a replica- tion, and so on : (see Smith's Action at Law, 255, 5th edit.) Q.—Wha.t is the meaning of the term " avowry ?" A. — It is the justification plea of the defendant, when he insists the goods were lawfully taken by him in his own right : (Holth. Law Diet. 2nd edit.; Smith, supra.) Q. — What is the first writ in replevin called? A. — Formerly the only mode of disputing the right of distress was by a writ which issued out of Chancery, called replegiari facias ; it com- manded the sheriff to deliver the goods to the owner, and afterwards do justice in respect of the matter in dispute in his own County Court. But by 52 Hen. 3, c. 21, the sheriff was authorized to replevy the goods without writ. And by 9 & 10 Vict. c. 95, ss. 119 to 121, replevin for rent arrear, or damage feasant, may be brought in the new County Courts without writ (see Smith's Action at Law, 253, 5th edit.); or, as before seen, it may be brought in a superior court. Q.—^ls a defendant in replevin in a different character from a defend- ant in any other action ? and if so, explain the difference. Digitized by Microsoft® 110 EXAMINATION QOESTIONS AND ANSWERS. A — Yes ; he is considered in the light of a plaintiff. Either party may make up the issue, and give notice of trial ; and also make up the nisi prius record, and enter it with the associate or judge's marshal for trial : (see Arch. New C. L. Pract. 308, 2nd edit. ; Smith's Action at Law, 254, &c., 5th edit.) COUNTY COURTS. Question. — Are the County Courts modern introductions, or are they of any antiquity; how far back does that' antiquity extend; and name one or more writers by whom they are mentioned ? Answer. — County Courts are of great antiquity ; they existed at com- mon law, and are noticed in the laws of Edward the Elder. They are mentioned by Spelman, Finch, and other ancient writers. But the ancient County Court was not a court of record, like the present : (see Steph. Com. 377, 378, 3rd edit.) Q. — In what cases have the superior courts concurrent jurisdiction with the County Courts ? A. — The superior courts have concurrent jurisdiction with the County Courts in all actions on contract, for any sum between 20/. and 501.; and in such actions ex delicto as are within the jurisdiction of the County Court, where the damages to be recovered are between 5Z. and 50/.; and in these cases the plaintiff may sue in either the superior or the County Courts, at his option. Also in actions on contract for a sum under 20/., or in actions ex delicto for damages under 51., the superior courts have concurrent jurisdiction with the County Courts, in all cases where the plaintiff dw;ells more than twenty miles from the defendant, or where the cause^ of action did not arise wholly or in some material part within the jurisdiction of the County Court, within which the defendant dwells or carries on hjs^busiaess at the time of_the_acti2n fought, or where any officer of the County^Uourt shall be a party, except in respect of any claim to any goods or chattels taken in execution under the process of such court, or the proceeds of value thereof. And in these cases the plaintiff is entitled to costs if he recover : (Arch. New C. L. Pract. 7, 2nd edit., and ante, p. 82, 87.) Q. — In what cases may a plaintiff sue in the County Court ? A. — A plaintiff may sue in the County Court for any debt, damage, or demand, not exceeding the sum of 50/., not being for a maliciojjs prosecution, or for libel or slander, or for seduction, or breacbT^f promise~or'fDafriage : or if the' title to any"'hereaitaments, or any toll, fair, markS, or' franchise, is not in question."' Acd'T5y~lF& 14 Vict. c. 61, and the 19 & 20 "Vict. c. 108, jurisdiction is given to the County Courts in all the above cases, if the parties agree by memorandum in writing, signed by them, or their attorneys : (see sects. 23, 25.) And by sect. 24, where the amount claimed is reduced by an admitted set-off below 50/. the County Court has jurisdiction : (s. 24.) And by sect. 50, where neither the annual rent nor value of any corporeal hereditaments shall exceed 50/., upon which no fine or premium has been paid, and the Digitized by Microsoft® COMMON LAW. Ill interest of the tenant in such hereditament has expired, or been deter- mined by notice to quit, given either by the tenant or landlord, and the tenant, or any one claiming under him, refuses or neglects to give up possession, the landlord may proceed in the County Court to enforce the delivery up of possession: (sect. 50; see also sects. 51, 52, and 9 & 10 Vict. c. 95.) Q- — State the cases in which you are compelled to sue under the Small Debts County Court Acts ; and how, and where, the suit must be brought; and where must the parties be residing at the time? A. — Under the Small Debts County Court Acts, you must sue in the County Court in claims arising ex contractu, if the debt, &c., does not exceed 20/., and in claims arising ex delicto, if the damages do not exceed 51.; except in cases where the superior courts have a concurrent or exclusive jurisdiction, as to which see supra. If the plaintiff does not sue in those courts in the above cases, he is deprived of his costs, unless a judge's certificate is obtained giving them to him. The suit is brought by entering a plaint, whereupon a summons is issued and served upon the defendant by the proper officer of the court. The suit is brought in the County Court in the district within which the defendant resides, or by leave of the registrar of the court in the district court in which the defendant dwelt, or carried on his business, within six calendar months next before the time of the action brought, or in which the cause of action arose: (see 9 & 10 Vict. c. 95 ; 13 & 14 Vict. c. 61 ; 15 & 16 Vict. c. 54, s. 4 ; 19 & 20 Vict. c. 108.) Q. — Will any privilege protect a person from being sued in the County Court, and would the same privilege allow the party to sue in the superior courts for a debt that might be recovered in this court? A. — Under the 9 & 10 Vict. c. 95, s.,67, a question arose as to whether an attorney, as plaintiff or defendant, still retained his privilege of suing and being sued in the court, of which he is an attorney, for causes of action which would otherwise come within the jurisdiction of these courts. But it has since been enacted by the 12 & 13 Vict. c. 101, s. 18, that " no privilege shall be allowed to any attorney, solicitor, or other person," to exempt him from the provisions of the statute 8 & 9 Vict. c. 95. Q. — Can a party prosecute a plaint in a County Court, on a judgment recovered in one of the superior courts, for a debt less than 50/.? A. — A party might formerly have prosecuted a plaint in a County Court on a judgment recovered in one of the superior courts, for a debt less than 50Z. ( Winsor v. Darnford, 12 Q. B. Rep. 603); but this is now otherwise : (see 19 & 20 Vict. c. 108, s. 27.) Q. — Suppose a judge of a County Court should have exceeded his jurisdiction by trying a cause which he ought not to have tried, what steps can be taken against him ? A. — In such a case, a writ oi prohibition may be obtained from any of the superior courts at Westminster. The application may be made to a judge at chambers for a rule or order for the writ, either in term or vacation (13 & 14 Vict. c. 61, s. 22); and the matter is to be finally disposed of by such rule or order, and no declaration or further pro- ceedings in prohibition are allowed: (see 19 & 20 Vict. c. 108, s. 42.) Q. — Is there any appeal from the decision of the County Courts, and in what cases ? Digitized by Microsoft® 112 EXAMINATION QUESTIONS AND ANSWERS. ^.— Yes ; by the 13 & 14 Vict. c. 61, s. 14, either party in any cause to an amount exceeding 201., and not exceeding 501., if dissatisfied with the determination or direction of the court in point of law, or upon the admission or rejection of any evidence, may appeal to any of the superior courts of law at Westminster, two or more of the judges whereof shall sit out of term as a Court of Appeal. Within ten days after the deter- mination or decision, the party appealing must give notice thereof to the other party, and security must also be given. This power of appeal did not extend to cases where the jurisdiction had been given to the court by consent of the parties, but stat. 17 & 18 Vict. c. 16, now gives a power of appeal in such cases. But by the 19 & 20 Vict. c. 108, the parties may, before the decision is pronounced, agree in writing, signed by them or their attorneys or agents, that the decision of the judge shall be final; and this agreement does not require any stamp. HIGHWAYS. Question. — How are highways to be stopped up, diverted or turned?(a) Answer. — By the Highway Act (5 & 6 Will. 4, c. 50, amended by 4 & 5 Vict. cc. 51, 59, and 8 & 9 Vict. c. Yl), the inhabitants in vestry assembled may direct the surveyor to apply to two justices of the division to examine a highway, with a view to its being diverted or stopped up ; and if a certificate of the justices in favour of the proceeding is sent to the Quarter Sessions, the justices there assembled are to make the order accordingly. But, in case of a diversion, the proceedings must be by consent of the owner of the lands through which the new highway is to pass. And a party, thinking himself aggrieved, may appeal from the certificate of the justices to the Quarter Sessions, before the order of that court is made: (3 Steph. Com. 226, 227, 3rd edit.) ATTORNEY AND CLIENT. Question. — Where an attorney, who has given an undertaking to enter an appearance, has not appeared in pursuance of his undertaking, what will be the consequence? Answer. — The court will punish him by attachment : (Rule Gen. 3; Arch. New C. L. Pract. 699, 3rd edit.) (a) This question has also been asked several times in the Criminal Law division. Digitized by Microsoft® COMMON LAW. 113 Q. — When an attorney has carried on a cause up to a certain point, can he stay it unless his client furnishes him with money f A. — Yes; for although an attorney's undertaking to carry on a suit is an entire contract to carry it on to its termination, and can be deter- mined by the attorney only upon reasonable notice, yet an attorney who has undertaken a cause is not bound to proceed in it without adequate 'advances, from time to time, by the client, for expenses out of pocket: (Arch. New C. L. Pract. 696, 2nd edit. ; Chit. Arch. 75, &c., 9th edit.) Q. — Assuming an attorney, by negligence or unskilfulness, so to mis- manage his client's cause, that it is lost; has such client any remedy by action against such attorney; and, if so, in what form of action must he sue him ? A. — If the client has sustained damage from the gross negligence, or gross ignorance, of his attorney, he may maintain an action against his attorney for damages : (Arch. New C. L. Pract. 718, 2nd edit.) The form of action may be either case or assumpsit, as on breach of a contract: (Arch. N. P. 40.) Q. — Can a party change his attorney during an action; and if so, are there any concQtions imposed upon such party ? A. — No person can change his ■ attorney without a judge's order for that purpose, and a copy of the order, or a notice of it, must be served on the adverse party, or his attorney ; the order is made subject to the attorney's lien for costs: (Rule Gen. 4; Arch. New C. L. Pract. 697, 2nd edit. ; Chit. Arch. 76, 9th edit.) Q. — Has an attorney any lien upon a judgment, and, if so, of what nature ? A. — An attorney has a lien upon a judgment obtained by him for his client, and upon any money levied under an execution upon it for his costs in the suit in which the money is recovered ; and no set off can be allowed to prejudice this lien : (Arch. New C. L. Piract. 706, 2nd edit.; Chit. Arch. 1 15, 9th edit. ; Simpson v. Lamb, 28 L. T. Rep. 245.) Q. — Is there any, and what, difference between the lien of a country attorney and that of his town agent, as to costs due from a client ? A. — ^Tes; the country attorney has a lien upon all papers, &c., of his client in his hands, to the extent of the general balance due to him from the client for costs. An agent to a country attorney has no lien for his general balance upon any money of the client which comes into his hands ; but he has a particular lien to the extent of his agency charges in that particular suit : (see Arch. New C. L. Pract. 703, et seq. 2nd edit.; Chit. Arch. 115, 135, 9th edit.) Q. — An attorney, at Christmas, delivers bills to four clients ; one for borrowing" 1000/. on mortgage ; another for defending an action for a libel ; a third for filing a bill in equity, to compel the completion of a purchase; and a fourth for defending a client charged with an assault, at the session. Are any, and which, of these bills liable to be taxed ; and if the bills are delivered on the first of January and not paid, when can the attorney commence an action to recover them; and if the attorney had died, and the bills were delivered by his executor, would they be liable to be taxed ? Digitized by Microsoft® 114 EXAMINATIOM QUESTIONS AND ANSWERS. - -4.— The bills delivered to all the four clients are liable to be taxed. And it makes no difference if the bills were delivered by the attorney's executor, the attorney being dead. The attorney cannot commence an action to recover the amount of his bill until one (calendar) month has ■elapsed from the delivery of the bill; therefore an action cannot be brought until the first of February: (6 & 7 Vict. c. 73 ; Arch. New C. L. Pract. 317, 318, 701, 2nd edit; Gray on Costs, 525, et seq. ; and see Codwell v. Neal, 28 L. T. Rep. 173.) Digitized by Microsoft® II.— CONVEYANCING. TENURES AND NATURE OF ESTATES. Question. — State the ordinary tenure of land ? Answer. — Tenures were anciently of several kinds ; thus, we had tenures by knight's service, free socage, grand serjeanty, petty serjeanty, tenure by cornage, and villein tenures, and to these tenures were annexed many burdensome conditions and services, which, although greatly ame- liorated by several acts of Parliament, were not completely destroyed till the reign of Charles II., when an act (24 Car. 2, c. 12) was passed which turned all tenures into free and common socage, which is now termed free- hold, except the villein tenures, which are now called copyholds ; it also reserved the ancient tenure of grand serjeanty, without its burdens. The ordinary lay (a) tenures, therefore, are now freehold and copyhold (in which latter is included lands held in ancient demesne and customary freeholds), with the derivate tenure of leaseholds : (see 1 Steph. Com. tit. " Tenures ;" Will. Real Pro. ; Burton's Comp.) Q. — What is the custom of borough English ? A. — Tenure subject to the custom of borough English is socage tenure; but, according to custom, the estate descends to the youngest son in exclusion of all the other children. The custom does not in general extend to collateral relations: (see I Steph. Com. 198, &c. ; Will. Real Pro. 107, 4th edit.) Q, — ^To whom will land, hdd according to the custom of gavelkind, descend ; and in what part of England does this custom more especially prevail ? A. — The lands will descend not to the eldest son, but to all the sons in equal shares, and so to brothers and other collateral relations on failure of nearer heirs. The custom of gavelkind chiefly prevails in the county of Kent: (1 Steph. Com. 200 ; Will. Real Pro. 105, 4th edit.) Q. — What is a disclaimer and its consequences ? A. — No person can be compelled to take an estate by conveyance (a) The votd " lay" is hero nscd, for there is etill the ecclesiaslical tenure of frankalmoiga to be occasionally met with. Digitized b}/^crosoft® 1 16 EXAMINATIOH QUESTIONS AND ANSWEK3. against his will. Therefore, on his refusal to take the estate, the effect of the conveyance to him may be avoided by executing a deed of dis- claimer : (see 1 Steph. Com. 460, 3rd edit.) But aa heir^eitAaw^camaaL -J disclaim an estate which descends upon him, thoughlie may as soon as he pleases, of course, dispose of the property by an ordinary conveyance : (see Will. Eeal Pro. 75, 4th edit.) Q. — Explain the nature of the title by escheat and when it occurs ? A. — Escheat is the resulting back to the original grantor or lord of the fee of lands, of which a tenant dies seised in fee simple, without having aliened them in his lifetime or disposed of them by his last will, and leaves no heir to take them by descent. In order to complete the title by escheat, it is requisite that the lord entfer on the land escheated. Escheats are frequently divided into those propter defectum sanguinis, and those propter delictum tenentis, the former occurring when the tenant dies without heirs, the latter, when his blood is attainted : (see 1 Steph. Com. 401, 1st edit. ; 415, 416, 3rd edit. ; Will. Real Pro. 102, 103, 4th edit.) Q. — What are the requisites to produce a merger of an estate ? A. — ^It is a general principle of law that when a greater estate and a less coincide or meet in the same person, without any intermediate estate, the less is immediately sunk or merged in the greater. But they must come to one and the same person in the same right ; else if the greater estate be in his own right, and the less in right of another {en autre droit), there is no merger. But an estate tail wiU not merge into j an estate in fee simple, although they meet in the same person ; in this j case, therefore, there is an exception to the general rule : (1 Steph. Com. ' 304, 3rd edit. ; Will. Real Pro. 204, 234, 4th edit.) Q. — What are estates less than freehold ? A. — ^They are the following : — Estates for years ; estates at will ; estates at sufferance. Q. — What is the largest and what the smallest estate of freehold of which a man can be seised ? A. — An estate in fee simple is the largest, and an estate for life the smallest estate of freehold of which a man can be seised. Q. — What is an estate of freehold ? A. — It is an estate for life at least in lands of free tenure. It may be also an estate in fee simple or fee tail -. (see Holth. Law Diet. ; I Steph. Com. 197, &c. ; Co. Lit. 43 b ; Will. Real Pro. 22, 4th edit.) Q. — Mention the different senses in which the terms " estate" and " freehold" are used in connection with real property, and the meaning of each. A. — Mr. Preston defines the word estate to be "the interest which any one has in lands or in any other subject of property ;" and this is the meaning generally given to it by legal, writers. An estate in lands and tenements may be considered : — 1. In reference to the nature of the ownership i 2. In reference to the quantity of interest of which the estate is composed: (see further Preston on Estates; Holth. Law Diet. : 1 Steph. Com. 216.) The term freehold, when used in connection with real estate, denotes the tenure, and that the holder has a life estate at least : (see supra.) Digitized by Microsoft® CONVEYANCING. 1 1 7 Q. — State the rule in Shelley's case. A. — The rule inSheUey's case may be concisely stated to be, that when- ever an estate of freehold is given, and by the same conveyance or will an ulterior estate (whether mediately or immediately) is limited to the heirs of the same person in fee or in tail, such ulterior estate vests in that person himself in the same manner as if it had been expressly given to him and his heirs. The word " heirs" being a word of limitation, and not of purchase: (1 Steph. Com. 316, 2nd edit. ; 319, 3rd edit.; Burton's Comp. pi. 339 ; WiU. Eeal Pro. 21 1, 215, 4th edit.) Q. — If real property be limited to A. for life, remainder to B. for life, , remainder to the right heirs of^.the bod_Y of A., with remainder to the t- right heirs of B., what estates" 3o~A. and B. take respectively ? ^ A. — A. wiU take an estate tail, subject to B.'s life estate, and B. will take the remainder in fee, under the above rule : (see Steph. sup.. Burton sup., Will, sup.) Q. — Describe an estate of inheritance. A. — An estate of inheritance is where the tenant is not only entitled to enjoy the land for his own life, but where, after his death, it is cast by the law upon the persons who successively represent him in perpetuum in right of blood, according to an established order of descent. Estates of inheritance are either estates in fee simple or fee tail : (1 Steph. Com. 323, 325, 3rd edit. ; Will. Eeal Pro. 74, 5th edit.) Q. — What is the difference between an estate in fee simple and an estate in tail general ? A. — ^The difference between them is one of quality, not quantity : (see post, titi " Estates in Fee Simple.") An estate in fee simple is the largest estate or interest the law of England allows a man to possess in landed property, and on the death of the owner intestate descends to his heirs either lineal or collateral ; whilst a fee tail will only descend to the lineal ,' heirs. Again, there is a difference in the mode of their conveyance : (see hereon post; Steph. Com. vol. 1; WiU. Real Pro. 4th edit.; Burton's Comp.) Q. — ^What are the several kinds of estates with regard to the time of their enjoyment ? A. — ^They are — 1st. An estate in fee simple, which is the largest estate of which a man can be seised, being an estate of freehold and inheritance, descendable to heirs lineal and collateral, male or female. 2ndly. AnL-fiatatijJaii which is also an estate of freehold and inheritance, but in its descent it is restricted to coIlate i » l j>eir^-t>g», heirs of the body of the grantee^ and the descent may^' further restricted to the heirs male or female,' or the issue by a particular wife. 3rdly. Estates for life, in which are included curtesy and dower (which two arise by operation of law); tenancy in tail after possibility of issue extinct; and estates jowr autre vie. 4thly. Estates for years. Sthly. Estates from year to year, at will and sufferance : (see 1 Steph. Com. 221, &c. 3rd edit.; WiU. Real Pro. 4th edit.) Q. — ^What are the words of limitation properly used in a deed in creating each respective class of estate? A. — ^The proper mode of creating an estate in fee simple is by limiting the estate " to (the grantee), his heirs and assigns Jar ever." An estate tail is created by limiting it to the grantee, and the " heirs Digitized by Microsoft® 118 EXAMINATION QUESTIONS AND ANSWEES. of his body." This limitation would create an estate tail general. An estate tail special is where the limitation is to particular heirs. An estate for life is created either by an express limitation to the grantee " for and during his life," or the life of another, or simply to him without any further words of limitation, which in a deed gives him a life estate. '■^ An estate for years is created by a grant or demise to the grantee, his executors, administrators and assigns (these words of limitation, however, are not essential), to hold for the term of years. An estate at will is where lands, &c., are let by one to another to hold at the vsill of both parties. It may be constituted by agreement (either written or verbal). A tenancy from year to year may be created by the agreement of the parties (either written or verbal). The best way to create this tenancy is to let the lands to hold " from year to year." • An estate at sufferance is where one comes into possession of land by a lawful title, and after his estate is ended, wrongfully continues in possession : (see 1 Steph. Com. 221, et seq. 3rd edit.; Will. Real Pro. 4th edit.) Q. — How may an estate tail, an estate for life, and an estate for years be destroyed ? A. — An estate tail may be destroyed by barring the entail and turning it into a fee simple, or by forfeiture; an estate for life or years may be destroyed by forfeiture, surrender or merger : (see references sup.) ESTATES IN SEVEEALTY, JOINT TENANCY, TENANCY EST COMMON, AND COPARCENARY. Question. — What is an estate in severalty ? Answer. — An estate held by a man in his own right only, without any other person being joined or connected with him in point of interest during his estate therein: (1 Steph. Com. 323, 3rd edit.; Will. Real Pro. 81, 114, 4th edit.) Q. — What is a tenancy in common? A. — ^A tenancy in common is where two or more hold the same land, with interests accruing under different titles ; or accruing under the same title (other than descent), but at different periods; or conferred by words of limitation importing that the grantees are to take in distinct shares: (1 Steph. Com. 336, 3rd edit.; Will. Real Pro. 113, 4th edit.) Q. — Who are joint tenants? and why are joint tenants so called ? A. — Where an estate is acquired by two or more persons in the same land by the same title (not being a title by descent), and at the same period, and without any words importing that they are to take in distinct shares, they will take the estate as joint tenants : (1 Steph. Com. 324, 3rd edit.) Joint tenants are so distinguished, as they have a unity of Digitized by Microsoft® CONVEYANCING. H9 possession, a unity of interest, a unity of title, and a unity of time, in the commencement of their title: (Will. Real Pro. 109, 4th edit. ; Steph. sup.) ^ (j. — Do estates held in joint tenancy, tenancy in common, and copar- cenary, differ in any and what essential particulars ? -4.— Yes ; in the following :— Among joint tenants, and also among copai-ceners, there is a unity of title. In a tenancy in common this is not necessary; for one may hold by purchase, the other by descent. Joint tenants have also a unity of time. But as to tenants in common and coparceners this is not necessary : the estate of each may vest at a separate time. Among joint tenants, there is an entirety and equality of interest ; they do not hold in distinct shares, but each is entitled to the whole, they being seised per mi et per tout ; and there exists the jus accrescendi, or benefit of survivorship between them, lenants in common and coparceners are each seised of a distinct though undivided share; and there is no benefit of survivorship between either tenants in common or coparceners : (1 Steph. Com. 325, et sea. 3rd edit.; Will. Real Pro. 81, 109, 113, 4th edit.; Burt. Comp. pi. 12, 13, 131.) Q. — When two persons, not being partners, purchase an estate out of their own money, in equal shares, and take a conveyance of the estate simply to themselves in fee, what is the effect of this conveyance at law and in equity? and what difference would it have made if the purchase money had been contributed in unequal shares? -^- — If two persons purchase an estate and advance the money in equal proportions, and take a conveyance of the estate simply to them- selves, they will hold the estate as vjoint tenants, both at law and in equity. But if they advanced the money in unequal shares, in case of the death of either of them, there will be no survivorship, but they will be deemed to be purchasers in the nature of partners, and to have intended to hold the estate in proportion to the sum which each advanced: (Story Eq. Jur. § 1206; Steph. Com. 312; Will. Eeal Pro. Ill, 4th edit.) Q. — A., B. and C. are brothers, A. being the eldest; B. and C. become joint tenants of land in fee simple ; B., without C.'s knowledge, conveys his undivided moiety in fee to D. by way of mortgage — B. then dies : does G. on B.'s death take the entirety, or does a moiety (subject to the mortgage) descend on A. as B.'s heir-at-law ? A. — If B. conveys his undivided moiety to D. by way of mortgage, the mortgage, being an absolute conveyance, will sever the joint tenancy, and C. and D. will hold as tenants in common, and on B.'s death his share will descend to A., his heir, subject, of course, to the mortgage. Q. — How is an estate in coparcenary created, and what persons are usually coparceners? A. — An estate in- coparcenary always arises by descent. Females are usually coparceners : (1 Steph. Com. 331, 332, 3rd edit. ; Will. Real Pro. 81, 4th edit.) Q. — Of what two sorts are coparceners? Why are they called coparceners? . -(^s^^jEo^arcenary arises either by common law or particular custom. By common la.w, as where a person. seised in fee simple or fee tail dies, and his next heirs are two or more-females, his daughters, sisters, aunts, cousins or their representatives^n this case they shall all inherit; -and Digitized by Micrqsoft® 120 EXAMINATION QUESTIONS AND ANSWERS. these co-heirs are then called coparceners, or for brevity parceners only. Coparceners by particular custom are where lands descend, as in gavel- kind, to all the males in equal degrees, as sons, brothers, uncles, &c. : (1 Steph. Com. 331, 3rd edit.) According to Littleton, parceners are so called because they always could be compelled to make partition: (sect. 241, Will. Real Pro. 81, 4th edit.) But so now can joint tenants and tenants in common: (see Steph. sup., Will, sup.) Q. — Can one tenant in common of a single house or a single field separate his interest from that of the other tenant in common, and how in each case ? A. — ^A tenant in common may have a decree for partition, although there be but one house or one field. But the court will frequently decree a pecuniary compensation to one, in order to make up his share to its proper value, where the estate cannot conveniently be divided into equal parts: (Story Eq. Jur. §§ 654, 657; Smith's Man. Eq. 612, 4th edit.) Q. — How may a joint tenancy, or a tenancy in common, be severed? A. — A joint tenancy may be severed: — 1st. By partition. Thus, if two joint tenants agree to part their lands and hold them in severalty, they are no longer joint tenants, for they no longer hold promiscuously. 2ndly. The jointure may be destroyed by alienation without partition. As if one joint tenant conveys his estate to a third person, so if one joint tenant releases his share to the other, the jointure is dissolved, and turned into an estate in severalty. But a devise of one's share by will is no severance of the jointure. 3rdly. The jointure may also be severed by an accession of interest. Thus, if there be two joint tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure. A tenancy in common may be dissolved : — 1st. By partition. 2ndly. By uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one severalty : (1 Steph. Com. 329, 330, 339, 3rd edit.; Will. Real Pro. 113, 114, 5th edit.) ESTATES IN REMAINDER, REVERSION, &c. Question. — What is an estate in remainder? and what are the difierent kinds ? Answer. — A remainder is an estate limited to take effect and bei enjoyed after a prior estate is determined, both estates being created at the same time: (see 1 Steph. Com. 295; Will. Real Pro. 197, 4th edit.) Coke described a remainder as " the remnant of an estate in lands or tene- ments expectant upon a particular estate, created together with the same at one time:" (Co. Lit. 143, a.) Remainders are of two sorts, vested and contingent : (1 Steph. Com. 311, 3rd edit.) -Q. — What is an estate ip reversion? Digitized by Microsoft® CONVEYANCING. 1 2 1 A. — An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him: (2 Bl. Com. 175; and see Co. Litt. 22, b; Steph. Com. sup.; Will. Real Pro. 198, 4th edit.) Q. — What is a vested remainder ? A. — It is a present existing estate, always ready, so long as it lasts, to come into possession the moment the prior estate determines. As, if A. be tenant for twenty years, remainder to B. in fee; here B.'s is a vested remainder: (1 Steph. Com. 311, 3rd edit.; Will. Real Pro. 206, 207, 4th edit.) Q. — What are cross-remainders ? Can they be implied in a deed or will? A. — When lands are given to two or more as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them. As, if a man gives lands to his two children as tenants in common in tail, and directs that on failure of the issue of one of them his share shall go over to the other in tail, and vice versa. Such ulterior estates as these are called cross-remainders, because each of the grantees has reciprocally a remainder in the share of the other. In a deed they can be given only by express limitation, and can never be implied ; though it is otherwise with respect to wills, where they may be raised not only by actual limi- tation, but also by implication : (I Steph. Com. 338, 339, 3rd edit.; 1 Hughes Pract. Sales Real Pro. 355 to 357, 2nd edit.) Q. — What is a contingent remainder ? Show the technical creation of one? A. — Contingent remainders are those limited either to an uncertain person, or upon an uncertain event. As a limitation to A. for life, remainder to the first son of B., who has then no son born; here is a contingent remainder, for it is not certain that B. will ever have a son: (see 1 Steph. Com. 311, 312, 3rd edit.; Will. Real Pro. 217, e< seq. 4th edit.; Burt. Comp. PI. 31.) Q.^Will a chattel interest support a remainder? A. — A chattel interest will support a vested remainder, as if a person seised in fee grants lands to A. for twenty years, and, after the deter- mination of the said term, to B. and his heirs for ever ; here A. is tenant for years (a chattel interest), and B.'s is a vested remainder: (1 Steph. Com. 306 to 31 1, 3rd edit.) But a contingent remainder, if it amounts ]/• to a freehold, cannot be limited after an estate for years, or any other particular estate less than a freehold; (1 Steph. Com. 314, 3rd edit.; Will. Real Pro. 224, 4th edit.) Q. — ^In limitations in strict settlement, was the estate limited to trustees to preserve contingent remainders vested or contingent ? State the reason for your answer. A. — The estates given to trustees to preserve contingent remainders were vested. This was necessary in order to preserve the contingent remainders, for, as before seen, a contingent remainder requires a free- hold to support it; therefore, if the particular estate had been prema- turely determined by forfeiture, surrender or merger, the contingent remainder would have been destroyed. The vested estate given to trustees, to take effect on the PWBi^ffi^ ^^^f^^^(^^ ^^^ particular estate, 122 EXAMINATION QUESTIONS AND ANSWERS. was the means of preventing this: (see Will. Eeal Pro. 233, et seq., 4th edit.; 1 Steph. Com. 306, 1st edit.; 317, 3rd edit.) Q. — A. on his marriage limited a freehold estate to the use of himself for life, with remainder to the use of his first and other sons successively in tail, with remainder to the use of B. in fee. Are either and which of the above remainders vested or contingent? A. — ^The limitation of the remainder to the use of B. is a vested re- mainder. But the limitation of the remainder to the use of the sons of A. is a contingent remainder, for the reasons above stated : (WilL Real Pro. 237, 4th edit.) Q. — Why were limitations to trustees to preserve contingent re- mainders formerly necessary, and why are they no longer required? A. — Limitations to trustees to preserve contingent remainders were formerly necessary, because, if the particular estate had been prematurely determined by the voluntary act of the tenant for life, the contingent remainder would have been destroyed. Therefore, a vested estate in remainder was given to trustees to take effect in possession on the determination of the estate of the tenant for life otherwise than by his death, and to continue for the residue of his natural life, and thus pre- serve the contingent remainder. , But by the 8 & 9 Vict. c. 106, s. 8, a contingent remainder^ existing at any time after the 31st day of Decem- ber, 1844, shall be, and if created before the passing of that act shall be deemed to have been, capable of taking eifect, notwithstanding the determination by forfeiture, surrender or merger, of any preceding estate ■ of freehold in the same manner in all respects as if such determination had not happened: (see 1 Steph. Com. 317, 319, 3rd edit.; Will. Keal Pro, sup.) Q. — ^Explain the phrase " particular estate." A. — A limited legal interest or property in lands or tenements, as distinguished from the absolute property or fee simple therein, is usually so termed; and he who holds or enjoys such a limited interest therein is then sometimes Called the particular tenant. Thus, if A. has the abso- lute property or fee simple in certain lands, and he demises them to B. for a term of years or for life, the legal interest which B. would thus acquire therein would be called the particular estate with reference to A.'s estate in fee simple; i. e. it would be a particle or portion carved out of A.'8 fee: (Holth. Law Die. 2nd edit.; Will Real Pro. 196, 4th edit.; Steph. Com. 290.) Q. — Of what sorts are estates in expectancy ? A. — There are at common law two sorts, viz., estates in remainder and estates in reversion: (1 Steph. Com. 299, 3rd edit.) Digitized by Microsoft® CONVEYANCING. 123 ECTATES FOR LIFE AND YEAES. Question. — What are estates for life ? Answer. — ^Estates for life are freeholds not of inheritance: (Burton's Comp. pi. 723 ; WiU. Real Pro. 22, 4th edit.; 1 Steph. Com. 239.) Q. — State the general tenures of estates for life, and what denomina- tion of property are they ? A. — A tenant for life only holds the lands during his life; and though he may part with his estate, if he pleases, it will terminate at his death, into whosesoever hands it may have come. Every tenant for life has a freehold ; and are real freeholds pnoperty : (see Will. Real. Pro. 18, 22, 4th edit.; Burton, sup.; Steph. sup.) Q. — What by common speech is he called, who holds for the term of ■ his own life? and what he who holds for the term of another's life? A. — When he holds for his own life, he is called tenant for life; when he holds for the life of another he is styled tenant pur **^ ^*^^ ' ^'. Q. — State the principal provisions of the Statute of Uses, and the causes which led to its enactment. A. — The Statute of Uses (27 Hen. 8, c. 10) enacts that where any person shall be seised of lands, &c., to^ the use, confidence, or trust ofanj other person, such latter person (the cestui que use) shall from thence- forth stanTand be seised, &c., of the land of and in the like estate as he y has in the use, &c., and that the estate of the person so seised to uses shall be deemed to be in the cestui que use in such quality, manner, form and condition as he had before in the use. The causes which led to its enactment were to prevent the evils arising from uses, and its object to annihilate them altogether ; but, so far from attaining this end, it became the means of introducing a new mode of conveyance admirably adapted to the exigencies of mankind : (Will. Eeal Pro. 131, 133, 4th edit, ; Steph. Com. 338.) Q. — What is a shifting use ? A. — ^It is future or executory interest created under the Statute of Uses. A common instance of a shifting use occurs in ordinary marriage settlements of lands ; ex. gr., suppose A. to be the settlor, the lands are conveyed by him, by the settlement executed a day or two before the marriage, to trustees " to the use of A. and his heirs until the intended marriage shall be solemnized, and from and immediately after the solemnization thereof," to the uses agreed on : (Will. Real Pro. 241 to 243, 4th edit.; 1 Steph. Com. 503; 1 Hughes Pract. Sales Eeal Pro. 286, 287, 2nd edit.) Q. — What is the difference between an executory devise and a shifting use? A. — ^An executory devise is a conditional limitation by will; a shifting use is the same by deed operating under the Statute of Uses : (see references sup.) Digitized by^^icmsoft® 132 EXAMINATION QUESTIONS AND ANSWERS. LEGAL AND EQUITABLE ESTATES, POWERS, &c. Question. — What is a legal, and what an equitable estate ? Answer. — Legal estates are those limitations of interests in realty which give a party a right at law to the ownership and profits; an equitable estate is such an interest as is not, for most purposes, noticed at law, but in equity, is in fact the beneficial ownership of the land and its profits as distinguished from the mere legal seisin : (1 Steph. Com. 222, 3rd edit. ; Will. Real Pro. 135, 4th edit.) Q. — Settlement of fee simple estates to the use of A. for life, remainder to the use of B. and his heirs, in trust for C. and his heirs. Do B. and C. respectively take legal or equitable estates t and to whom must A. surrender his life estate, in order to cause its merger ? -4. — B. takes the legal estate in remainder, and C. will have only the equitable estate ; A. must therefore surrender to B. in order to cause a merger. Q. — A feoffment to A. and his heirs to the use of B. and bis heirs ; what estates, legal and equitable, do A. and B. take respectively? and explain the operation of the Statute of Uses in the above limitation. A. — On a feoffment as above B. will take both the legal and equitable estate. For the Statute of Uses transfers the estate to the cestui que use in the same manner as if the feoffees to uses, after tlie conveyance to them, had actually conveyed their estate to each respective cestui que use, thus passing to them a legal instead of an equitable interest ; such uses, in fact, taking effect out of the seisin of the feoffees immediately, on the execution of the conveyance, they being considered a mere con- duit pipe to the cestui que use uses : (see Will. Real Pro. 131, et seq. ; 1 Steph. Com. 339.) Q. — A. by bargain and sale conveys a fee simple estate to B. and bis heirs, to the use of C. and his heirs. What estates, legal or equitable, do B. and C. respectively take ? A. — The legal estate is vested in B. and his heirs, and C. and his heirs take but an equitable interest ; for by the effect of the bargain and sale the alienee has but a use, which is executed by the Statute of Uses (27 Hen. 8, c. 10), and as a use cannot be limited on a use, it follows, that any further use, limited by the conveyance, will not be executed, but remain a mere equitable interest: (see Burton's Comp. pi. 151 ; 1 Steph. Com. 341, 492; Will. Real Pro. 149, 4th edit., where it is fully explained.) Q- — Feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs. Explain the operation of the Statute of Uses in the above limitation ? A. — The statute executes the use in B. and his heirs, and gives him the legal estate ; and as a use cannot be limited on a use, C. has merely an equitable interest: (see Will. Real Pro. 134, 4th edit. ; 1 Hughes Pract. Sales Real Pro. 291, 292^ 2nd edit. ; 1 Steph. Com. 339.) Q- — A., under a power, appoints a fee-simple estate to B. and his heirs, to the use of C. and his heirs. What estates, legal and equitable, do B. and C. respectively; take,?, .,. „^ ^ Digitized by Microsoft® OONVETANCING. 133 ' A. — Powers do not operate as a conveyance of the possession of the estate, but like a bargain and sale, as a limitation of a use ; if, therefore, A. appoints to B. and his heirs, to the use of C. and his heirs, B. will take the legal estate, and the use to C. will be a use upon a use, which, as already seen, is not executed or turned into a legal estate by the Statute of Uses ; C. will, therefore, take the equitable estate : (Will. Eeal Pro. 246, 247, 4th edit. ; 1 Steph. Com. 506, 507.) Q- — A fee-simple estate is conveyed to such uses as A. shall appoint ; A., in execution of his power, appoints to B. and his heirs, .to the use of C. and his heirs,^ in trust for D. and ' his heirs. In whom is the legal estate ? A. — In this case B. takes the legal estate, but he holds it in trust, not for C. (who takes nothing), but for D. and his heirs : (Co. Litt. 271 b, note ; 1 Steph. Com. ubisup. ; Will. Real Pro. ubi sup.) Q. — If A. (seised to uses to bar dower) appoints the fee to B.' to the use of C, D., and E., would'the estates of C, D., and E. be legal or equitable ? A. — ^The estates of C, D., and E. would be equitable for the reasons before stated : (see Will. Real Pro. 246, 247, 4th edit. ; 1 Steph. Com. 507.) Q. — Devise since the Wills Act to A. and his heirs, in trust to apply the rents for specified purposes for a limited time, and then in trust for B. and his heirs. In whom is the legal estate ? A. — The legal estate wiU remain in A. in order to enable him to per- form his trust ; but as soon as the purposes for which the trust was raised are satisfied, the legal estate will be shiftefl to B. and his heirs : (see 1 Steph. Com. 354, note, 3rd edit.) Q. — Lands stand limited to such uses as A. shall by deed appoint, and in default of appointment to the use of A. in fee ; A., in pursuance of his power, appoints, and by way of further assurance conveys to B. and C. and their heirs to uses. Are the uses executed by the Statute of Uses, or do they take effect in equity only ? A.—-li the power is valid and subsisting at the time of the appoint- ment the subsequent conveyance is, of course, inoperative, and the uses will take effect in equity only ; but if the power should by any means have been suspended or extinguished, then the conveyance takes effect, and the uses are turned into possession : (see Will. Real Pro. 251, 252, 4th edit.) Q. — A., by bargain and sale duly enrolled, conveys to B. and his heirs, to the use of C. and his heirs, in trust for D. and his heirs. What estates or interests do B., C, and D. respectively take ? A. — B. will take the legal estate, and he will hold in trust, not for C. (who takes nothing), but for D. and his heirs : (see Co. Litt. 27 1 b, note ; Will. Eeal Pro. 149, &c., 4th edit.; 1 Steph. Com. 492.) Q. — Where an estate is devised to A. and his heirs in trust to permit B. and his heirs to receive the rents and profits, what estate does B. take ? A. — The statute will execute the use in B. and give him the legal estate : (see 1 Hughes Pract. Sales Real Pro. 292, 2nd edit.) Digitized by Microsoft® 134 EXAMINATION QUESTIONS AND AN8WEKS. Q.— Conveyance unto and to the use of A., B., and C, and their heirs. What estates do they respectively take ? A. — A., B., and C. will take the legal and equitable fee as joint tenants : (Will. Keal Pro. 132, 133, 4th edit. ; 1 Steph. Com. 339, &c.) Q. — Suppose a feoffment made to T. S. and his heirs, to the use of _A. for life, with remainder to the use of his first son (unborn) in tail, with remainded to the use of B. in fee ; does any and what estate remain to T. S. until the birth of a son to A. ? A. — T. S. is said by some person i to retain a seisin to serve the use to the unborn son of A., whilst, aci lording to others, all the uses are at once executed, but subject to be divssted to let in the son of A. and his ri ■jssue, when bom. The question involves the doctrine of scmiilla juris, ^^nd on which see Fearne's Contii gent Remainders ; Burton's Comp. pi. 162, note ; Cruise on Uses, 164, 3f seq. ; I Steph. Com. 340, n. *2'**<2. — Suppose T. S. makes a feoffment to the use of A. for li fe^with remainder__to the use_pf tjie^iei rs of h is (T. S.'sLbodx.; does any and what estate exist in TTS.j; and distinguish between the ^bove case and that of a feoffment by T. S. to the use of A. for the life of him (T. S.) with remainder to the use of the heirs of his (T. S.'s) body. - A. — In the first instance, there is a resulting use to T. S., which, coalescing with the limitation to the heirs of his body, gives him an estate tail, besides his reversion in fee: (Burton's Comp. pi. 342, 343.) In the second case, where the feoffment is made to the use of A. for the life of T. S., with remainder to the heirs of the body of T. S., there is no resulting use, but only a reversion in the feoffor ; for there can be no resulting use where the use is declared to another person for the life of the feoffor : {id. pi. 344.) Q. — A. contracts to hold ' Blackacre to the use of B. to the use of C. What is the effect of such a limitation, and what are the respefctive' interests of B. and C. resulting therefrom ? A. — If A. merely contracts to hold Blackacre to the use of B:, to the use of C, A. will retain the legal estate ; B. therefore will take nothing under the contract, and C. will have an equitable interest. For the mere contract of A. does not divest him of the legal estate, but an abso- lute conveyance is required for that purpose ; unless, indeed, this con- tract amounts to a covenant to stand seised, in which case B. will take the legal and C. the equitable estate ; (1 Steph. Com. 333, 491 ; Will. Eeal Pro. 165, 4th edit.) Q. — What is a pojver appendant? A. — A power appendant is where the use or estate to be created by the power takes effect in possession during the continuance of an ' estate which the donee hath in possession or remainder, and therefore wholly or partially overreaches it ; as in the instance of the power usually reserved in settlements to tenants for life to make leases : (2 Hughes Pract. Sales Eeal Pro. 75, 76, 2nd edit.) Q. — What are powers in gross ? A. — Powers in gross are where the person in whom they are vested has an estate in the lands, but the estate to be created under the power is not to take effect until such estate is determined ; such is the power of jointuring commonly inserted in marriage settlements : (2 Hughes Pract. Sales Eeal Pro. uhi supra.) Digitized by Microsoft® CONVEYANCING. 135 PROPERTY REAL AND PERSONAL. Question. — Define the several kinds of property according to the English law ? Answer. — Property is divided by Blackstone into two kinds ; things real and things personal; which is now designated as real and per- sonal property. Q. — ^What is the difierence between real and personal property ? A. — Meal property consists of such objects as are fixed, permanent and immoveable, which cannot be carried out of their place, as lands and tenements. Personal property consists of goods, money, and all other moveables, which may attend the owner's person wherever he thinks proper to go : (2 Bla. Com. 16 ; 1 Steph. Com. 156 ; 1 Will. Real Pro. 6, 7, 4th edit.) Q. — What do corporeal hereditaments consist of ? A. — They consist wholly of substantial and permanent objects ; all which may be comprehended under the general denomination of land only : (see Will. Real Pro. 13, 14, 4th edit. ; 1 Steph. Com. 159.) Q. — What are incorporeal hereditaments ; and state the several sorts ? A. — An incorporeal hereditament is a right issuing out of a thing corporeal (whether real or personal), or concerning or annexed to, or exercisable with the same, as a rent issuing out of lands or houses, or the like. Advowsons, commons, ways, offices, franchises, pensions, annuities and rents are all incorporeal hereditaments : (I Steph. Com. 159 ; Will. Real Pro. 10, 195, &c., 4th edit.) Q. — How are corporeal and incorporeal hereditaments respectively conveyed ? A. — Corporeal hereditaments were anciently conveyed by feoffment with livery of seisin ; but incorporeal property, if it was required to be transferred as a separate subject of property, was always conveyed, in ancient times, by writing, that is, by deed, for formerly all legal writings were in fact deeds. Property of an incorporeal kind was said to lie in grant, whilst corporeal property was said to lie in livery. But the act to amend the law of real property (8 & 9 Vict. c. 106) now provides that all corporeal tenements and hereditaments shall, as regards the convey- ance of the immediate freehold thereof, be deemed to lie in grant as well as in livery : (s. 2.) There is, accordingly, now no practical difference in this respect between the two classes of property : (see Will. Real Pro. 195, 196, 4th edit. ; 1 Steph. Com. ch. 17.) Q. — ^What are chattels personal ? A. — Chattels personal are, strictly speaking, things moveable, which may be attendant on the owner's person wherever he thinks proper to go. Such are animals, household stuff, money, jewels, corn, garments, and everything else that can properly be put in motion and transferred from place to place : (2 Bla. Com. 387 ; 1 Steph. Cotn. 263 ; Will. Real Pro. 6, 4th edit.) Q. — AVhat is a chattel real ? Digitized by Microsoft® 136 EXAMINATION QUESTIONS AND ANSWERS. ^.—Chattels real are such as savour of the realty, as terms for years of land, or incorporeal hereditaments, the next presentation to a church, estates by elegit, or the like. They are called real chattels, as being interests issuing out of, or annexed to, real estates, of which they have one quality, viz., immobility, which denominates them real ; but want the other, viz., a sufficient legal indeterminate duration ; and this want it is that constitutes them chattels: (2 Bla. Com. 316 ; 1 Steph. Com. 262, &c. ; Will. Keal Pro. 8, 9, 4th edit.) Q. — When is real estate considered as personal, and personal as real ? A. — Real estate articled, conveyed, or devised to be sold and turned into money, is reputed as money ; and money articled or bequeathed to be invested in real estate is considered as real estate, and descendible and divisible as such : (Story's Eq. Jur. § 790 ; Smith's Man. Eq. Jur. 186, 3rd edit.) ^ Q.— State concisely the meaning of the terms intercommon, and com - mon of estovers. A, — Intercommon is where the commons of two adjacent manors join, "and the inhabitants of both have immemorially fed their cattle promis- cuously on each other's common. Common of estovers is a liberty of taking necessary wood for the use or furniture of a hopse or farm from off another person's estate, and may be claimed by grant or prescription : (1 Steph. Com?; Holth Law Diet. 2nd edit.) iry ^ a€r^ /,.,-iid^ -^ C Q. — What is a rent-seek ? r A. — A rent-seek {redditus siccus), a dry or barren rent, so called because no distress could formerly be made for it. But now the statute 4 Geo. 2, c. 28, s. 5, gives a remedy by distress for rent-seek, in the' same manner as rent reserved upon lease: (Will. Real Pro. 270, 4th edit. ; 2 Steph. Com. 26.) Q. — ^What.is the extreme period for which a person can bring an action to recover land or rent ? - A. — By the stat. 3 & 4 Will. 4, c. 27, no person can make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims ; or, if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress or bring such action first accrued to the person making or bringing the same : (sect. 2.) If at the time the right accrues the person entitled to make an entry, &c., is under the disabilities of infancy, coverture, idiocy, lunacy, unsoundness of mind, or absence beyond seas, then he, or the person claiming through him, has ten years after the disability has ceased to do so : (sect. 16.) But no entry, distress or action can be made or brought after forty years next after the time at which such right first accrued : (sect. 17.) And only six years' arrears of rent can be recovered after it becomes due, or next after an acknowledgmentof the same in writing has been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent (see Sug. Real Pro. Stats. 16, 71, 133) under this act ; but by the 3 & 4 Vict, c 42, where the rent is .secured by an instrument under seal, twenty years' arrears can be recovered : (see Brown's Real Pro. Stats. 61, 62.) Digitized by Microsoft® CONVEYANCING. 137 Q. — If real estate be purchased out of partnership funds, is it treated as real or personal estate in any and what respects ? A. — Real estate bought and held for the purposes of the partnership, as a part of the stock in trade, will be considered in equity, although not | ^t_law, as personal estate to all intents and purposes, whatever may be the form of the conveyance, so as to be subject to all the equitable rights and liabilities of the partners and their creditors ; and so as to pass to the personal representatives and distributees on the death of a partner, except, perhaps, where there is a clear and determinate expression of the deceased partner that it shall go to his heir-at-law beneficially : (see Story's Eq. Jur. § 674, 1207 ; Smith's Man. Eq. Jur. 20, 147, 3rd edit.) Q. — What is a chose in action, and to what description of property is it applied ? A. — A chose in action is a phrase which is sometimes used to signify a right of bringing an action, and at others the thing itself which forms the subject-matter of the right, or with regard to which that right is exercised ; but it more properly includes the idea of the thing itself, and the right of action as annexed to it. The description is applied to debts, as money due on bond : for a property in the debt vests at the time of forfeiture mentioned in the obligation, but there is no possession till recovered by course of law ; so, in the case of a breach of covenant ^r contract, the recompense for the damage is a chose in action : (see Holth. Law Diet. 2nd edit. ; 2 Steph. Com. 11, 2nd edit.) Q. — Can a chose in action be legally assigned, or by what mode is the transfer of such property effected ? A. — A chose in action cannot (with the exception of bills of exchange and other negotiable instruments) be assigned at law ; but such assign- ments are recognised in equity. The form of assigning a chose in action is in the nature of a declaration of trust,. and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. Therefore, when a debt or bond is said to be assigned over, it must still be sued for in the original creditor's name, the person to whom it is transferred being rather an attorney than an assignee. But the assignee cannot sue for it in equity, unless the assignor refuses to allow the assignee to sue for it at law in his name, or has done, or intends doing, some act to prevent the assignee from recovering at law in the assignor's name : (2 Steph. Com. 39, 2nd edjt. ; Story's Eq. Jur. § 1040, 1057 a ; Smith's Man. Eq. Jur. 4th edit.) Q. — What is a rent-charge, and how created ? A. — A rent-charge arises on a grant by one person to another of an annual sum of money payable out of certain lands, in which the grantor may have any estate. For this purpose a deed is absolutely necessary ; for a rent-charge, being a separate incorporeal hereditament, cannot, according to the general rule, be created or transferred in any other way, unless indeed it be given by will: (Will. Real Pro. 270, 271, 4th edit. ; see also 1 Steph. Com. 251.) Q. — If certain lands be conveyed to a purchaser, and no notice be taken in the conveyance of any buildings upon, or mines or minerals under the land, would such mines and minerals pass to the purchaser ? State any legal maxim applicable to that question. A. — If lands are conveyed to a purchaser, and no notice taken in the conveyance of the buil(iines.uEOT«^or .the mines^nd minerals under, they 138 EXAMINATION QDEST10N8 AND ANSWERS. will pass to the purchaser ; for the ownership of land carries with it everything above and below the surface, the maxim being cujiis est solum, ejus est usque ad ccelum: (Will. Eeal Pro. 14, 4th edit.; 1 Steph. Com. 158.) Q Suppose A. grants a piece or pool of water to B., what is the extent of B.'s estate therein ? A. — On the grant of a certain piece of water the right of fishing passes, but not the soil : (1 Steph. Com. 162, 3rd edit.) But the word " pool " includes not only the water but the land on which it stands : (Co. Litt. 5 b.) Q.— Should the direction to sell an estate be absolute or discretionary in order to constitute an equitable conversion of freehold into per- sonalty ? A. — The direction to sell must be absolute in order to constitute an equitable conversion of freehold into personalty : (6 Jur. 658, 775.) Q. — State the principal distinctions in the mode of the devolution of real and personal estate on the death of the owner intestate ? A. — Eeal estate, on the death of the owner intestate, devolves on his heir-at-law, but personal estate is distributed among the next-of-kin, according to the Statute of Distributions. TITHES AND ADVOWSONS. Question. — Of what do great and small tithes consist ; and what is a modus, and what a tithe rent-charge ? Answer. — Great tithes consist in general of corn, peas, beans, hay and wood ; small tithes consist of all other predial, together with personal and mixed tithes. Tithes are great or small, according to the nature of the things which yield the tithe, without reference to the quantity. Thus, clover grass made into hay is of the nature of all other grasses made into hay, and consequently is a great tithe ; but, if left for seed, its nature becomes altered, and like other seed it becomes a small tithe : (Holth. Law Diet. 2nd edit. ; 3 Steph. Com. 78, 3rd edit.) A modus is a composition for tithes, which has existed from time immemorial ; that is, when, by custom or prescription, a particular mode of tithing has subsisted different from that authorized by the general law : (Holth. Law Diet. ; 3 Steph. Com. 80, 3rd edit.) A tithe rent-charge is a payment in lieu of tithes on the land being discharged from the same under the Tithe Commutation Act: (Steph. ubi sup.) Q. — ^Is a rent-charge payable to the rector or vicar under the Tithe Commutation Act fixed, or does it vary ; and if it varies, how is the amount to be ascertained ? A. — A rent-charge payable to the rector or vicar under the Tithe Commutation Act varies with the price of corn : (Will. Real Pro. 285, 4th edit.) The &mo'0^jikff§fi^affl^o^f^ government average of CONVEYANCING. 139 wheat, &c., as published in the London Gazette, for the last seven years : (see 6 ~iiyii^/u\i^y A. — The property mustbe surrendered to the lord,, who regrants them to the alienee, who is /jw ^oquohtly^ dmitted : (see Will. Real Pro. 280, 4th edit. ; 1 Steph Com. vol. 1 ; Prideaux's Conv. 88, 2nd edit.) Q. — By what assurance or assurances does a copyholder pass his estate to a purchaser or mortgagee, and is there any and what difference in the form of assurance to a purchaser or mortgagee ? A. — A copyholder passes his estate to a purchaser by surrendering it to the lord^who regrants it to the purchaser, and his title is la^teiwaxdsj Completed by his admittance as tenant to the lord. A mortgage of copyholds is effected by surrender, in the same manner, from the mort- gagor to the use of the mortgagee and his heirs, subject to a condition, 'That on payment by the mortgagor to the mortgagee of the money lent, together with interest, on a given day, the surrender shall be void. The mortgagee is, however, seldom admitted, unless he should wish to enforce his security: (see Will. Real Pro. 4th edit.; Steph. Com. vol. 1.) Q. — Suppose a purchased estate to be copyhold, at whose expense is the surrender to, and also the admission of, the purchaser ? A. — In the absence of any express stipulation, the purchaser is liable to the payment of the expense of the surrender and of his own admit- tance, and the fine payable thereupon : (see Sug. Vend. & Pur. Concise View, 420.) Q. — ^If the vendor contract to surrender and assure a copyhold estate at his own expense, is he bound to pay the lord's fine ? A. — No ; the title is perfected by the admittance, and the fine is not payable till afterwards : (see Sug. ubi sup.) Q. — A., being a surrenderee of copyhold estate, but not admitted, assigns his interest to B. Is the lord compellable to admit B. on payment of a single fine ? and how would the case stand if instead of a surrender to A. there had only been a. covenant to surrender? Digitizeaby Microson® CONVEYANCING. 143 A. — A surrenderee of copyhold estate, although not admitted, has such an equitable interest as is capable of assignment, and the lord may j be compelled to admit accordingly : (see Garland v. Aston, 31 L. T. Rep. 237; Doe v. Tqfield, 11 East, 246, 251; Steph. Com. vol. 1; 2 Hughes Pract. Sales, 21, 2nd edit.) As to whether a double or single fine will be payable will depend upon circumstances. If the surrender has been < courted, then A. must be admitted and complete his title, before he can / pass a complete title to B., and in such case a double fine would be due. But if the surrender has never been courted, it may be wholly disre- garded, and A.'s vendor may surrender anew to B., who may get ad- mitted ; and as fines are only due on admission, the lord will be entitled to but one fine : (see hereon Co. Cop. s. 56 ; Burton's Comp. pi. 1263, et seq. ; Hughes Pract. Sales, 29, 2nd edit.) If there had only been a covenant to surrender to A., and he assigns thatjatergst^to B., B. may call upony' A.'s vendor to surrender to him, and of course only one fine is due, as there is only one admittance : (see Steph. Com. vol. 1.) ' Q. — Is there any mode by which a testator seised of copyhold estate, and intending that they should be sold after his decease, can avoid the necessity of the admittance of the trustees of his wiU, and the payment of a fine by them before a sale can be efiected ; and if so, how ? A. — Instead of devising the copyhold estate to trustees to sell, the will should contain a direction that the estates should be sold by the trustees, / as by so doing the. purchaser will be at once admitted, and the fine and expense of the admittance of the trustees will be avoided. This remark, however, is only applicable where the copyholds are to be sold imme- diately after the testator's death : (AUnutt's Pract. Wills & Adms. 22, ' 3rd edit. ; Prideaux's Conv. 99, 2nd edit.) Q. — A devisee of copyhold estate dies without being admitted. Will a devise by him operate to pass it, and under what authority ? A. — A devisee of copyhold estate is empowered to devise his interest, although not admitted, by the 1 Vict. c. 26, s. 3: (Will. Real Pro. 312, 4th edit. ; Steph. Com. vol. 1; Burton's Comp. pi. 1289 n.) Q, — Of what tenure will an allotment under an inclosure act, made • ; the act to be silent in, this '^ A. — ^An allotment made under an inclosure act to the . owiler or a ; customary estate, in respect of his right of common appendant, will not , be of copyhold or customary tenure, unless so provided in the act: (see Burton's Comp. pi. 1258 n ; Co. Litt. 58 b.) Q. — To whom, in the absence of any special custom to the contrary, belong the timber and minerals upon and under the waste land of a copyhold manor, and to whom the timber and minerals under copyhold lands ? A. — The lord is entitled to the timber and minerals upon and under the waste lands of a copyhold manor, and also the timber and minerals upon and under the copyhold land. But, as to the copyhold land, the lord cannot come upon it to work the mines or to cut the timber without the tenant's consent : (see Will. Real Pro. 292, 4th edit. ; Steph. Com. vol. 1.) Q. — Can a court of equity make a decree for partition of copyhold estate as of freeliold, and under what authority ? A. — A court of equity may make a decree for the partition of copyhold estate, under the auth^ifr^^ofg^g^t^ute^4^^^Vict. c. 35, s. 85. ••44 EXAMINATION QUESTIONS AND ANSWERS. * Q. — Describe how copyholds are conveyed inter vivos. The like as to customary freeholds. A. — The legal estate in copyholds passes by surrender and admittance (see ante); customary freeholds are conveyed in some cases by deed and admittance instead of by surrender ; in others, by bargain and sale : (Burton's Comp. pi. 1283; Will. Real Pro. 294, note, 4th edit.) Q. — Can the lord " approve'' part of the waste lands of the manor; and, if so, under what law, and to what extent, and subject to what restrictions, if any ? A. — Under the statute of Merton (20 Hen. 3, c. 4), every lord may inclose or " approve" any part of the wastes, provided he leave a suffi- ciency of common for the tenants : (1 Steph. Com. 621, 2nd edit.; Arch. L. & T. 343, 2nd edit.) Q. — Can copyholds be entailed ; and by what means, and how barred ? A. — The statute De donis does not apply to copyholds ; therefore, unless there is a custom to that eflFect, copyholds cannot be entailed. In manors in which there is no custom to entail, a gift of copyhold estate to a man and the heirs of his body will give him an estate analogous to a fee simple conditional, which a freeholder would have acquired under such a gift before the passing of the statute De donis. Before he has issue he will not be able to alien ; but after he has issue he may alien at pleasure : (see Will. Real Pro. 299, 4th edit. ; Burton's Comp. pi. 1284; Steph. Com. vol. 1.) An estate tail in copyhold is barred by surrender: . (3 & 4 Will. 4, c. 74, s. .50 ; Browell's Real Pro. Stats. ; Will. Real Pro. 301, 4th edit.; Steph. Com. vol. 1.) Q. — State the mode of barring legal and equitable estates tail in copy- hold lands, and the mode in which a protector of a settlement may give his consent to a copyholder barring his estate tail whether legal or equitable. A. — The 3 & 4 Will. 4, c. 74, s. 50, enacts that a disposition under this act, by a copyhold tenant having the legal estate, is to be made by surrender ; but if his estate is an estate in equity only, then the entail may be barred either by surrender or deed : (sect. 50.) But the sur- render or deed requires no enrolment, except an entry on the court-rolls of the manor : (sect. 54.) If the protector consents by deed, such deed "must, either at or before the surrender is made, be executed by the pro- tector and produced to the lord of the manor, or to his steward or deputy; otherwise the consent is void, and the deed is to be indorsed by the lord or his steward, acknowledging the production, which deed and indorse- ment are to be entered on the court-rolls. If the consent of the protector is not given by deed it must be given to the person taking the surrender, barring the entail ; and if the surrender is made out of court, the memo- randum of surrender must state the consent and be signed by the pro- tector, which must be entered on the court-rolls of the manor : (see sects. 51, 52 & 53, and references sup.) Q. — Explain in a familiar manner the services rendered in respect of copyholds, and to whom; and the reasons for the general discontinuance and commutation of such services into money payments ? A. — The services rendered in respect of copyholds were rendered to the lord of the manor, and consisted of fines, heriots, rents, reliefs and customary services ; also the lord's interest in the timber growing on the copyhold lands. '^^^[j^l^'ffyif^iXi.^^ff^nuance were, that they CONVEYANCING. 145 were found inconvenient to the copyhold tenant, and without any sufficient corresponding advantage to the lords : (Will. Real Pro. 306, 4th edit.) Q. — Can the lord of a copyhold manor be compelled to enfranchise? If so, in what cases and by whom ; and how are the expenses of the enfranchisement to be borne ? A. — By the 1.5 & 16 Vict. c. 51, it is provided that any time after the next admittance to any lands on or after the 1st July, 1853, either the lord or the tenant may compel enfranchisement. The expense of the enfran- chisement is to be borne by the party requiring it : (see sects. 1, 30.) The 21 & 22 Vict. c. 94 (which repeals sects. 2, 11 and 27 of the 15 & 16 Vict. c. 51) makes new provisions for compulsory enfranchisement. It enacts that any lord or tenant of any lands, to which the last admittance took place on or before the 1st of July, 1853, may compel enfranchise- ment ; but as to the tenant, before he is in a position to do so, he must pay or tender such a fine, &c., as would be due on admittance, or death after the above date ; and he must also pay two-thirds of such sum as the steward would have been entitled to for fees in respect of such admit- tance : the tenant may then give notice to the lord, or his steward, that he wishes to enfranchise. If the lord wishes to enfranchise, he must also give notice of his intention to the tenant. The consideration to be paid to the lord for such enfranchisement (unless agreed to the contrary) is to be ascertained, under the direction of the Copyhold Commissioners, upon a valuation to be made as pointed out by the act, to which the student is referred. The effect of it, however, is that when the rights to be computed consist of heriots, &c., at fixed rates, or if the land be rated at the poor- rate at less than 20Z. per annum, the valuer is to be appointed by justices at petty sessions held in the division in which the manor is situate ; but in other cases by valuers, one appointed by the lord, the other by the tenant. The commissioners have power to award enfran- chisement on the terms of the valuation, and may confirm the same, which confirmation is to have the effect of a deed of enfranchisement under the provisions of the copyhold acts. The consideration may be charged upon the land, as may also the expenses, and be discharged by periodical payments, the expenses covering a period not exceeding fifteen years ; and the charges so made are to be a first charge on the land, having priority over all charges, mortgages, and incumbrances whatsoever, except tithe commutation rentcharges, and charges for drainage under the statute for that purpose. This act is to be read with the other Copyhold Acts. DOWER, FREEBENCH AND CURTESY. Qtiestion. — rWhat is dower? Answer. — It is an estate for life which the law gives the widow (married before the 1st Jan. 1834) in a third part of all the lands and tenements of which her husband was solely seised in fee simple or fee tail, in possession, at any time during the coverture, and which lands any issue which she might have had might, by possibility, have inherited : (see Will. Real Pro. 190, 4th edit. ; 1 Steph. Com, 249. As to dower since 1834, see 3 & 4 Will, 4, c. 105.) Digitized by l^icrosoft® 146 EXAMINATION QUESTIONS AND ANSWERS. Q. — ^Is the title to dower, since the act for amendment of the law relating to dower, enlarged, and in what instances ? A. — Yes; as to women married since the 1st Jan. 1834, for by Stat. 3 & 4 Will. 4, c. 105, the widow is entitled to dower out of equi- table as well as legal estates of inheritance in possession (not being an estate in joint tenancy) ; she is also entitled to dower ont of lands to which the husband has a right of entry or action, although he has not had the legal seisin. But, on the other hand, women married since the 1st Jan. 1834, are not entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime, or by his will, and all partial estates and interests, and all charges created by any disposition or will of the husband, and all debts, incumbrances, contracts and engagements to which his lands may be liable, shall be eflfectual as against the right of his widow to dower. The husband may also, either wholly or partially, deprive his wife of her right to dower by any declaration for that purpose made by him, by any deed, or by his will : (see Will. Eeal Pro. 193, 194, 4th edit. ; 1 Steph. Com. tit, "Dower.") Q. — What is the difference between common law dower, and dower as regulated by the 3 & 4 Will. 4, c. 105 ? A. — At common law, if, at any time during the coverture, the husband became solely seised of any estate of inheritance, to which any issue which the wife might have had might, by possibility, have been heir, she, from that time, became entitled, on his decease, to have one equal third part of the same lands allotted to her, to be enjoyed by her in severalty during the remainder of her life. This right, having once attached to the lands, adhered to them, notwithstanding any sale or devise which the husband might make. It consequently became necessary (and, as to women married before the 1st Jan. 1834, still is) for the husband, when- ever he wished (or wishes) to make a valid conveyance of his lands, to obtain the concurrence of his wife, for the purpose of releasing her right to dower. As to women married after the 1st Jan. 1834, the stat. 3 & 4 Will. 4, c. 105, has granted a right to dower out of equitable as well as legal estates of inheritance in possession, excepting, of course, estates in joint tenancy ; the widow is also dowable out of lands to which the husband had a right merely under this act, but no widow is entitled to dower out of lands which have been absolutely disposed of by the husband in his lifetime, 'or by his will. And all partial estates, and interest and charges created by the husband, and all debts, incumbrances, contracts and engagements to which his lands may be liable, shall be effectual as against the widow's right to dower. The husband may also bar her right to dower, either wholly or partially, by any declaration for that purpose made by him, by any deed, or by his will. Where the husband devises any land to his wife, out of which she would have been dowable, she shall not be entitled to dower out of any land, unless a contrary intention appear. But no gift or bequest of personal estate, or of land not liable to dower, shall prejudice the wife's right to dower, unless a contrary intention be declared by the will : (see sects. 2 to 10 ; Will. Eeal Pro. 190, et seq. 4th edit. ; Sugd. Real Pro. Stats, chap. 3 ; 1 Steph. Com. tit. " Dower.") Q. — If A., on the sale of his estate, covenant for quiet enjoyment against all persons claiming by, from, or under him, would a claim of dower by his mother come within the covenant ? Digitized by Microsoft® CONVErANCING. 147 A. — Under such a covenant as the foregoing, a claim of dower by A.'s mother would not come within it, for she does not claim " by, from, through, or under" A. : (see Sug. V. & P., Cone. View, 461.) Q. — ^By what means, in a conveyance of freeholds, would you bar the dower of the wife of a purchaser married before the 1st Jan. 1834; and by what means would you bar it,- if the purchaser married after that date? A. — The mode of barring the dower of the wife of a purchaser, married before 1st Jan. 1834, is to give him, first, a general power of appointment by deed ; and in default of, and until such appointment, the land is then given to him for life, and, after the determination of his life interest by any means in his lifetime, a remainder (vested) is limited to a trustee and his heirs during the purchaser's life. This remainder is then followed by an ultimate remainder to the heirs and assigns of the purchaser for ever; under these limitations the wife's right to dower cannot attach, for the purchaser has not at any time during his life an estate of inheritance in possession : (see Will. Real Pro. 252, 253, 4th edit.) K the purchaser was married after the 1st Jan. 1834, all that is necessary is to insert in the purchase deed a declaration that the purchaser's widow shall not be dowable out of the lands : (3 & 4 Will. 4, c. 105, s. 6; Will, ubi sup. ; Steph. Com. ubi sup.) Q. — What was the form of conveyance of freeholds of inheritance, to prevent the attachment of the purchaser's wife's dower, before the statute of William the Fourth ? Is it now ever necessary, and in what cases ? A. — ^There must have been the usual limitations to trustees to bar dower, and it was also usual to insert an express declaration in the con- veyance that the purchaser's wife should not be dowable^ And this formmust still be used if the purchaser was married prior to the 1st Jan. 1834; as the statute of William the Fourth only applies to purchasers married after that date : (see supra.) For a form of con- veyance see 2 Hughes Pract. Sales Real Pro. No. 1, Appendix. Q. — ^What is the difference between jointure and dower ; and how is the former constituted, and how does the latter arise ? A. — Jointure is an estate for the life of the wife, to take effect imme- diately after her husband's death, and arises by the express contract of the parties, and is in lieu of dower. Dower (at common law) is an estate for the life of the wife in a third part of the lands and tenements of which the husband was seised in fee simple or fee tail in possession, at any time during the coverture, and of which any issue which she might have had might, by possibility, have been heir, and arises by operation of law : (see Will. Real Pro. 190, 192, 193, 4th edit. ; I Steph. Com. 249, 255.) Q. — What is the effect of a jointure upon dower, when the instrument creating the jointure does not contain the common stipulation, that the jointure is to be in lieu of dower? A. — It will still bar the widow's right to dower in equitv on the implied intention of the parties : (see Sug. Real. Pro. Stats. 256. 257.) Q. — Is the widow of a tenant in tail, who died without issue, entitled to dower ? Would the widow's right, if any, be affected, and how, if her deceased husband had been tenant in tail after possibility of issue extinct? A. — The widow of a tenant in tail will be entitled to dower, although he died without issue. It is not necessary that issue should be actually Digitized by !\Mci'osoft® 148 EXAMINATION QUESTIONS AND ANSWEBS. born to entitle the wife to dower; it is sufficient if the wife might have had issue who might have inherited : (Will. Real Pro. 191, 4th edit.) If the husband was only tenant in tail, after possibility of issue extinct, issue could not possibly have been born ; therefore, his widow will not be entitled to dower : (Will, ubi sup.; 1 Steph. Com. 251.) Q. — What is freebench, and how does it arise ? A. — Freebench is that estate in copyhold lands that a wife has after the death of her husband for her dower, according to the custom of the manor. It only arises by custom : (see Will. Real Pro. 321, 4th edit. ; Holth. Law Diet. 2nd edit.) Q. — ^What is the distinction between freebench and dower? A. — The distinction between freebench and dower is, that freebench is a widow's estate in such lands as her husband died seised of; whereas dower (at common law) is the estate of the widow in all lands of which the husband was seised during the coverture : (see Holth. Law Diet. 2nd edit.) Q. — A., having married after the Dower Act (3 & 4 Will. 4, c. 105), purchased, and was duly admitted to, copyhold lands, and by a deed executed by him declared that his widow should not be entitled to dower out of such copyhold lands. Will the widow be barred of her customary dower out of such copyhold lands by such deed ? A. — The declaration against the dower of the widow out of the copy- hold lands, since the Dower Act, would be inoperative, as that act does not affect copyholds, the freebench in which is generally subject to the husband's power of disposition : (see Sug. Real Pro. Stats. 259.) Q. — What is a tenancy by the curtesy of England ? A. — Where a man marries a woman seised of an estate of in- heritance, and has by her issue, born alive, capable of inheriting her estate ; in this case he shall, on the death of his wife, hold the lands for his life as tenant by the curtesy of England: (see Holth. Law Diet. 2nd edit. ; Will. Real Pro. 185, 4th edit. ; 1 Steph. Com. 246.) Q.^-What are the requisites to establish the husband's right as tenant by the curtesy of England ? A. — There are four requisites necessary to make a tenancy by the curtesy : — 1 . Marriage, which must be legal. 2. Seisin of the wife, which must be an actual one, not a bare right to possess, but a seisin in deed. 3. Issue, born alive during the life of the wife, and capable of inheriting as heir to the wife. 4. Death of the wife : (see 1 Steph. Com. 247, 248; Will. Real Pro. 185, 186, 4th edit.) Q. — Is there any and what exception as to such tenancy with respect to any and what lands in any particular county in England? A. — By the custom of gavelkind the husband has a right to his curtesy whether he has had issue or not ; but the curtesy in gavelkind lands extends only to a moiety, and ceases if the husband marries again : (WilL Real Pro. ubi sup.) Q. — To entitle a husband to curtesy is it necessary that the issue should be next heirs of the wife ? A. — Yes ; it is necessary that the issue should be capable of inheriting as heir to the wife. Thus, if the wife is seised of lands in tail male, the birth of a daughter only will not entitle the husband to be tenant by the curtesy ; for the daughter cannot inherit such estate as heir to her mother : (see Will. Real Pro. ubi sup. ; 1 Steph. Com. uhi sup.) Digitized by Microsoft® CONVEYANCING. 149 Q. — How may dower and curtesy respectively be barred ? A. — As before seen, dower may be barred by taking the property sub- ject to dower uses, or by declaration; it may also be barred by the bus- I band's treason, or by a dissolution of the marriage, or by the widow detaining the title deeds. It may be destroyed by the widow releasing her right to dower, or by accepting jointure. Curtesy may be barred by reason of the marriage not being properly solemnized, or by a dissolution of the marriage : (see references stip.) VOLUNTARY SETTLEMENT OR CONVEYANCE. Question. — What is understood by the term voluntary settlement ? In whose favour and on what grounds may it be set aside? Answer. — A settlement is said to be voluntary when it is made with- out a consideration. It may be set aside in favour of a subsequent bona fide purchaser for value, or the creditors of the party if he was indebted at the time : (see 13 Eliz. c. 5 ; 27 Eliz. c. 4; 1 Hughes Pract. Sales Real Pro. 223, et seq. 2nd edit.; Prideaux's Conv. d32, 533, 2nd edit.) Q. — What are the different kinds of considerations to support a volun- . tary conveyance or settlement ? A. — It must be a valuable consideration, i. e., money or money's worth; marriage is a valuable consideration. But the consideration known as a good consideration will support a voluntary settlement or conveyance as between the parties themselves : (Story's Eq. Jur. § 425.) Q. — Is a voluntary settlement good against a purchaser or mortgagee for a valuable consideration with notice of such settlement ? A. — The settlement is void as against a purchaser for valuable con- sideration, although he has notice of it : (see Sug. V. & P. Cone. View, 566 ; Story's Eq. Jur. ubi sup.; Prideaux's Conv. ubi sup.; Smith's Man. Eq. 85, 3rd edit.) Q. — In what case can a settlement made after Inarriage upon a wife and children be set aside ? (a) A. — ^If the settlement be made in pursuance of articles entered into prior to the marriage, it will be as binding and conclusive as if made before marriage, and cannot be set aside in favour of purchasers or credi- tors, for marriage is a valuable consideration: (Hughes' Pract. Conv. 601 ; TnA. ubi sup.) But, if the settlement is not made in pursuance of articles entered into previous to the marriage, it is a mere voluntary settlement, and may be set aside in favour of creditors to whom he was indebted at the time he executed the settlement, and also in favour of bona fide purchasers for valuable consideration ; and it makes no difference whether the purchaser had or had not notice of the settlement: (13 Eliz. c. 5; 27 Eliz. c. 4; Hughes, s?^p.; Prid. sup.) But care must be taken to distinguish between a mere voluntary conveyance, and gng taken in the <3 name of "^lie^ purchaser's wife and children, the latter of which is not ' considered to be within the meaning of the .27 Eliz. c. 4, and therefore cannot be defeated by a subsequent bona fide purchaser for valuable consideration : (Sug. V. & P. Cone. View, 567.) (o) Also asked in the following manner: — Q. If the owner of an estate convey it in trust for the benefit of his wife and family, and then sell it, is the purchaser entitled to it? If so, is there any exception to the rule? Digitized by Microsoft® 150 EXAMINATION QUESTIONS AND ANSWERS. LEASES. Question. — ^What is a lease, and state the general particulars belonging to it? Answer. — It is properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor has in the premises ; for, if it be for the whole interest, it is more properly an assignment of a lease : (2 Bla. Com. 317; 1 Steph. Com. 475; Arch. L. & T. 2nd edit.) Q. — Give the outline of an ordinary lease for twenty -one years of a private dwelling-house in London. A. — After the date, parties, and demise of the premises, the habendum for the term, the redendum of the rent (except while premises are unin- habitable by reason of fire) clear of all rates and taxes, come the cove- nants by lessee to pay rent and taxes (except land-tax); and to paint and repair (except in case of fire); to surrender at the end of term ; and not to suffer any trade to be carried on. Power to lessor to enter to view the premises and give notice of repairs ; and a proviso for re-entry on nonpayment of rent or breach of covenant. Also a covenant by lessor for quiet enjoyment on payment of rent and performance of covenants. Power for either party to determine lease at the end of a given number of (generally seven or fourteen) years. A covenant to insure (by lessor or by lessee, as agreed) is generally inserted, and sometimes the lessor covenants for renewal. The lessee also frequently covenants not to assign or underlet without licence. A schedule. of fixtures is generally appended: (see Arch. L. & T. 63, 2nd edit. ; Prideaux's Conv. 346, &c., 2nd edit.) Q. — Show the outline of an ordinarv farmins l^ gg e for seven years ? A. — After the date, parties, demise,(29 Car. 2, c. 3 ; 8 & 9 Vict. c. 106 ; Will. Real Pro. 326, 4th edit. ; 1 Steph. Com. 476.) Q. — Is there any, and, if any, what distinction between a tenancy at will and a tenancy from year to year ? .4. — Yes ; for either party, landlord or tenant, may determine a tenancy at will at his own pleasure : (Co. Lit. 55, but see post.) But as to a tenancy from year to year, both landlord and tenant are entitled to notice before the tenancy can be determined by either of them. This notice must be given at least half a year before the expiration of the current year of the tenancy ; for the tenancy cannot be determined by one only of the parties, except at the end of any number of whole years from the time it began : (Will. Real Pro. 325, 326, 4th edit.) Q. — Does the surrender of an original lease aflPect an under lease ? and give a reason for your answer. A. — In order to the effectual surrender of an original lease, it is neces- Digitized by Microsoft® Conveyancing. 155 sary that any under lease theretofore granted be also rendered up, for, unless this be done, the underlease will continue to exist, inasmuch as where an estate ceases, except by condition expressed on its creation, such cesser does not limit any interest or charge derived thereunder. However, to provide against the consequences of a surrender in certain cases, the 4 Geo. 2, c. 28, s. 6, enacts that in case any lease shall be duly surrendered in order to be renewed, and a new lease made and executed by the chief landlord or landlords, the same new lease shall, without a surrender of all or any of the under leases, be as good and valid to all intents and purposes as if all the under leases derived thereout had been likewise surrendered at or before the taking of such ifew lea^; the owners of the new lease being invested with the same right to the rent of under tenants, and the same remedy for recovery thereof, as if the original leases had been kept on foot : (Will. Real Pro. 204, 205.) Q. — A., in writing, agrees to let land to B. for a term of years at a certain rent ; B. enters into possession, and pays the rent to A. ; what is B.'s tenancy and what right has he against A. ? A. — The Statute of Frauds requires all leases for a longer period than three years, or a lower rent than two-thirds of the full improved value of the land, to be put into writing and signed by the party making the same, &c. And the 8 & 9 Vict. c. 106, provides that a lease required to be in writing must be made by deed : (see ante.) If not by the Statute of Frauds, they have the effect of estates at will only, and by the Statute of Victoria they are absolutely void at law. Therefore, if B. enters into possession under the agreement merely, he will only be con- sidered as a tenant at will, or at most a tenant from year to year : (Arch. L. & T. 23, 61, 2ud edit. ; 1 Steph. Com. 272 ; 1 Hughes Pract. Sales Real Pro. 68, 69, 2nd edit.) But B. will be entitled to have a lease granted by virtue of the agreement : (Will. Real Pro. 327, 4th.edit.) Q. — ^A has a lease for thirty years, and the same lessor makes an- other lease of the same property to B. for sixty years ; the lessor after- wards sells and conveys the freehold to C, and it becomes necessary to merge the thirty years' term ; how is this to be effected ? A. — It is supposed the terms are common law terms, so that the latter would only be an interesse termini, and would not, therefere, prevent a surrender to the freeholder : (Co. Lit. 338 a ; Burton's Comp. . pi. 907.) A. might, therefore, surrender his term, then B.'s ternj (being to commence on the determination of A.'s estate) would come into pos- session, and there would be an effectual merger of A.'s term : (Will. Real Pro. 341, 4th edit.) Q. — If -a person seised in fee makes a lease, reserving rent payable half-yearly, and dies in the middle of a half year, who is entitled to "the half-year's rent when due ? A. — If a person seised in fee makes a lease, reserving rent payable half-yearly, and dies in the middle of a half-year, the half-year's rent, when due, will belong to the heir or devisee, as the Apportionment Act (4 Will. 4, c. 22), though speaking in the beginning of the second sec- tion of tenants in fee, has been held not to apply to the apportionment of rent between the real and personal representatives of a person whose interest is not terminated by his death : {Browne v. Aymott, 13 L. J. (N.S.) 232, Ch. ; 8 Jur. 568 ; AUnutt's Pract. Wills and Adms. 247, 3rd edit. ; Browell's Stats. 175.) Nor does this statute apply to leases created by parol : {Cathy v. Arnold, 32 L. T. Rep. 369.) '>un-^ , ,u^ uuf/^ ^ j^w^v^'^.'fy^'^*^ ^ ^-7 156 EXAMINATION QUESTIONS AND ANSWERS. Q. — Where a tenancy is for a term of years certain, is any, and what,; notice to quit necessary ? A. — "When a lease is determinable on a certain event, or at a par- ticular period, no notice to quit is requisite, as both parties are equally apprised of the determination of the term : {Right v. Darbi/, 1 T. R. 162 ; Arch. L, & T. 220, 2nd edit.) Q. — In a tenancy from year to year is any, and what, notice to quit necessary ? A. — Yes ; notice must be given at least half a year before the expira- tion of the current year of the tenancy : (Will. Real Pro. 325, 326, 4th edit. ; Arch. L. & T. 221, 2nd edit.) Q. — ^If a tenancy continue after the expiration of a lease, without any new agreement, on what terms does the tenant hold ? A.— He is a tenant at sufferance only : (Will. Real Pro. 325, 4th edit. ; 1 Steph. Com. 273.) ^" . Q.— What is a tenancy at sufferance ? -fi^ J'^.f^J^^^ ^ A. — A- te»aney at ssfieraace is where a person has originally come into possession by a lawful title, and holds such possession after his title has determined: (Will. Real Pro. 325, 4th edit. ; 1 Steph. Com. 273.) ; Q. — What is a tenancy at will ? 'a^*^ Jit^^Lo^. A. — Where the term or interest of any tenant holding under a lease or agreement in writing of any lands, tenements, or hereditaments for any term or number of years certain, or from year to year, shall hav.fi expired, or been determined either by the landlord or tenant by regular notice to quit, and such tenant, or any one holding or claiming by or under him, shall refuse to deliver up possession accordingly, after lawful demand in writing made and signed by the landlord or his agent, and served personally upon, or left at the dwelling-house or usual place !> of abode of, such tenant or person, and the landlord shall thereupon proceed by action of ejectment for the recovery of possession — at the foot of the writ in ejectment may be addressed a notice to such tenant or person, requiring him to find bail, if ordered by the court or judge : (see 15 & 16 Vict. c. 76, s. 213 ; Arch. New C. L. Pract. 294, 295, 2nd edit.; and see ante, pp. 110, 111.) Q. — Where a lessor brings an action of ejectment for non-payment of rent reserved by lease, for want of sufficient distress on the premises, and obtains judgment and possession under an execution, can the lessee obtain relief at law or in equity ? A. — The tenant may obtain relief in equity, if he applies within six calendar months next after the execution of the judgment on the eject- ment, and on payment of all arrears of rent and full costs : (see 15 & 16 Vict. c. 76, s. 210 ; Will. Real Pro. 202, 4th edit.) Digitized by Microsoft® CONVEYANCING. 157 ■ Q. — State the principal covenants on the part of the lessee which should be contained in a building lease of land in a town, to be granted by a freeholder. A. — Covenants to pay rent and taxes ; to build (according to the agree- ment) ; to repair ; to paint ; to insure in joint names of lessor and lessee, and to surrender at the end of term. The lease should also contain powers of entry for the lessor to view the premises, and give notice of repairs, and powers of re-entry on non-payment of rent, or non-perform- ance of covenants. These are the principal and usual covenants, but special covenants are often necessary, as to construct sewers and roads, or to bear a portion of the expense thereof. MOETGAGES. Question. — "What is a mortgage ? Answer. — A mortgage {mortgagium, from mort, death, and gage, pledge) may be described to be a conveyance of lanris by a debtor to his creditor, as a pledge or security for the repayment of a sum of money borrowed. The debtor who so makes the conveyance of his lands, or so puts them in pledge, is termed the mortgagor, and the creditor to whom the lands are so conveyed as a security for the money lent, is termed the mortgagee. Mortgages are of two sorts : either the lands are conveyed to the mortgagee and his heirs in fee-simple, with a proviso that, if the mortgagor pays the money borrowed on a certain day, the mortgagee will reconvey the lands ; or else the lands are conveyed to the mortgagee, his executors, administrators and assigns for a long term of years, with a proviso that if the money borrowed is repaid on a certain day the term shall cease and become void : (Holth. Law Diet. 2nd edit. ; 1 Steph. Com. 282 ; Will. Real Pro. 349, 4tk edit.) Q. — ^What is the difference between the vivum vadium, or living pledge or mortgage, and the mortuum vadium, or dead pledge or mort- A. — The vivum vadium, or living pledge, is when a man borrows a , sum of money of another (suppose 200/.) and grants him an estate, as of' 20/. per annum, to hold till the rents and profits shall repay the sum borrowed ; in this case the land or pledge is said to be living ; it subsists and survives the debt, and immediately on the discharge of that reverts back to the borrower : (Holth. Law Diet. 2nd edit.) The mortuum vadium, or dead pledge, is where lands are conveyed by one to another as a security for money lent, either in fee or for a term, with a condition that if the money be repaid on a certain day, with interest, the lands shall be re- conveyed to the borrower, and with a further proviso, that if default shall be made in repayment of the money, the person lending the money shall hold the lands without any interruption from the borrower. The person who conveys the land is termed the mortgagor, and the person who lends the money, and to whom the land is conveyed, is termed the mortgagee : (Will. Real Pro. 349, et seq. 4th edit. ; Coote on Mortgages, 4, et seq. 3rd edit. ; 1 Steph. Com. ubi sup.) Digitized by Microsoft® 158 EXAMINATION QUESTIONS AND ANSWERS. Q. — What is the legal distinction between a mortgage in fee and a mortgage for a term of freehold lands ? A. — One is a freehold, the other only a chattel interest. At law a mortgage in fee is an absolute conveyance to a man and his heirs, sub- ject to an agreement for a reconveyance on a certain given event ; the mortgagee having the legal estate in fee-simple vested in him by the conveyance, and the only interest remaining in the mortgagor is the equity of redemption (Will. Real Pro. 349, et seq.), whilst a mortgage for a term is only a chattel real. They are more preferable in one respect than a mortgage of the fee-simple, as on the death of the lender the pledge, as well as the interest in the debt, devolves on his personal representatives : (Burton's Comp. pi. 858.) Q. — What is required to constitute an equitable mortgage ? '"''^ «/'*6/Zi A. — An equitable mortgage is created by a deposit of title deeds.with a creditor as security for an antecedent debt, or on a fresh loan of money: (see Story's Eq. Jur. § 1020.) Or by an agreement in writing showing the creditor's intention to make his land or other property a security for the debt : (see Smith's Man. Eq. Jur. 261, 3rd edit.) bluil'- ^^f Q. — WiU the deposit of deeds by way of mortgage, without a deed or written memorandum, be a security ? A, — Yes ; it constitutes an equitable mortgage : (see supra ; and see Will. Eeal Pro. 358, 4th edit.) Q. — State briefly the ordinary form and construction of a mortgage deed of real estate. A. — The parties, recitals, testatum (where, in consideration of the money lent, the premises are granted to the mortgagee) and the haben- dum ; then follow the proviso for redemption and reconveyance by the mortgagee, on payment of principal and interest, /and for mort ga gor ta _ l_enjoj_until_jie£ault ; covenants by the mortgagor to pay principal and interest, to keep the buildings in repair and insured, and the usual abso- lute covenants for title, and powers of sale on default in paying principal and interest : (see Prideaux's Conv. 2nd edit.) Q. — If a mortgage for a term of years be made to .two persons, and one dies, having appointed a third person his executor, can the surviving mortgagee give a valid receipt for the mortgage debt ; and if not, what provision should be inserted in the mortgage deed to enable him to do so ? A. — It is a rule of equity, that when money is advanced by more persons than one, it shall be deemed, unless the contrary is expressed, to have been lent in equal shares by each ; such being the case, the executor or administrator of any of the parties would, on his decease, be entitled to receive his share. In order, therefore, to prevent the appli- cation of this rule, it is usual to declare, in all mortgages made to trustees, that the money is advanced by them on a joint account, and that in case of the decease of any of them in the lifetime of the others, the receipts of the survivors or survivor shall be an effectual discharge for the whole of the money : (see Will. Eeal Pro. 360, 361, 4th edit.) Q. — Sketch the outline of a mortgage in fee from A. to B., C. and D., who are trustees of the money advanced. I A. — After the parties and recitals, follow the testatum and habendum, I proviso for redemption and reconveyance, /and fo r mortgagor to enjoy ' I until d eiault>-/ The usual absolute covenants by the mortgagorToFtitle, for payment of principal and interest, to keep premises in repair, /to pa; ^ Digitized by Microsoft® CONVETANCING. 159 V_rates_ari3jta5eSj^nd to insure, with a power of sale for B., C. and D., or the survivors or survivor of them, or the heirs of such survivor, or their or his assigns, with a declaration that the money is advanced upon a joint account. Q. — State how the covenants for title on a mortgage and a purchase differ ? A. — On a mortgage the covenants for title given by the mortgagor are absolute, that is, extending to the acts of the whole world ; whilst those given on a purchase are qualified covenants, being restricted to the acts of the covenantor, or to himself and those through whom he claims by wiH-^r descent : (see Will. Real Pro. 369, 4th edit.) Q. — ^What are the proper modes of mortgaging freehold, copyhold and leasehold estates ? State each severally. A. — Freeholds are either mortgaged in fee-simple or for a long term of years ; but they are now more generally mortgaged in fee- simple, as it is more valuable : (Will. Real Pro. 356, 4th edit.) A mortgage of copy- holds is effected by surrender (in a similar manner to a purchase), sub- ject to a condition, that on payment by the mortgagor to the mortgagee of the money lent, together with interest on a given day, the surrender shall be void ; the mortgagee, however, is seldom admitted, unless he should wish to enforce his security. In the mortgage of leaseholds the term is assigned by the mortgagor to the mortgagee, subject to a proviso for redemption or re-assignment on repayment of the money lent, with interest, on a given day ; mortgages of leaseholds are, however, frequently made by way of demise or under lease, as by this means the mortgagee is not rendered liable to the landlord for payment of rent and performance of the covenants of the lease : (Will. Real Pro. 356, e( seq. 4th edit. ; Coote on Mortgages, 108, et seq. 3rd edit.) Q. — In a mortgage of leasehold estate what should be avoided to pro- tect the mortgagee from being liable to the rents and covenants on the lease ? A. — The mortgage should not be by assignment, but by under lease : (see supra.) Q. — Is it useful, and if so in what respect, to take a bond from a mort- gagor in addition to the mortgage and covenant for payment of principal and interest ? , I A. — ^If a debt is secured by the mortgage of real estate and also by ■; '' covenant, and collaterally by bond, the mortgagee may pursue all his V ' remedies at the same time. If he obtains only part payment on the , , Tipnd or covenant he may go on with his foreclosure suit, and, giving «< credit for what he has recovered on the bondLpr covenant, he may fore- ,' ' close for non-payment of the remainder. On the other han'd, if he obtains 'i-j. a foreclosure suit first, and alleges that the value of the estatejs not / suflicient to pay the debt, he may sue on the bond or covenant ; but -' his so doing would open the foreclosure, and the mortgagee would again be entitled to redeem : (see Smith's Man. Eq. Jur. 253, 254, 4th edit. ; and see Coote on Mortgages, 497, 3rd edit.) Q. — What is an equity of redemption ; and is the party entitled to it for ever, and when barred? A. — ^Equity of redemption is the right which equity gives a mort- gagor, or his representatives, of redeeming his mortgaged estate after the appointed period has gone by for payment of the sum of money Digitized by Microsoft® 160 EXAMINATION QUESTIONS AND ANSWliRS. which was due on the mortgage : (1 Staph. Com. 293, 3rd edit. ; Will. Keal Pro. 353, 4th edit.) A mortgagor's right to the equity of redemp- tion is barred at the end of twenty yea rs from the time the mortga gee has obtained pos sessioa or receipt of the profits of any land, or the rece ipt ^^aWj'"gBt~comfiria ed in his mo rtgageTl inless in the mean time an acEnowledgmin tof the title of the mortgagor, ot of his ri g'ht of rp.d emp- i tloh, stiall have been given_to_theniflrtgagpr_ or some person claiming hi s eatatRj oTjv^jiTPJgj^g^nrfinf'jiTTu^^ or pers on, in writing, signed by ■ £he mortgagee, or the person claimin g through him : (Sug. Eeal Pro. ' S tats. 1U 9;- 1 lU ; Browell's KearTroTStats. 25, 65.) Q. — What is meant by tacking a mortgage, and how can this be effected ? A. — K a third mortgagee, who has made his advance without notice of a second mortgage, can purchase the first legal mortgage, he may tack, as it is said, his third mortgage to the first, and so postpone the inter- mediate incumbrancer ; for in a contest between innocent parties, each having equal right to the assistance of a Court of Equity, the one who happens to have the legal estate is preferred to the others, the maxim being that when the equities are equal the law prevails : (WiU. Real Pro. 363, 364, 4th edit.; Story's Eq. Jur. § 412, 413 ; Coote on Mortgages, 385, ef seq. 3rd edit. ; Smith's Man. Eq. Jur. 4th edit.) Q. — Where there are three mortgagees, can the third in any and what manner protect himself against the second ; and will the fact of his having had notice (when he advanced his money) of thef second mortgage interfere with such protection ? A. — A third mortgagee may, by purchasing the first legal mortgage, tack his third to the first, and so postpone the second. But to enable a mortgagee to tack, he must have had no notice of a second mortgage at the time of advancing his money, but it will make no difference that the third mortgagee at the time of purchasing the first had notice of the second mortgage : (see references supra.) Q. — ^Will the first mortgagee, on advancing more money and having notice of a mesne mortgage, be entitled to tack the third mortgage against the mesne mortgagee ? A. — To entitle the first mortgagee to tack he must have had no notice of the other incumbrance at the time of lending his money : (Coote on Mortgages, 417, 3rd edit.) An exception to this rule appears to have existed in a case of mortgage being made to secure the sum then lent, and also future advances, and a second mortgage being afterwards made to another person with notice of the first, and further advances being subsequently made by the first mortgagee with notice of the second; in which case it has been held the first mortgagee might tack against the second, because it was folly of the latter to lend his money on such security : (see Gordon v. Graham, 7 Vin. Abr. ; Coote on Mortgages. 417, 3rd edit. ; Will. Real Pro. 364, 4th edit.) But this case has been overruled, and it is now decided that you must not in any case have notice, at the time of advancing the money, of the intermediate incum brance, to entitle you to tack : (see Rolt v. Hopkinson, 32 L. T Eep 69, 112.) IruA-lM^. k k(44u^«a*^(.. vP»v^ fj'. Ti.^ : tf«^>,iz;i Q. — In a register county, does registration of a second mortgao-e amount to notice thereof ? /I.— The mere regis^^^^g^^^^^^^^^ot deemed constructive CONVEYANCING. 161 notice to subsequent purchasers as to collateral effects, so that the mere registration of a second mortgage will not prevent a prior mortgagee from tacking a third mortgage when he has no actual notice of the existence of a second mortgage : (Story's Eq. Jur. § 401, 402 ; Coote on Mortgages, 378, 3rd edit.; Smith's Man. Eq. Jur. 82, 3rd edit. ; Sug. V. & P. Cone. View, 405.) Q. — Is any notice necessary, and to whom, on taking a mortgage of the equity of redemption ? A. — On taking a mortgage of the equity of redemption, it is incum- bent on the person lending the money, first, to make inquiry of the prior mortgagee into the amount of his demand ; and, secondly, to give him express notice of the proposed mortgage : (Coote on Mortgages, 210, 3rd edit.) However, it is provided by stat. 4 & 5 W. & M. c. 16, that a person twice mortgaging the same lands, without discovering the former mortgage to the second mortgagee, shall lose his equity of redemption: (Coote on Mortgages, 211, 3rd edit.) Q. — Should a second mortgagee take any, and what, precaution so as to have priority over a second charge to the first mortgagee ? A. — He should not only give the first mortgagee express notice of the proposed mortgage, but he should also make inquiry of the prior mort- gagee into the amount of his demand. And it will be advisable, if the first mortgagee will permit, to put notice of the second mortgage on the principal title deed, such as the conveyance to the mortgagor, or the like : (Coote on Mortgages, 210, 3rd edit.) Q. — A mortgagee iB fee dies intestate : in whom do the estate and money vest ? A. — As the mortgagee has the legal estate, supposing the mortgage to be of the fee, it will, on his death intestate, descend to his heir-at-law; but in equity, as a mortgage is only considered as a security for the money lent, the personal representatives will be entitled to the money, and the heir-at-law will be compelled to join the personal representatives in con- veying the estate, although he will not be entitled to a shilling of the money : (see Will. Keal Pro. 354, 4th edit,) ,.,.;;,' Q. — A. is mortgagee in fee and dies without devising the security, and the mortgage debt is applicable by his executor to the payment of the testator's debts; suppose the heir-at-law of the mortgagee to be unwilling or incapable to reconvey the premises, to whom is the mort- gagor to pay the principal money and interest, and how is he to obtain an effectual reconveyance of those premises ? A. — If the heir-at-law of the mortgagee is unwilling or incapable of reconveying the premises, the way to obtain a reconveyance is to apply to the Court of Chancery for a vesting order under the 13 & 14 Vict. c. 60, which has the same effect as if the heir-at-law of the mortgagee j had duly executed a conveyance or assignment of the lands in the same manner i.^ 1 for the same estate. If deemed more expedient, a person will be appointed to execute a conveyance to have the same effect. The , money must be paid to the executors. Q. — A mortgagee in fee dies intestate as to the land invested in him as mortgagee, leaving an infant heir ; can any, and what, steps be taken to obtain a conveyance of the legal estate from the infant heir? A. — Yes; application must be made to the Court of Chancery for an order vesting the estate in the mortgagor, which will have the same Digitized by l\^crosoft® 162 EXAMINATION QfUESTIONS AND ANSWERS. effect as if the infant mortgagee had been twenty- one years of age, and had duly executed a conveyance or assignment of the lands in the same manner and for the same estate : (13 & 14 Vict. c. 60, s. 7.) Q.— A. makes a mortgage to B. in fee ; B. dies intestate : A. then wishes to pay off the mortgage. What assurance, and by whom executed, is necessary for effectually restoring the estate to A. free from the mortgage? ^.— The heir-at-law of the mortgagee must join the administrators in a reconveyance of the mortgaged estate. The reason for this is, that in a court of law the mortgagee is absolutely entitled, and on his death intestate the estate descends to his heir ; but in equity he has only a security for the payment of money, which, hke other personal estate, devolves on his executors or administrators, for whom the heir is only a trustee : (Will. Real Pro. 354, 4th edit.) Q. — If a freehold estate in mortgage be devised, is the devisee entitled to have the mortgage paid out of the testator's personal estate, there being no direction in his will to that effect ; and has the law on this point been altered, and when, and in what respect ? A.— By the 17 & 18 Vict. c. 11 3, it is enacted, " that where a person shall, after the 31st Dec. 1854, die seised of or entitled to any estate or interest in lands or tenements, and the same shall at his death be charged with the payment of any money on mortgage, and he shall not by his will or deed, or any other document, have signified any con- trary intention, the heir or devisee to whom the lands shall descend or be devised shall not be entitled to have the mortgage money paid out of the personal estate." It is, however, provided that this enactment shall not affect any rights claimed under any deed, will, or other instrument made before the 1st Jan. 1855. Before this act the heir or devisee was, as a general rule, entitled to have the mortgage debt discharged out of the personal estate of the testator or intestate : (Will. Eeal Pro. 362, 4th edit.) Q. — A. mortgages land, of which he is seised, to B. in fee, for securing the payment of a sum of money covenanted to be paid by A. ; A. after- wards devises the mortgaged land to C. ; is C. entitled to have the mortgage debt discharged out of A.'s personal estate ? (a) A. — C. must take the land charged with the mortgaged debt, and ia not entitled to have it discharged out of the personal estate of A., unless A. has by his will shown a contrary intention : (17 & 18 Vict. c. 113, et sup.) But it is provided that this act is not to affect any rights claimed under any deed, will, or other document made before the 1st Jan. 1855 : (see Will. Real Pro. 362, 4th edit) Q. — If mortgage money be not paid at the appointed _Jims, what are the remedies to which a mortgagee may resort ? A. — He may either bring his action of ejectment, or file his bill of foreclosure. And, if it is desired, he may proceed on all his remedies at the same time, both at law and in equity ; he may at the same moment bring his ejectment, file his bill of foreclosure, and proceed on his bond arid other collateral securities : (see hereon ante, p. 159.) In addition to (a) Also asked in this form: — Q. — As between the executor and devisee of a testator, who ij liable for a mortgage on the land devised made subsequently to the will? How has the has been lately altered ? Digitized by Microsoft® CONVgyAKQING.' these remedies, there is now usually provided a more simple and less. expensive mode of proceeding, by giving to the mortgagee, by themort-' gage deed, a power to sell the premises on default in payment f^(Will. Eeal Pro. 355, 4th edit.i Coote on Mortgages, 124, 497, 3rd edit.; Smith's Man. Eq. Jur. 245, 3rd edit.") ^ f<^io a^^ *^^*^(^ <4 <^^ -«6*>*^ -U<^/e*ty^zct^ a^ ''■^^'^^^^'^^^a^S'^-V H- — Acting as solicitor for a person about to sell an estate, would you take any, and what, preliminary measures regarding the title or con- ditions of sale ? A. — Before proper conditions of sale can be framed, firstly, t he value of property must be ascertained ; secondly, the title to the property / must be investigated ; thirdly, the advertisements must be prepared : (see 1 Hughes' Pract. Sales Real Pro. 3, 2nd edit.) Q- — On a sale of real estate by auction, what conditions as to title, title deeds, and otherwise, ought to be inserted to anticipate difficulties on the part of an unwilling purchaser ? A. — Conditions that vendor shall not be bound to produce any deeds not in his possession; that in case the purchaser or his solicitor shall object to the title, the vendor shall be at liberty to vacate the sale by notice to the purchaser, and the purchaser to be repaid his deposit money, but without interest, &c.; unless the purchaser shall, within [fourteen] days after the receipt of such notice, agree to accept the title uncon- ditionally (or the vendor may insert a condition that the purchaser shall ta,ke the property with such title as he actually possesses); that the pur- chaser shall bear the expense of the conveyance, and of attested copies, &c. ; that any misdescription shall not annul the sale, but to be made good by compensation : (see 1 Hughes' Pract. Sales Real Pro. 10, et seq. 2nd edit.) Q. — Can the printed particulars and conditions of sale of an estate by auction be varied by parol at the sale ? A. — They cannot be altered by parol, either by adding to, subtracting from, or coi^radicting anything contained in them : (see 1 Hughes' Pract. Sales Real Pro. 11, 2nd edit.; Sug. V. & P. Cone. View, 12, 113.) Q. — On the sale of an estate by auction, is it necessary to have an agreement in writing for the sale and purchase ? A. — To complete the purchase an agreement should be signed by the parties or their agents, because sales by auction of estates are within the Statute of Frauds, and, consequently, the contract could not be enforced against either of the parties who had not signed an agreement. The auctioneer may, however, bind the seller or purchaser by signing for him, being in law his agent for that purpose : (Sug. V. & P. Cone. View, 28.) Q. — What matters are important to be attended to and provided for in framing a contract for the sale and purchase of a freehold estate ? A. — The same particulars as detailed in framing conditions ; of course varied to meet the different mode of sale. The terms of the con- tract should be clearly and explicitly set forth ; every care should be taken to avoid equivocal expressions, and nothing which it is intended to carry into effect should be left resting merely on parol, as extrinsic evidence is inadmissible in a court of law to vary the terms of a written Digitized by Mcrosoft® 170 EXAMINATION QUESTIONS AND ANSWERS. contract, and it is only under peculiar circumstances that such evidence will be received in a court of equity : (see supra.) Q. — The like question as to leasehold estate. A.— In addition to the usual stipulations, if the vendor is unable to procure his lessor's title, he ought by his contract to provide against the purchaser requiring it, and that the vendor should not be bound to give any earlier title than the original lease ; it may also in many instances be proper to state the terms on which the premises are held: (see 1 Hughes Pract. Sales Real Pro. 44, 45, 2nd edit.; Sug. V.&P. Cone. View, 25, 267 ; Prideaux's Conv. 3.) {a) Q. — Can a bidder at a public auction retract his bidding, and, if so^ when ? 1 . 11 A. — A bidding may be retracted at any time before the lot is actually knocked down ; it should be made in a tone sufficiently loud for the auctioneer to hear : (see 1 Hughes Pract. Sales Real Pro. 52, 2nd edit. ; Lord St. Leonards' Handy Book, 35, 7th edit.) VENDOR AND PURCHASER. Question. — "What are the ordinary modes or titles by which real estate is acquired ? Answer. — They are by descent, devise, purchase (in its ordinary sense), escheat, curtesy, dower and elegit ; also by bankruptcy and ins olvency, Q. — What is the distinction between a title by purchase and a title by descent ? A. — A person is said to acquire his estate by descent when it comes to him by operation of law, as where it descends to the eldest son on the death of the father. If it is acquired in any other manner it is said to be acquired by purchase, as where it is devised by will: (Witt, Real Pro. 78, 4th edit.) Q. — What is the difference of construction between a deed and a will; and why is the difference made ? A. — The law has always allowed a more liberal construction in favour of a will than of a deed ; because, in the exposition of the former, the law has rather inclined to regard the intention of the testator than the precise legal import of the terms he has employed to express it ; wills being so often made when a testator is suffering from sickness, and not unfrequently when he is actually on his death-bed, and unable to obtain that professional assistance of which a party to a deed may generally avail himself. And where two clauses are inconsistent, in a will the latter prevails, in a deed the former : (see 1 Hughes' Pract. Sales Real Pro. 303, 2nd edit.) (a) The answer to the following question may be easily gathered from the foregoing:— On a sale of leasehold estate what conditions ought to be inserted with regard to the title of "lessor and lessee, or either, or both? Digitized by Microsoft® CONVEYANCING. 171 Q. — Is anything beyond probate of the will necessary in order to per- fect the title of a person to whom a leasehold estate (for years) has been given by will ? A.. — The assent of the executor is necessary to perfect the title : (see Hughes' Pract. Sales Real Pro. 267, 2nd edit.) Q. — Is the tenant for life, or the remainderman, entitled to the cus- tody of the title deeds ? A. — The tenant for life is entitled to the custody of the title deeds (see "Will. Real Pro. 376, 4th edit.) ; at all events when he is clothed with the legal estate ; but the remainderman may, under certain circum- stances, apply to have them delivered up : (see Smith's Man. Eq. Jur. 319, 3rd edit.) Q. — If A. claims to be heir-at-law, as eldest son of B., what evidence is necessary to prove the heirship ? A. — Evidence is necessary of the marriage of B., of the baptism or birth, and time or order of birth of A., and of the death or burial of B. The parochial register would be evidence both of the time and fact of the marriage of B., and of his burial. The parochial register of baptisms would be evidence of the birth of A., but not of the time or order of birth, as to which a certified extract from the general register established under 6 & 7 Will. 4, c. 86, and 1 Vict. c. 22, should be obtained. This evidence might be supported by statutory declarations, &c. :' (see Dart's V. & P. 196 to 200, 2nd edit. ; Sag. V. & P. 309.) Q. — What was formerly considered a sufficient title to an estate in fee simple ? A. — Sixty years; and this is still necessary, notwithstanding the 3 & 4 Will. 4, c. 27 ; for though the time within which suits may be instituted is thereby shortened, still another ground of the rule, viz., the duration of human life, is not affected by it ; and the objection to titles on the ground that the conveying parties might have been mere tenants for life, &c. still exists ; whatever, therefore, might have been the intention of the Legislature in passing this Statute of Limitations, it hasi not led to the result of shcjrtening the period from which titles were to be deduced, and a sixty years' title is still necessary : ( Cooper v. Emery, 1 Phill. 388 ; Sug. V. & P. Cone. View, 265; Will. Real Pro. 370, 4th edit.) Q. — Has any and what change taken place, and by what act or acts, to simplify and shorten titles with reference to length of possession ? A. — No. (See Cooper v. Emery, 1 Phill. 388, et supra.) Q. — For how many years has a purchaser of a fee-simple estate a right to require the vendor to show a title ? And on what principle is the vendor bound to show a title for the time to be stated in your answer to the first part of this interrogatory ? A. — In framing an abstract the title should be carried back to some document not less than sixty years old ; the duration of human life being considered the origin of that time : (see supra.) Q. — Can an agent authorised by parol to purchase an estate at a cer- tain price, bind his principal by his written agreement to buy it for a larger sum ; and if not, has the seller any, and what, remedy against the agent ? z2 Digitized by Microsoft® 172 EXAMINATION QUESTIONS AND ANSWERS. A. — An agent cannot bind his principal if he exceeds his authority; he must act within the scope of his authority, and no further ; if he bids more for an estate than he is authorised, he will himself become liable to the seller : (see Lord St. Leonards' Handy Book, 24, 25, 7th edit. ; Smith's Man. Eq. Jur. 3rd edit. ; Sug. V. & P. Cone. View, 82.) Q. — Is a delay occasioned by defects of title which are ultimately re- moved, a bar to a decree for specific performance at the suit of the vendor ; and, if not, what steps should the purchaser take to relieve himself from the contract, if the delay be injurious to him ? A. — If time be not originally of the essence of the contract, a delay on account of a defect of title which is ultimately removed will be no bar to a specific performance. iBut if there is unreasonable delay, the purchaser should, in order to free himself from the contract, give the vendor formal notice that the title is defective, and decline to accept it if the defects are not removed within a specified time, and that if this be not done he will consider the contract rescinded ; and if the vendor does not, in accordance with this notice, remove the defects from the title, the pur- chaser may plead it in answer to a suit for specific performance : (see Story's Eq. Jur. §§ 747, &c., 776, &c. ; Smith's Man. Eq. Jur. 187, 3rd edit.) Q. — Can a contract to purchase an estate at a price to be fixed by two valuers (one fo be named by each party), or an umpire to be named by the valuers if they differ in opinion, be enforced against a party who refuses to appoint, and, if so, how ? A. — "Where parties agree upon a specific valuation, as by two persons, one chosen by each, unless the price be fixed as. directed, the court cannot enforce performance of the agreement ; and neither of the parties to such an agreement can be compelled to nominate an arbitrator or valuer under the agreement : (Sug. V. & P. Cone. View, 203, 204 ; Story's Eq. Jur. § 1417 ; Lord St. Leonards' Handy Book, 47, 7th edit.) Q. — On a sale of lands, what expenses are usually borne by the vendor, and what by the purchaser ? A. — In the absence of any stipulation to the contrary, the vendor will be bound to defray all the expenses incurred in making out and de- ducing his title to the property ; and also of obtaining the concurrence of the necessary parties, and all the incidental costs attendant upon the execution of the purchase deed-? but the expense of the preparation of the purchase deed itself, as also of tiie stamp and parchment, must be paid by the purchaser : (see 2 Hughes' Pract. Sales Real Pro. 228, 2nd edit. ; Sug. V. & P. Cone. View, 172, 318, 320.) Q. — Is it customary for the vendor or purchaser to bear the expense of preparing the abstract of the title to the estate to be conveyed ; and which, according to custom, bears the expense of the conveyance ? A. — The vendor is bound, at his own expense, to supply a purchaser with an abstract of all the title deeds and documents necessary to support the title. But the purchaser must bear the expense of the preparation of the purchase deed itself, as also of the stamps and parchment ; (see 2 Hughes, supra.; Sug. V. & P. supra.) Q- — At whose expense is the obtaining the execution of the convey- ance to the purchaser ? A. — ^1?he expense attending the execution is borne by the vendor, the deed itself by the purchaser : (see supra.) Digitized by Microsoft® CONVKYANCING. 173 Q. — On payment of purchase money to trustees, what is to be attended to on the part of the purchaser ? Is the purchaser of an estate sold, sub- ject to a devise for payment of debts generally, bound to see to the application of the purchase money ? A. — Where property was devised upon trust for payment of debts and legacies generally, the purchaser was not bound to see to the application of the purchase money on payment to trustees : but if such debts were speciried and scheduled, or even specifically mentioned, the purchaser would have been responsible for the application of the purchase money : unless the will contained an express clause exonerating purchasers from all responsibility with respect to the application of the purchase money : (seeSug.V. &P. Conc.View,517to523; Story'sEq. Jur. § \i26,etseq). But now the 22 & 23 Vict, c, 35, enacts, that " the bona fide payment _ to, and receipt of, any person to whom any purchase or mortgage money shall be payable upon any express or implied trust, shall eifectually dis- charge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating this trust or security" : (sect. 23.) Q. — When vrill a purchaser be secure in paying the purchase money to a person in trade, and subject to the Bankrupt Law ? A. — All payments really and bona fide made to any bankrupt before the date of the fiat or the filing of a petition are to be deemed valid, not- withstanding any prior act of bankruptcy by such bankrupt committed, providing the person so paying to such bankrupt had not at the time of such payment notice of any prior act of bankruptcy by him committed : (12 & 13 Vict. c. 106, s. 133 ; Sug. V. & P. Cone. View, 121, 574.) Q. — How is a contract for sale affected by the bankruptcy of the vendor or purchaser ? State the law in either case. A. — By the 12 & 13 Vict. c. 106, s. 133, it is enacted that all con- tracts, dealings and transactions by and with any bankrupt, really and bona fide made and entered into before the filing of the petition, shall be deemed to be valid, notwithstanding any pfibr act of" baiikruptcy by such bankrupt committed, provided the person dealing with the bankrupt had not at the time notice of the bankruptcy. Therefore a contract entered into before bankruptcy, which is bona fide, is unafiected by the subsequent bankruptcy of the vendor. And by sect. 146 it is provided, that where a person enters into an agreement to purchase land and afterwards becomes bankrupt, the_assignees may_be required tojelect whether they will abideby theagreen3ent_£r^£t,_ and appficafloh may "Be made to the court to orderlEemto^fiver up possession of the agreement and premises to the vendor, &c. : (12 & 13 Vict. c. 106, s. 146; Sug. V. 8f P. Cone. View, 121.) Q. — ^When does a bankrupt's real estate vest in his assignees ? A. — ^The real estate of the bankrupt (except copyholds), as well as the personal, vests in the assignees, as a general principle, from the act oj ' bankruptcy. The assignees have, it is true, no title till their appointment ; but when appointed, their title extends backwards, and relates to the act of bankruptcy : (see Smith's Merc. Law, tit. "Bankruptcy," p. 652, 5th edit.) Q. — WhsiJ is the effect of bankruptcy on a general power to appoint real estate ? Digitized by Microsoft® 174 EXAMINATION QUESTIONS AND ANSWERS. A. — By the 12 & 13 Vict. c. 106, s. 147, it is provided, that all powers vested in any bankrupt which he might legally execute for his benefit (except the right of nomination to any vacant ecclesiastical benefice) may be executed by the assignees for the benefit of the creditors in the same manner as the bankrupt, might have executed the same. And by sect. 148, the bankrupt, if he does not try the validity of the adjudication, or if the validity of the adjudication is established by a verdict at law, may be ordered to join in conveyances ; and if he does not do so within the time stated in the order, he is estopped from objecting to the validity of such conveyance ; and all interest which the bankrupt had therein is as effectually barred by such order as if such conveyance had been executed by him. Before the 6 Geo. 4, the bankrupt was not compellable to execute an absolute power of appointment in favour of his assignees : ( Thorpe v. Goodall, 17 Ves. 270 ; see also Hughes' Pract. Conv. 201, 202 ; Will. Eeal Pro. 245, 4th edit.) Q. — How does notice of a trust affect a purchaser for valuable con- sideration ? A. — If a purchaser purchase with a notice of the trust he will be bound by it : (see Story's Eq. Jur. § 395.) Unless it be a voluntary trust: (see ante, p. 149.) Q. — Who is capable of conveying real estate ; and who, in the techni- cal sense of the term, of purchasing ? \ A. — All persons of full agej^sound mind, not being aliens, and not attainted of treason or murder (and even these latter, except as against the King or Lord) may alien their lands. So may a feme covert, if her husband join with her, or without if dispensed with ; so lay corporations aggregate (except municipal corporations) may alien, but ecclesiastical corporations, whether aggregate or sole, have only a limited power of disposition : (1 Steph. Com. 447, et seq. 3rd edit. ; Burton's Com p. pi. 188, etseq. ; 1 Hughes' Pract. Sales Real Pro. 157, et seq. 2nd edit.) All persons, and even corporations, may be purchasers of lands, but some of these are partially, and others wholly, incapable of holding the same for their own benefit. Q. — What is a deed ; and what are its requisites ? A. — A deed is a written instrument under seal. The requisites are, firstly, that there be persons able to contract and be contracted with ; secondly, that the deed be written or printed on paper or parchment ; thirdly, that the matter be legally and orderly set forth ; fourthly, that the party whose deed it is seal it, and in most cases sign it also; fifthly, that the deed be delivered by the party or his attorney ; and lastly, though not absolutely necessary except where the deed is executed pursuant to a power, that the deed be executed in the presence of witnesses, who should attest the execution ; reading is also a requisite, if required : (2 Bla. Com. chap. 20 ; 1 Steph. Com. chap. 16, 3rd edit.) Q. — Can a deed be altered to any and what extent after it has been executed by all or any of the parties ? A. — ^A deed ought not to be altered at all after execution. An altera- tion in any material part is sufficient to avoid the deed : (see 1 Steph. Com. 478, 3rd edit.) Q. — How may a deed be avoided ? A. — A deed may be avoided by being altered in a material part after execution, without being re-executed : (see 1 Steph. Com. ubisup.' Digitized by Microsoft® CONVEYANCING. 173 Q. — State concisely the several parts of the ordinary form of a con- veyance of freeholds. A. — The technical parts of a deed of conveyance from a vendor to a purchaser are usually the following : — I. The parties. 2. The recitals. 3. The testatum. 4. The parcels and general words. 5. The habendum. 6. The covenants, which are, that the vendor has good right to convey, for quiet enjoyment, freedom from incumbrances, and for further assur- ance. The deed must also be signed, sealed and delivered, and the attes- tations and receipt indorsed ; (Hughes' Pract. Conv. 196, et seq.) Q. — What is a feoffment, and is there anything, and if so, what, essential to perfect it ? _ A. — ^A feoffment is the gift or grant of honours, castles, manors, mes- svages, lands, houses, or other corporeal hereditaments, to another in fee simple. It is properly a conveyance in fee, and yet it is improperly called a feoffment where an estate of freehold only passes : (Co. Litt. 9.) To perfect it, it must be accompanied by a formal delivery-up of pos- session, called livery of seisin: (Co. Litt. 48a; Will. Eeal Pro. 117, et seq., 4th edit. ; 1 Steph. Com. 467, et seq.) Q. — What are the different kinds of livery of seisin ? A. — ^They are of two kinds — a livery in deed, and a livery in law. A lively in deed is where the feoffor takes the ring of the door, or a t urf of the land, and delivers the same upon the land to the feoffee in name of seisin of the land. But a livery may be made by words without any act or ceremony at all, as the feoffor being at the house door or within the house says, " I deliver to you seisin and possession of this house, in the name of seisin and possession of all the lands and tenements contained in this deed." Livery in law is where the feoffor says to the feoffee, being within view of the house or land, " I give you yonder land to you and your heirs, go enter into the same and take possession thereof accord- ingly :" (Co. Litt. 48 a ; WiU. Real Pro. ubi sup. ; 1 Steph. Com. ibbi sup.) Q. — ^Why is a feofiment no longer a necessary form of assurance ? A. — Because after the passing of the Statute of Uses the necessity of formal delivery of possession was dispensed with by creating a term of years by way of bargain and sale under the Statute of Uses, which that statute executed or turned into actual possession in the lessee without entry, who thereupon became capable of accepting a release of the freehold and reversion ; the two instruments forming, in point of fact, but one assurance, and was called a lease and release. This mode of con- veyance continued in use down to the year 1841, when an act was passed for rendering a release as effectual for the conveyance of freehold estates as a lease and release by the same parties. And now, by the 8 & 9 Vict. c. 106, a deed of grant is alone sufficient for the conveyance of all corporeal hereditaments : (see 2 Hughes' Pract. Sales Eeal Pro. 155, 156, 2nd edit. ; Will. Real Pro. 146, et seq. 4th- edit. ; Steph. Com. chap. 17, vol. 1.) Q. — ^In what case prior to the act 8 & 9 Vict. c. 106 {An Act to amend the Law of Real Property) was a feoffment a necessary fprm of conveyance ? A. — If you wished to acquire a tortious fee, a feoffment was the necessary assurance, but since the above act a feoffment has no longer any tortious operation: (2 Hughes' Pract. Conv. 187 ; Will. Real Pro. 121, 4th edit. ; 1 Steph. Com.. 491, 3rd edit.) Digitized by Microsoft® 176 EXAMINATION QBESTIONS AND ANSWERS. Q. — What conveyances take effect by force of the Statute of Uses, and what by the Common Law ? ^.— Those which take effect by force of the Statute of Uses are the following : — Bargain and sale ; Covenant to stand seised ; Appointment in exercise of a power concerning uses. Those which do so by the Common Law are these :— Feoffment ; Grant ; Gift ; Lease ; Exchange ; Partition ; Release ; Confirmation ; Surrender; Assignment ; Underlease, Defeasance. Besides these modes of conveyance, there are some which operate partly by virtue of the Statute of Uses, and partly by virtue of the Common Law ; such are these : — Feoffment to uses ; Grant to uses ; Statutory release: (see Steph. Com. vol. 1.) Q. — State the common form of assurance before the Statute of Uses ? A. — Before the Statute of Uses a feoffment with livery of seisin was the common form of assurance : (see Will. Real Fro. 122, 128, 4th edit.) Q. — What is now the simple mode of conveyance for passing freehold estates of inheritance upon a sale ? j4. — By the 8 & 9 Vict. c. 106, all corporeal tenements and heredita- ments were declared, so_ Ar as regarded the conveyance of the im mediate freehold thereof, to be deemed to lie in grant as well as in livery (sect. 2), so that lands of inheritance may now be conveyed by deed of grant only : (see Will. Real Pro. 147, et seq. 4th edit.) 'feS.Q. — How must freehold property be conveyed by a corporation ? "^A. — By deed under their corporate seal?'- Formerly corporations con- -veyed by feoffment, or by lease and release, with an actual entry by -the lessee previous' to the release (2 Hughes' Pract. Sales Real Pro. ■^555, 2nd edit.) ; but now, under the 8 & 9 Vict. c. 106, a common law gi3gt^^gonjv|lghjlSga ^ayJl£J!ngrafted jT^a yJie^n^ ' Q. — Is there any custom which enables an infant to convey, by any and what form of assurance ? A. — By the custom of gavelkind, every tenant of an estate of free- hold (except of course an estate tail) is able, at the early age of fifteen years, to dispose of his estate by feoffment : (Will. Real Pro. 106, 4th edit. ; 8 & 9 Vict. c. 106, s. 3.) Q. — A. is to convey an estate to B. for life ; by what conveyance may this be effected ? A. — It may be conveyed by deed of grant : (8 & 9 Vict. c. 106, s. 2.) Q. — In examining an abstract with the title deeds on behalf of a purchaser, what would be the consequence to the solicitor personally, of his overlooking notice of any inc umbrance^ contained in an y instrume nt abjtractedjind produced jpr examination, whether such notice were con- tained in the abstract or otherwise ? A. — If the purchaser sustains any loss or injury in consequence of his solicitor's negligence, the latter will become personally liable to make good the same, and the purchaser will be entitled to maintain an action against him and recover damages accordingly : (see Arch N P 3 40 402 ; Sug. V. 85 P. Cone. View, 405.) • • • > . Q. — In preparing an abstract of title on a sale, is the vendor's solicitor personally liable for omitting to state all the incumbrances within his knowledge ? Digitized by Microsoft® CONVEYANCING. 177 A. — If the vendor's solicitor wilfully conceals incumbrances or denies that there are any, he renders himself personally liable to the purchaser : (Hughes' Pract. Conv. 161.) Q. — On an exchange of land, what would be the consequence of ouster b of one of the parties from defect of title ? A. — Formerly on an exchange of land there was an implied warranty which engendered the right ,of entry in case of eviction ; but since the 8 & 9 Vict, c 106, s. 3, the only remedy in such case is on the cove- nants : (see 1 Hughes' Pract. Sales Real Pro. 247, 2nd edit. ; Will. Eeal Pro. 367, 4th edit.) Q. — ^What is the technical" distinction between absolute covenants for title and qualified covenants ? A. — Absolute covenants extend to the acts of the whole world; quali- fied covenants are restricted to the acts of the covenantor or of himself and those under whom he claims by descent, or wiU : (see Will. Eeal Pro. 368, 398, 4th edit.) Q. — What are the usual covenants for title entered into by a vendor with a purchaser on the sale of a freehold estate ? A. — Generally speaking, a vendor of real estate can only be required to enter into qualified covenants for title, which run as follows : that he is seised in fee, has good right to convey, for quiet enjoyment, freedom from incumbrances, and for further assurance. The covenants, that the vendor is lawfully seised, and that he has good right to convey, are considered as synonymous ; so much so in fact, that the former is now more frequently omitted than inserted in conveyances : (see 2 Hughes' Pract. Sales, 202 to 204 ; 2nd edit. ; Sug. V. & P. Cone. View, 430, 459 ; Will. Real Pro. 368, 398, 4th edit.) Q. — The like covenants from a vendor to a purchaser, and vice versa, of leasehold estate ? A. — The covenants in this case usually run thus, viz. : that the lease is valid ; that all outgoings, such as rent and taxes, have been paid, and all covenants and conditions performed ; that the vendor has good right to assign for quiet enjoyment, freedom from incumbrances, and for further assurance. The covenants on the part of the purchaser are, to pay rent, and perform the covenants reserved and contained in the lease, and to save the assignor harmless therefrom : (see supra ; Prideaux's Conv. 98, &c. 2nd edit.) Q. — ^Title deeds required to be examined are found not to be in the possession of the vendor, but in the hands of a third person in the country ; what is the course to be pursued for the examination of the deeds, and at whose expense ? A. — The vendor is bound to produce all documents set out in the abstract, although they are not in his possession, nor the purchaser enti- tled to have them delivered over to him, if the documents are of such a nature as are usually handed over to a purchaser ; records, such as fines and recoveries, are not included in the above rule, for office extracts and copies are all a purchaser can call for : (Hughes' Pract. Conv. 154.) The expense of the production of all deeds not in the vendor's possession,! as also of journeys and all other incidental costs necessary for comparing the documents of title with the abstract must, in the absence of stipula- tion to the contrary, be borne by the vendor : {lb. ; Si5g. V. & P. Digitized by Microsoft® " ' 178 EXAMINATION QUESTIONS AND ANSWERS. Cone. View, 317.) But the vendor may produce the deeds for examina- tion, either at his own known residence, or upon or near the estate, or in London (for the examination may then be effected through the London agent) ; and the purchaser in such case bears the expense of the exa- mination, &c. : (Dart's V. & P. 225, 2nd edit. ; Sug. V. & P. Cone. View, 318.) Q. — At what place must the title deeds be produced for examination ; and when the vendor and his solicitor reside at a distance from the premises, who must bear the extra expense of examination ? A. — The vendor may (as before seen) produce the deeds for examination either at his own known residence, or upon or near the estate, or in London ; and the purchaser in such cases pays for the necessary journeys of his solicitor : (Dart's V. & P. 225, 2nd edit. ; Sug. V. & P. Cone. View, 317.) The extra expense of the examination of all deeds not so pro- duced, as also of all journeys and all other incidental expenses, unless otherwise stipulated for in the conditions of sale, must be borne by the vendor : (see Hughes' Pract. Conv. 154 ; Dart's V. & P. 225, 2nd edit, et sup.) Q. — State the practice in case a vendor is entitled to retain the title deeds, as to what the purchaser may require, and at whose expense ? j' A. — If the vendor retains the title deeds the practice is, that the pur- J'cliaser will be entitled to a covenant from him for their production, and ■also to have attested copies, extracts o r a bstracts o f them. The expense ,must be borne by the vendor, unless otherwise stipulated for : (see 2 (Hughes' Pract. Sales Real Pro. 207, 229, 2nd edit., where a form of covenant is given.) ' Q. — Who should covenant for the production of title deeds which cannot be delivered to a purchaser ? A. — The vendor must covenant for their production. If, however, the property be sold in lots, the purchaser of the largest lot has the title deeds, and covenants for the production : (Will. Real Pro. 378, 4th edit.) Q. — ^Will a covenant for production of title deeds in any and what case run with the land ? A. — A covenant for production of title deeds is a covenant running with the land in favour of a purchaser : (see Will. Real Pro. 378, 4th edit. ; Sug. V. & P. Cone. View, 336.) Q. — If the purchaser of one lot of an estate give a deed of covenant for production of title deeds to the purchaser of another lot, and after- wards sell and convey the property he bought, and part with the deeds, will the covenant run with the land, and will his personal liability under the deed of covenant be discharged, or how is the discharge of it to be provided for, and the production of the deeds secured to the cove- nantor ? A. — A covenant for the production of deeds runs with the land if in favour of a purchaser ; therefore, where a purchaser of one lot enters into a covenant for production of title deeds to the purchaser of another lot, and afterwards sells the property he bought, and- parts with the deeds, he is still liable on his covenant. The proper mode is to insert a clause in the deed providing that if he should sell the property bought, and part witb the deeds, he will cause the purchaser to enter into the like covenant for the production before doing so : (see Will. sup. \ Sug. ""^•^ Digitized by Microsoft® CONVEYANCING. 179 Q. — What are the duties of the solicitor in comparing an abstract of title with the deeds, &c. ? A. — The duties of the solicitor in comparing the abstract with the deeds are to seelthat the title is carried back sufficiently far 2. to discover the legal operation of the various instruments, as well as the capacity of the several parties ^ that there is a clear deduction both of the legal and equitable estate ^that all particular estates are either determined or are capable of being conveyed to the purchaser or otherwise disposed of,J~to ascertain if there are any charges or incumbrances affecting the property, and if so, whether they are of such a nature that the vendor is unable to discharge them, or of such a kind that he can get in, and thus pass an unincumbered estate to the purchaser/^ it must also be seen that the parcels comprised in each instrument are the same as those comprised in the former documents^ it should also be ascertained that the deeds are properly stamped, &c. : (see 1 Hughes' Pract. Conv. 127, 128, et seq.) Q. — If the abstract show a good title on' the face of it, but the pur- chaser's solicitor on comparing it with the title deeds discovers an incurable defect, is the purchaser entitled to recover from the vendor the expense of comparing the abstract with the deeds ; and would he be so if the defect appeared on the face of the abstract ? A. — K the abstract shows a good title on the face of it, but the pur- chaser's solicitor on comparing it with the title deeds, discovers an incurable defect, the purchaser will be entitled to recover from the vendor the expense of comparing the abstract with the deeds. If the abstract be defective on the face of it, the purchaser's solicitor will be entitled to the costs of perusal, &c. ; unless in either case the contract is by parol : (see Sug. V. & P. Cone. View, 262 ; Hughes' Pract. Conv. 172, 173.) Q. — Upon a sale of part of an estate without any stipulation as to deeds, who is entitled to the custody of them; and if the purchaser, is he bound to furnish the seller (who retains the other part of the estate) with attested copies, and at whose expense ? A. — On the sale of part of an estate the vendor generally retains the deeds and gives the purchaser attested or other copies, &c. of them at his own expense, unless it be stipulated to the contrary ; he also enters into a covenant for production of the original deeds when required. If the estate be sold in lots, then the purchaser of the largest lot takes the deeds and covenants for production-; and the vendor furnishes the other purchasers with attested or other copies, extracts or abstracts of them, at his own expense, unless there be a stipulation to the contrary : (Hughes' Pract. Conv. 45, 233 ; Will. Real Pro. 378 ; Sug. V. & P. Cone. View, 326,, et seq.) Q. — Where a purchaser has not obtained the title deeds, or a covenant for the production of thejp, can he require such a covenant to be exe- cuted to him under the usual covenant for further assurance ? A. — ^If a purchaser has not obtained the title deeds, or a covenant for the production of them, it is a doubtful question whether a covenant for further assurance will entitle a purchaser to call for a covenant for the production of tille deeds. In Fain v. Ayres (2 Sim. & St. 533) the question arose, but was not decided ; still the prevailing opinion of the profession seems to be that a purchaser has no such right, the "covenant for further assurance being restricted to mean the assurance by way of conveyance, and not tOi^amm'ebeud furdiec ok^ations to be imposed on 180 KJIAMINATION QUESTIONa AND ANSWERS. a vendor by way of covenant : (Hughes' Pract. Conv. 233 ; Sug. V. & P. Cone. "View, 326.) Q. — ^If a person contract for the sale of his estate, and afterwards become a lunatic, who can convey the estate to the purchaser ; and what course should be pursued on such an occasion ? A. — Application should be made to the Lord Chancellor for a vesting order, which has the same effect as if the party had been sane, and had duly executed a conveyance of the lands in the same manner and for the same estate. A person may be appointed to convey if thought necessaiy : (13 & 14 Vict. c. 60 ; Sug. V. & P. Cone. View, 144, 145, 148.) Q. — If a man seised in fee of land contract with another for the sale of it, and both parties die before the sale is completed, does the contract continue in force ; and what is the consequence as regards the title to the land, and as regards the title to the purchase money ? A. — The death of the vendor or vendee before the conveyance or surrender, or even before the time agreed upon for completing the con- tract, is in equity immaterial. If the vendor die before payment of the purchase money, it will go to his executors and form part of his assets : (Sug. V. & P. Cone. View, 122.) If the purchaser should die, his heir- at-law or devisee may come into a court of equity and insist on a specific performance of the contract ; and, unless some other circumstance affect the case, he may require the purchase money to be paid out of the per- sonal estate of the purchaser, in the hands of his personal representa- tive :' {Id. 126 to 133 ; Story's Eq. Jur. § 790.) Q. — Is the devisee of an estate contracted to be sold, but not conveyed, to the testator, entitled to have a conveyance to him from the vendor ; and by whom, and from what fund, is the purchase money to be paid? A. — The devisee will be entitled to have a conveyance of the estate to him, and the purchase money paid out of the personal estate of the testator : (Story's Eq. Jur. § 788, etseq.; Sug. V. & P. Cone. View, 125.) Q- — Would a contract for the purchase of land be impeachable or not by a vendor, on the ground of considerable inadequacy of consideration, but not of fraud ? A. — Mere inadequacy of consideration, or any other inequality in the bargain, does not constitute by itself a ground for avoiding the contract, except in the case of the expectant heirs or remaindermen : (Story's Eq. Jur. §§ 244, 246 ; Smith's Man. Eq. 3rd edit.) Q. — Is a purchaser bound to take a conveyance executed by the attorney for the vendor, under a power of attorney, with any and what form of condition? A. — ^A purchaser is not bound to take a conveyance executed under a power of attorney unless an actual necessity appears for it. because the vendor may be dead at the time the power is exercised, and in that case the execution would be void, as a power of this nature expires by the death of the principal. If a purchaser does take a conveyance so executed, the attorney should al so execute _ a declaration of trust , that he will stand posseiseaoTtEe^purchase mon^ymTrusTfor the purchaser, nntil i t either appear by satisfactory evidence that the vendor was alive at the time of the execution of the deed, or, jfjhe jh ajl be degy d, until the estate is duly conveyed to the purchaser : (Sug. V. & P. Cone. View, 420, 42 1 .) Digitized by Microsoft® OONVETANCINQ. 181 Q. — What searches should be made before completing a purchase ; and what would be the consequence of not making such search ? A. — Search should be made in the Common Pleas Registry Office for judgments, annuities and Us pendens for a period of five years next pre- ceding the completion ; also for Crown debts and accountantship to the Crown, which search may (22 & 23 Vict. c. 35, s . 1 3) be confined to the last preceding five years. Search is also sometimes made for bankruptcy and insolvency. And where the property lies in a district subject to the Registry Acts, viz., Middlesex, Yorkshire, Kingston-upon-Hull, and the Bedford Level, searches should be made in the local registers. If the attorney neglect to make the proper searches, and the purchaser sustain any loss, the attorney will become personally liable to make good the same : (Wm. Real Pro. 71, &c. 4th edit. ; Hughes' Prac. Conv. 160 to 168 ; Sug. V. & P. Cone. View, 394, et seq.) Q. — What should be done to postpone searches for incumbrances until immediately before the completion of the purchase ? A. — The search may be delayed by asking the vendor's solicitor if there are any incumbrances, and if he replies that there are not, search may be postponed until immediately before the execution of the conveyance: (1 Hughes' Prac. Conv. 161, 162 ; Sug. V. &P. 6, 7, 405.) Q. — What search should be made for judgments affecting real estate ; and how far back should such search be made? A. — Search should be made in the Common Pleas Registry Office for judgments ; this search need only be made for the last preceding five years : (see references, supra.) Q. — Are copyhold and leasehold estates, or either of them, in the hands of a purchaser, affected by judgments against the vendor, entered in the Common Pleas Office at the date of the sale; and under what authority ? A. — Both copyhold and leasehold estates in the hands of a purchaser a^Dound by judgments against the vendor, if duly registered, by the statute I & 2 Vict. c. 110; but if the purchaser is without notice of the judgment, he will not be bound further than he would under the old law t^ Q. — If the grantee of an annuity employ the grantor's attorney to/ prepare the deeds, is such attorney bound to disclose any circumstance ^ that may affect the security ? A. — It seems not ; if the grantee employ the grantor's attorney to prepare the deeds, the mere preparation of the deeds does not place him in a confidential relation towards the grantee : (Sug. V. & P. Cone. View, 6.) Q. — Ought a purchaser of an estate to ascertain the terms of the tenancy of the occupier of the estate, and why ? A. — The purchaser of an estate should, whenever the property is in the occupation of a tenant, inquire into the nature of his tenancy ; for if a purchaser should neglect to dc* this, he will be considered to have implied notice of that title ; notice of a tenancy being considered as implied notice of the terms upon which the premises are holden : ( I Hughes' Pract. Conv. 157.) Q. — If a contract of sale describe property as leasehold, can the pur- chaser successfully reapt a.biU for specific nerformance on the ground ^Digitized by Mfcrosofm ^ 182 EXAMINATION QUESTIONS ANP ANSWERS, that after the contract he discovered that the lease contained an unusual covenant ? A. — The purchaser cannot resist a specific performance on the ground that after the contract he discovered that the lease contained an unusual covenant ; for notice of a lease is notice of the contents : (see Story s Eq. Jur. § 400 ; Sug. V. & P. Cone. View, 611; Hughes' Pract. Con v. 517.) Q. — State shortly the duties of a solicitor in conducting the purchase of real estate. A. — ^The purchaser's solicitor should look carefully into the coiiditions (supposing the sale to be by auction) to see that they do not press too heavily on a purchaser ; it will also be his duty to see that there is a good title to the property by examining title deeds, with abstract, &c., and make the necessary searches for incumbrances ; he will also have to prepare the purchase deed and tender it for execution. He should not only secure to his client such a title as will protect him from eviction, but such a title as a subsequent purchaser or mortgagee may be compelled to accept : (1 Hughes' Pract. Sales Eeal Pro. ch. 4 ; 2 id, ch. 10, 2nd edit., and see fully ante, p. 179.) Q. — In the absence of conditions of sale to the contrary, how is the purchaser to obtain attested copies of abstracted title deeds of instruments on record at the vendor's expense ? A. — It would seem that the purchaser is not entitled to attested copies of instruments on record unless they are in the vendor's possession. The rule seems to extend to instruments not strictly of record, as deeds enrolled for safe custody in a court of record, or wills registered and accessible. But if the vendor has not the instrument itself, and cannot obtain it, and can make a title without producing the deed itself, he is bound to procure an office or attested copy of it to enable the purchaser to ascertain that the abstract is correct. And when it is obtained, the purchaser is of course entitled to it on the completion of the purchase ; unless, indeed, the vendor retains other estates holden under the same title : (Sug. V. & P. Cone. View, 331, 332 ; 2 Hughes' Pract. Sales, 230, 2nd edit.) Q. — What is a deed of partition, and by whom made ? A. — A deed of partition is a private arrangement whereby joint tenants, tenants in common aSdi coparceners, agree to a division of lands or tenements : (Will. Keal. Pro. 81, 114, 367,~3th'edit.) Q. — Designate the several parts of a conveyance from A. seised in fee, to B. in fee. Is there any, and what, formal diiference, supposing A. to have taken the estate by descent from his father or other ancestor ? A. — They will be the following : parties, recitals, testatum (where, in consideration of purchase money, A. grants, &c. to B. and his heirs the premises), and the habendum ; then follow the covenants, viz. : that A. is lawfully seised, has good right to convey, for quiet enjoyment, freedom from incumbrance, and for further assurance. The covenants, that the vendor is lawfully seised and has good right to convey, are considered as synonymous, and the first is generally left out in practice. If A. took the estate by descent, he must covenant for the acts of his ancestors, as well as for himself and those claiming under him : (2 Hughes' Pract. Sales, 202, 204 ; and for a form, see id. Appendix ; Will. Real Pro. 368, 398, 4th edit.) Qjgjfjzed by Microsoft® CONTETAKCING. 183 Q. — Is it necessary to the validity of a deed that it should in any and what cases be read over to the parties ? A. — It is necessary that a deed should be read whenever any of the parties desire it ; and if this be not done it is void as to him : (I Steph, Com. 473, 3rd edit.) Q. — If a purchase deed be executed under a power of attorney from the vendor, in whose name should it be .executed, and what is necessary for the purchaser to consider ? A. — The deed should be executed in the name of the vendor, adding the words " by A. B., his attorney." The purchaser should satisfy himself that the vendor is living at the time of the execution by the attorney, as a power of this kind expires at the death of the principal : (Sug. V. & P. Cone. View, 420, et ante, p. 180.) Q. — What are the essentials to be attended to on the execution of deeds, as well under a power as otherwise ? A. — Where a deed was executed under a power, the terms of the power must have been strictly followed : (see 1 Steph. Com. ch. 16 ; Will. Eeal Pro. 247 to 249, 4th edit. ; 1 Hughes' Pract. Sales, 221, 2nd edit.) The 22 & 23 Vict. c.^^S, however, now enacts that a deed here- after executed in the presence of, and attested by, two or more witnesses, in the manner in which deeds are ordinarily executed and attested shall, so far as regards the execution and attestation thereof, be a valid execution of the power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution or attestation or solemnity. But if the consent of any person is necessary to the execution, it must still be obtained; or if any act is to be performed, not having reference to the mere execution, it must still be done. It is also provided that the terms of the power may, if thought fit, be followed (a): (sect. 12.) It is absolutely necessary to the due execution of a deed that it be sealed and delivered; the act of sealing must precede the delivery, and although signing is the usual practice, it is not always essential to the execution of a deed, and one witness is sufficient : (see 1 Steph. Com. ch. 16 ; Will. Eeal Pro. 247 to 249, 4th edit.) Q. — By what means are the respective species of property usually conveyed and transferred ? A. — Freeholds are generally conveyed by grant and release. Copyholds pass by surrender, which is completed by admittance. Leaseholds are transferred by assignment. Personal chattels pass by mere delivery. Q. — ^What are extraordinary conveyances, and those by matter of record ? A. — They are, firstly, private acts of Parliament ; and, secondly, royal grants : (1 Steph. Com. 592, 3rd edit.) Q. — By a marriage settlement a sum of money is to be raised for younger children of the marriage ; state the usual mode by which that is to be effected. A. — By means of a long term of years vested in trustees : (see Will. Real Pro. 340, 4th edit.) (a) It will be seen that this section is similar to that contained in 1 Vict. c. 26, as to the V execution of wills under vo^^jgjtjzed by MicrOSOft® 184 EXAMINATION QUESTIONS AND ANSWERS. Q. — Will an appointment attested by two witnesses be good in any and what case, when the power requires more witnesses than two ? A. — If the appointment is by deed, the terms prescribed by the power need not novt be strictly followed (see ante, p. 183.) If the appointment is to be by will, it must be executed as required by the statute 1 Vict. c. 26 : (see Will. Eeal Pro. 249, 4th edit.) Q. — What is necessary to effect an exchange of lands under the General Inclosure Act ? A. — By thej^gj 9 Vict, c. 118. it is prpvided that all exchanges under which land shall be taken and allotted for public purposes as aforesaid (see preceding part of the section) shall be made with the con- sent of the person interested in the land so taken, and that all other exchanges be made with the^con3entjn^writing_ Df the person interested jj n ^eJands_sQ_fixchangedj and every such exchange so to be made shall be valid and effectual to all purposes, and shall be specified and declared in the award. No exchange, however, is to be made of any land held in right of any church or chapel, or other ecclesiastical benefice, without the r.oTiap.nt, i n writing ^f thct bishop - of ths L di ocese and the _JBalron_of s uch beneficg j^ (sect 92.) By sect. 147 it is declared, that exchanges inay_be_ma4fl_ofJaiid» although not subj >ct_to_be_ inclose d under thi s, act. This act is further amended by the~9^ 10 Vict. c. 70; 11 & 12 TTct. c. 99 ; 12 & 13 Vict. c. 83 ; 20 & 21 Vict. c. 31. Q. — An allotment of land is awarded to A. in the inclosure of common field lands in lieu of A.'s previously existing rights. Is the purchaser of the allotment from A. entitled to any other evidence of A's title than the award of the commissioners and proof of their authority to make it ? A. — If an allotment of land is awarded to A. in the inclosure of com- mon field lands, in lieu of A.'s previously existing rights, on a purchase of the allotment from A., the title down to the exchange must be that of the estate given in exchange./ Where, however, the estate has been taken in exchange under the general provisions of the Inclosure Act, 8 & 9 Vict, c. 118, the single title alone seems necessary ; as the act contains a clause making the award, when confirmed, conclusive evi- dence that the directions of the act have been complied with, and de- claring that every allotment, exchange, &c. specified and set forth in the awards, shall be binding and conclusive on all persons whomsoever : (Dart's V. & P. 180, 2nd edit. ; Sug. V. & P. Cone. View, 271, 273 ; Hughes' Pract. Conv. 109, 110.) Q. — B. purchases from A. fifteen acres of land in a hamlet ; A.'s title deeds disclosing a clear sixty years' title to fifteen acres of land in that hamlet.. Ought anything more to be done by B. before he can safely take a conveyance from A. and pay the purchase money ? A. — On a purchase by B. of fifteen acres of land from A., and A.'s title- deeds disclose a sixty years' title, B. may, if he has identified the parcels and searched for judgments, annuities, Crown debts and lis pendens in the Registry Office of the Common Pleas, and also for incumbrances in the local registry, if the lands lie in a registry county, viz., Middlesex, Yorkshire, or Kingston-upon-Hull, and finds none, except what may be disclosed on the abstract of title, if any, take a conveyance of such lands and pay the purchase money. j Q. — A. possessed of leaseholds for years, appoints B. and C. his exe- [cutors ; B. proves tl©;^ggc(Q)yi')Wffl'0SR5/if®B.'s executor afterwards ICONVETANCING. 185 sells the leaseholds to D. Is any evidence of the title subsequent to A.'a I death necessary beyond the probates of the wills of A. and B. ? I A. — ^If A., possessed of leaseholds for years, appoints B. and C. his executors, and if B. proves the will and C. renounces, and B.'s executor afterwards sells the leaseholds to D., D. has a right to call for the pro- duction of the lessor's title, unless there is a stipulation to the contrary. So the fact of C.'s renunciation should be stated in the abstract ; and if the lands lie in a registry county, and the will has been registered, this should be stated, as well as the setting-out of the probates of the wills : (see Hughes' Pract. Conv. 15, 120, 121.) Q. — Is any and what formality necessary to the completion of a feoffment and bargain and sale respectively, after they have been signed by the feoffor and bargainor. A. — ^To a feoffment, livery of seisin is necessary to its completion (Co. Litt. 48 a); to a bargain and sale, enrolment is necessary to its completion and validity: (27 Hen. 8, c. 16; Will. Real Pro. 150, 4th edit.) Q. — Is a sixty years' title sufficient in all cases, or does it ever, and when, become necessary to go further back ? A. — A sixty years' title is not sufficient in all cases, ferTn deducing a title to an advowson one hundred years is required, as the presentations, which are the only fruits of the advowson, and, consequently, the only occasions when the title is likely to be contested, occur only^ at long intervals: (Will. Real Pro. 374, 4th edit., and see ante p. 13^.% ^y;cros8)^^ ' ''°'" ^^ ''"^ '^^'' *" ""^ 192 EXAMINATION QUESTIONS AND ANSWERS. subsequent purchaser, it must be either in the character of heir-at-law or in the character of devisee. If he sell in this character, the second purchaser must have notice of the will ; if he contract in that, the first purchaser has already procured the legal estate : (see 1 Sug. V. 85 P. 550, 9th edit.) But if the vendor be devisee only, the will should be registered : (Sug. V. & P. Cone. View, 404.) Q. — If a vendor claim leasehold estate in a register county as executor or legatee, can a purchaser from him insist upon the will being registered in either case? And state a reason. A. — It seems clear that if the vendor of leasehold estate is either as executor or legatee, the purchaser need not insist upon the will being registered, because no subsequent purchi);ser can procure a title without notice of the will : (see 1 Sug. V. & P. sup, ; see also Sug. V. & P. Cone. View, sup.) Q. — If an estate lie in a registijr; ■county, is a purchaser in any and what cases entitled that a* will should be registered ? A. — If an estate lieajn a register county, a purchaser from a devisee should not complete his contract till the will is duly registered, unless the vendor be both heir-at-law and devisee, or the estate is leasehold and the seller is either as executor or legatee : (see Sug. V. & P. supra.') Q. — What kinds or dSscriptioijs' of deeds require enrolment to give them validity; and within. :^at period from their date and execution must they be enrolled ? •-. A. — A bargain and sale requires enrolment to give it validity, which enrolment must be made within six months (which means lunar months) from the date, in one of the courts of record at Westminster, &c. : (27 Hen. 8, ©r-16 ; Will. Eeal Pro. 150, 4th edit.) A disentailing assurance must also be enrolled in Chancery within six calendar months after executioii-i. (3 & 4 Will. 4, c. 74, s. 41 ; Browell's Eeal Pro. Stats. 97.) So conveyances under the Statute of Mortmain must be enrolled ■ within six mo^ishs from their execution : (9 Geo. 2, c. 36.) ,_Q. — Whit ,woUiA be the consequence of the omission to enrol a bargain and sale within the proper time ? *A. — 'The omission to ijiwol the deed within the proper time will render it inoperati^^ : .(^JIughes\|P^ct. Sales Real Pro. 159, 2nd edit.) Q. — In w'fiut^«feses~re,cnrolme4t essential to the validity of a grant of an annuity ? / , ' A. — It is now 'no longer necessary j.to, enrol them in any case, as the J7 & 18 Vict. c. 90 (the statute for the- repeal of the Usury Laws), repealed the statutes which required their enr(5lment : (Will. Real. Pro. 271, 4th edit.) But, if registered in a similar n^jaftner to a judgment, they are a charge on the lands in the hands of the purchaser thereof: (see 18 Vict. c. 15, s. ] 3.) Annuities given by will, howe/er, are exempted from this act : (s. 14 ; and see Hughes' Pract. Conv. 164.) "> ' > Q. — State the general effect of the statute 27 Hen. 8, c. 16, called the Statute of Enrolment,>4nd to what^species of deed i^^pplies ? A. — The statute 27 ^Bn. 8, c. 16, requires every bargain and sale of any estate of inheritaflfee j^r frediold^to be« mE^de by .deed indented andJf., enrolled within six mojiths. froni the -.date in one oif the courts of record at Westminster, oi.vbefoi^^i^'i^itos ro<^«rtttegmd tw« justices of tlie'iD^ace and the clerjjyg^^y^^^^yifl^^l^^iunty irf wliich'^the'Jaflas ~ 00N7ETANCING, 193 lay, or two of tliem at least, whereof the clerk of the peace should be one : (Will. Eeal Pro. ISO, 4th edit. ; Burton's Comp. pi. 139 ; 1 Steph. Com. 493.) The act contains an exception of lands, &c. lying within cities, boroughs, or towns-corporate, where any officers have authority, or have lawfully used to enrol any evidences, deeds, &c. : (Burton's Comp. ubi sup.) HUSBAND AND WIFE. Question. — What are the rights of a husband with respect to his vdfe's real estate ? Answer. — By the act of marriage, the husband and wife become in law one person, and so continue during the coverture ; accordingly the husband is entitled to the whole of the rents and profits which may arise from his wife's lands, and acquires a freehold estate therein during the continuance of the coverture, and he may, by the 19 St 20 Vict. c. 120, make leases of it. If the husband survives his wife, he will, in case he has had issue by her born alive, that may by possibility inherit the estate as heir, become entitled to an estate for the residue of his life in such lands and tenements of his wife as she was solely seised of in fee simple or fee tail in possession. But no act of the husband only, during the coverture, shall in any wise be prejudicial to the wife or lier heirs, or to such as have a right to the lands by the death of the wife : (Will Real. Pro. 182, et seq. 4th edit.) Q. — If the wife be seised in fee of lands, and she die leaving her husband surviving, what interest does the husband take ? A. — In such a case l.e will, if he has had issue by her born alive, that may by possibility inherit the estate as her heir, become entitled to an estate for the residue of his life in such lands and tenements of his wife as she was solely seised of in fee simple (or in fee tail) in possession ; and is called tenant by the curtesy of England : (Will. Real Pro. 185, 186, 4th edit.) Q. — What interest and power does the husband take in and over the following property of the wife : her personalty in possession, her chattels real, her choses in action ; and what effect hfts the death of husband and wife, or wife, on this interest ? A. — ^The wife's personal chattels in possession belong to the husband absolutely, with the exception of her paraphernalia. As to the chattels real, the husband becomes by the marriage possessed of them in her right, and he is entitled not only^to the profits and management of them during theirjoint lives, but he may also dispose of them as he pleases during the Ijoverture, and they are liable for his debts ; and if he survive her, they are absolutely his. But he cannot devise them by will ; and if he make no disposition of them in his lifetime, and she survive Mm, they go to her, and not to his executors. The wife's choses in action do not become the husband's until he reduces them into possession ; and if he dies, before this is done, they remain to the wife ; so, if she dies before he has reduced them into possession, they form part of her estate, to which the husband is entitled to administer, and so become the owner thereof: (see 2 Steph. Com. 240, et seq. ; Will. Per. Pro. 273, et seq.) Digitized by^crosoft® 194 EXAMINATION QUESTIONS AND AHSWEKS. Q. — If a husband and wife mortgage the leashold estate of the wife^ to whom will the equity of redemption belong if the husband survive the wife ; and to whom, if the wife survive her hilsband ? A. — Each will take it by survivorship : (see Will. Real Pro. 336, 4tli edit. ; Co. Litt. 46 b, 351 a ; Smith's Man.Eq. Jur. 275, 3rd edit.) Q. — State the nature and principal incidents of " separate estate." A. — Whenever real or personal estate is given, granted, or devised to, or settled on a woman, either with or without the intervention of trustees, whether after marriage, or as a provision for marriage, or not in contem- ^plation of immediate marriage, and whether by her husband or by a mere stranger, it will be deemed separate estate, if it appear beyond reasonable doubt that the property was intended for her separate use : (Story's Eq. Jur. § 1380, 1381, 1384.) It is an incident of separate estate that it is free from the control and debts of the husband ; and, in order more completely to protect the wife, the Court of Chancery allows it to be so tied down, that she shall not have power during the cover- ture to anticipate or assign her income. In this instance, therefore, an exception is allowed to the general rule, which forbids any restraint to be imposed on alienation : (Will. Real Pro. 183, 4th edit.) But the separate use clause, either with or without a restraint against anticipation, will be confined to the then existing or then intended coverture, unless a contrary intention plainly appears : (Smith's Man. Eq. Jur. 378, 4th edit. ; Bur- ton's Com. PI. 1.^92, n ; and see J\wris v. Norris, 29 L. T. Rep. 275.) Q. — How does a married woman convey her estate in freehold, since.- the statute for the abolition of fines and recoveries, and what are the requisites ? A. — The 3 & 4 Will. 4, c. 74, provides that a married woman may now convey simply by deed; but, to render such an assurance valid, it is necessary that not only husband and wife should concur therein, but also that she should be examined separate and apart from her husband, either before a judge, which now includes a County Court judge (19 & 20 Vict. c. 108), or master in Chancery, or by two commissioners appointed under the act, as to her freedom and consent, in addition to which the deed must be duly acknowledged by her, and the acknowledgment must be indorsed on the deed : (see Hughes' Pract. Conv. 237, 238 j WUl. Real Pro. 189, 4th edit.) Q. — Does the statute apply to the equitable as well as to the legal' estate of a married woman, or to leaseholds for years ? A. — The statute applies to both legal and equitable estates : (see sect. 77 ; Sug. Real Pro. Stats. 239, 242, 243 ; 1 Steph. Com. o38.> The husband may alone absolutely dispose of his wife's leaseholds for years ; unless they be settled to her separate use : (Will. Real Pro. 336, 4th edit.) Q. — What is requisite to make efiectual the deed of a married woman not relating to her separate estate ? A. — Both husband and wife must concur therein ; she must be examined separate and apart from her husband as to her consent, before a judge or master in Chancery or by two commissioners ; in addition to which the deed must be duly acknowledged by her : (1 Hughes' Pract. Conv. 238 ; Will Real. Pro. 189, 4th edit.) Q. — Can separate estate be limited to an unmarried woman ? A. — Yes ; separate ^fei*iiiay-i)e>iiasi«© continuing trustee jointly ? A. — The realty, to vest the legal ownership in the trustees, must be conveyed unto and to tjifif^ft^gg^^ flW^t^fl^o a third person to their 200 XXAMINATIOM QUBSTIOHa AHD ANSWBBS. use, when the Statute of Uses will give them the legal estate. The remaining trustee, or the person who has the legal estate, must convey. As to personalty, if it consists of stock, &c., it is suflScient to transfer the stock, &c. into the names of the trustees. If the property be lease- hold, it is assigned over to a third person, who reassigns it to the new and continuing trustee. It is, however, by the 22 & 23 Vict. c. 35, enacted, that any person shall have power to assign personal property, , now by law assignable, including chattels real, directly to himself and another person or other persons or corporation, by the like means as he might assign the same to another : (sect. 21.) APPOINTMENT. Question. — ^When a power is executed by will, at what point of time does it take effect ; and would there be any difference in this respect if the power were executed by deed with a power of revocation to the appointor ? Answer. — The appointee will only take from the death of the party executing the power in the case of a will (7 Will. 4 & 1 Vict. c. 26,. s. 24) ; and it would seem also in the case of a deed (see Co. Lit. 27 1 b. n. 1 ; Burton's Comp. pi. 787, et seq.) ; still when executed by deed, the deed will take effect from the time of execution, although liable to be revoked just as a will, and the donee can have no indefeasible title till the death of the donor. Q. — Where a power of appointment over real estate is executed, from whom does the appointee immediately take in point of estate, viz., the party creating the power, or the party executing it ? And state the reason. A. — The appointee takes from the party creating, and not from the party executing, the power ; because no estate, but a use is only passed from the party executing the power, and estates, created by the execution of a power, take effect in precisely the same manner as if created by the deed which raised the power : (Sug. Pow. ch. 5, s. 8 ; Burton's Comp. pi. 346, 787; Will. Real Pro. 255, 4th edit.; 1 Steph. Com. 507.) Q. — When under a settlement or will a father has a power to appoint among all his children as he may think fit, will an appointment which leaves out one or more of such children be effectual, or is it necessary he- should appoint a share to each, and if so, must such share be a sub- stantial, or may it be a merely nominal one ? A, — A father, who has the power of appointing among all his children, cannot leave out one or more of such children, as that would not be a valid exercise of the power; but the same object may be obtained by ap- pointing a substantial share to one and a nominal share to another:: (1 Will. 4, c. 46; 1 Hughes' Pract. Sales Real Pro. 390, 392, 2nd edit.) Q. — In case a father has a power of appointing a sum of money among his children, and in consideration of a sum paid to him by one of such children, he makes an appointment in favour of such child; is the apppoint- ment good ? And give a reason for your answer. A. — ^In this case the appointment is bad ; the father being in the position of a trustee, who cannot be allowed to stipulate for an advantage to himself by the execution of his trust : (Story's Eq. Jur. § 255.) Q.—ln what case it BidmSi^WWclh^M formalities required by CONVEYANCING. 201 the instrument creating a power should be observed wh'en the power is exercised; and are there any cases in which other formalities must be substituted ? A. — ^The Wills Act provides that a will, whether executed in pur- suance of a power or otherwise, must be exercised in accordance with the Wills Act, or the will is void : (see 1 ^Vict.^!^26, s. 10.) And as before shown, a deed is sufficiently execute^^nTneierms of the 12th section of the 22 & 23 Vict. c. 35, are complied with : (see fully ante p. 183.) Q. — Before the Wills Act, was there any exception to the rule that required a strict adherence to the prescribed formalities ? A. — Before the Wills Act, the prescribed forms required on the execution of a power must have been complied with in all cases : (see Sug. Pow. 212, et seq. 4th edit.) Q. — Can a person having an absolute power of appointment over real estate, defeat judgments entered up against him subsequently to the vesting of such power in him, in any and what way ? And state the reason for your answer. - A. — ^A person having an absolute power of appointment over real estate cannot defeat judgments entered up against him subsequently to the vesting of such power in him by exercising that power, except in favour of a purchaser for valuahle consideration, without notice, because judgment debts are now made binding on all lands over which the debtor shall, at the time of the judgment, or at any time afterwards, have any disposing power which he may, without the assent of any other person, exercise for his own benefit : (1 & 2 Vict. c. 110, ss. 11, 13; 2 Vict. c. 11 ; 2 Hughes' Pract. Sales Real Pro. 110, 2nd edit.; Will. EealPro. 245, 246, 4th edit. ; Sug. V. & P. Cone. View, 392.) Q. — Is a purchaser under an appointment, as in the last query, affected, and how, by the statutes for the abolition of arrest on mesne process, or any of them ? .<4.— The 1 & 2 Vict. c. 110, is the act referred to. By this act judgment debts are made a charge on all lands, &c. (including copyhold and customary-hold), of which the judgment debtor is, at the time of entering up of the judgment, or at any time afterwards, seised, possessed, or entitled, for any estate or interest whatever at law or in equity, whether in possession, reversion, remainder, or expectancy, or over which the debtor has a general power, and which is to be binding upon the debtor, and all persons claiming under him ajter such judgment: (sect. 13.) But, before lands in the hands of purchasers can be affected under the provisions of this act, the judgment must be regis- tered pursuant to the act : Csect. 19.) And, when jegiste red. purchasers for valuable con siderati on without no tice are prot ested : (see references supra; and see ante, pp. 165 to 168.) * Q. — A. by his will gives B. a power to appoint a sum of money to all, or some, or one of his (B.'s) children, as B. may think fit. B. has several children : one of such children dies in B.'s lifetime, leaving children, being B.'s grandchildren. Is B. authorised under such power to appoint any part of the money to such his grandchildren, or any of them ? A.—B. is not, und^t^s^i^^r, a^ithgrjs^o appoint any part of the 202 EXAMINATION QUESTIONS AND AN8WEES. money to his grandchildren or any of them : (see Sug. Pow. 252, 7th edit. ; Burton's Comp. pi. 571 and note.) Q.— Suppose an estate being settled upon A. for life, with remainder to such son of his as he should appoint, and A. should appoint to his son B., who had just attained twenty-one, and A. and B. should thereupon mortgage the estate to a third person for money advanced to A., would such a transaction be valid ? State the reasons for your answer. , A. — ^It is a rule of equity that contracts and conveyances whereby ^ifeiefits are secured by children to their parent£if not entered into with "scrupulous good faith, and reasonable under the circumstances, will be set aside iinto^s third persons have acqu ired an i njerest under them : (see Story's Eq. Jur. § 309.) If, therefore, in the case put, the_contractjs tainted with fraud. oL which the jmort gagee had cogaiizance, the transac- tioiTwiirbeseraside, but not otherwise : (see Smith's Man. Eq. Jur. 67, 3rd edit.) TESTAMENTARY ALIENATION. Question. — "What is a will ? Answer. — A will or testament is a written instrument by which a person expresses what he wills or wishes to be performed after his death. Wills are technically divided into wills or devises, and wills or testaments. A will or devise is applied to the disposal of real estate, to take effect after the death of the owner. A will or testament is applied to the disposal of personal estate, to take effect after the death of the owner: (see Holth. Law Die. 3rd edit.) But see 1 Vict. c. 26, s. 1. Q. — At what age may a will of real or personal estate be made ? A. — No person can make a will who is under the age of twenty-one years : (1 Vict. c. 26, s. 7.) But a will may be made at any time on the day before that which is usually considered us the twenty-first anniversary of the testator's birth, there being in law no fraction of a day : (Allnutt's Pract. Wills & Adms. 4,. 3rd edit.) Q. — ^Who may make a will, and what persons are incapable of making- a will? *4.— rAll persons except the following are capable of making a will : An infant ; a feme cover t, except of such property as may be settled to her separate use, or over which she has a power of appointment, or of goods as executrix; also, if the husband has been banished for life by act of "Parliament, an exception occurs. It would also appear that if the husband is transported as a felon for a term of years, the legal disabilities of the wife are during that time suspended, i The will of an alien devising I lands is voidable only as he has a defeasible title in the lands, which it J appears he may by his will pass to a devisee. A traitor is unable to- jjnake a will; this is also the case with a felon against whom sentence_Qf, death is recorded; an idiot cannot make a will; B^ntaLlffiLbeciUtj^ occasioned by- great age or drunkenness will incapacitate, a man from making a will; a person who is born deaf, dumb a nd blinf| cannnt. make a will, though blindness or deafness alone will not render a person incapable ; a macTgr lunat ic^ person cannot make a will; but a person found lunatic by commission may make a will during a lucid' interval, but the burd®/^]f;|ee&fcyf Mfc^8b#(^U lie on the carties who CONVEYANCING. 203 set up the will: (Allnutt's Pract. Wills & Adms. 4, et seg. 3rd edit.) A tenant in tail cannot devise the entailed property, nor n. joint. tpnaTif the joint property. Q. — "When was the act for the amendment of the law with respect to wills passed, and from what day does it take effect ? A. — The act for the amendment of the law with respect to wills was passed in July 1837, and takes effect from the 1st day of Jan. 183S: <1 Vict. c. 26, s. 34.) °" Q. — State the mode in which a will is required to be executed by the ■act 7 WiU. 4 & 1 Vict. c. 26, for the amendment of the law relating to wills ; and has any further alteration been made ? A. — The 1 Vict. c. 26, enacts, that the will must be signed at the foot or end thereof by the testator, or by some person in his presence and by his direction; and the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary : (s. 9.) The words "at the foot or end thereof" caused much incon- venience, and an act was passed to remedy it (15 & 16 Vict. c. 24); this act enacts that the wiU shall be valid if the testator's signature shall be placed at or after, or following, or under, or beside, or opposite to the end of the will; so that it shall be apparent on, the face of the will that the testator intended to give effect by such his signature to the writing signed as his will. And no such will shall be affected by the circum- stance that the signature shall not follow or be immediately after the •foot or end of the will, or that the signature shall be placed among the words of the testimonium, or attestation clause, or shall follow or be after or under, or beside the name or one of the names of the subscribing witnesses, or that the signature shall be on a side or page or other portion of the paper or papers containing the will, whereon no clause or paragraph or disposing part of the will shall be written, above the signature, or that there shall appear to be sufficient space on or at the bottom of the preceding page, or side, or other portion of the same paper on which the will is written, to contain the signature ; but no signature shall be operative to give effect to any disposition or direction which is underneath or follows it, nor to any disposition or direction inserted after the signature shall be made: (sect. 1.) The Wills Act does not extend to wills of personal estate made by sailors and soldiers in . certain cases, ^ provided for by 29 Car. 2, c. 3, and 11 Geo. 4 & 1 Will. 4, c. 20. . Q. — When, and of what property, may a married woman make a will ? A. — A married woman may (if of full age and sound mind) make a will of such property as may be settled to her separate use, or over which she has ' a power of appointment, qpif goods vested in .her as e xecutyi^y. An ex- ■ception also occurs when the husband has been banished for life by act of Parliament, as to her incapacity to make a will. So if she has obtained ll an order under th e Divorce Act protecting her earnings and property, ' or^has had^a iudicial separatpn decreed: (see 19 & 20 Vict, c. 57.^ It would appear, also, if the husband is transported for a term of years, the legal disabilities ot his wife are for that time suspended: (Allnutt's Pract. Wills & Adms. 4, 5, 3rd edit.) So, by the licence of her husband she may make a will of her personal estate, or more properly by his assent, for unless he sanctions the particular will in question his ^previous licence to make, one will not . avail, as the property is hisj and 204 EXAMINATION QUESTIONS AND ANSWERS. such assent amounts to no more than a waiver of his general right of administering his wife's effects, so that it will not be eifectual unless he happens to survive her, for in that case only could he have been her administrator: (see 2 Steph. Com. 233, 234.) Q. — State the principal enactments of the Wills Act of Jan. 1838, with the alterations in the old law affected thereby. A. — The principal enactments are the following : All persons may dispose by will (with the exceptions mentioned, ante, p. 202) of all their real and personal estate to which they are entitled at their death, including estates pMr autre vie, contingent, executory, or future interests, and also rights of entry upon land. Publication is no longer a requisite. A will is not to be void on account of incompetency of an attesting witness. A will is now revoked by marriage alone; before the Wills Act both marriage and the birth of a child were necessary to cause a revocation. No will or codicil is to be revoked (save as above) but by another will or codicil, or by some writing declaring an intention to revoke the same, and executed in like manner as a will is required to be executed, or by burning, tearing, or otherwise destroyingthe same with an intention to revoke the same. Before the act the testator must have been seised of the devised lands at the time of making his will, and at his death, to have passed them; a will, however comprehensive, could not have passed after-acquired property; but wills now speak from the testator's death, unless a contrary intention appears. Under this act, also, unless a contrary intention appears, a devise which fails of effect by reason of the death of the devisee in the testator's lifetime, or by reason of such devise being contrary to law or incapable of taking effect, will now fall into the residue, if any, contained in the will, instead of going to the testator's licir-at-law, as it would have done piior to the above act. The words " die without issue," or " die without leaving issue," &c., are to be construed to mean dying without issue living at the death, and not. an indefinite failure of issue, unless a contrary intention appears by the will. A devise without any words of limitation is to pass a fee; formerly, a life estate would only have passed without words of limitation. A devise of an estate tail does not now lapse by the death of the person to whom it is given in the testator's lifetime, if he leaves issue who may be capable of in-heriting under the entail, living at the testator's death. Nor are gifts to children, or other issue of the testator, to lapse by their death in the testator's lifetime, if they leave issue living at the testator's death. The same formalities are now required in the execution of wills of personal estate as of real estate ; formerly, personal estate might have passed by an unattested will. Wills under powers must be executed in the same manner as other wills. Alterations also have been made in the execution and attestation of wills of real estate. The ^ Statute of Frauds required three witnesses to attest the signing, but did not require them to be present at the same tim'S;" under the Wills Act only two witnesses are required to attest the signing, but they must all be present at the same time, and the signature must be made or acknow- ledged by the testator, which -vy^s not formerly necessary: (I Vict. c. 26; . BroweirslieaiPrQ. Stats.; ,1 Steph. Com. ch. 20.) Q. — Who ought not to he an attesting witness to the execution of a will ? A. — The Statute of Frauds required that the witnesses should be credi- ble. The Wills Act I[)}gjfie6dsb^lemi!mft^ to the credibility of the CONVEYANCING. 205 •witnesses; and it, moreover, says that the incompetency of any witness at the time of the execution of the will, or at any time afterwards, is not sufficient to invalidate the will : (sect. 14.) If any person, however, attests the execution of a will, to whom, or to whose wife or husband, any bene- ficial interest shall be given, (except a charae fpr payment of debts), the gift will be void, but the person attesting wfll i)e a good' witness: (s. 15.) Creditors are good witnesses ; so is a person who is appointed executor : (ss. 16, 17; Will. Eeal Pro. 171, 4th edit.; Steph. sup.) Q. — ^Previously to Jan. 1 838, how many witnesses were required to a will of real estate, and how many to a will of personal estate; and what is the present law_ in regard to each ? A. — TUe Statute of Frauds required three witnesses at least to a will of real estate, but none were necessary in the case of a bequest of personal estate; but by the 1 Vict. c. 26, s. 9. two or more witnesses are required in the testamentary dispositions of both descriptions of property: (Will. Real Pro. 168, 4th edit.; Browell's Eeal Pro. Stats. 200, &c.; Steph. sup.) Q. — What attestation is requisite to the valid execution of a will ; and, if a form of attestation be subscribed, what should that form be? A. — The Wills Act requires the will to be attested by two or more witnesses present at the same time, and such witnesses are to attest and subscribe the will in the presence of the testator, but no form of attesta- tion is necessary (sect. 9.) A form of attestation is, however, invariably used ; otherwise they may be called upon to prove the several particulars of the execution which may have escaped their recollection. The form generally runs thus : " Signed by the said A. B., the testator, as and for his last will and testament, in the presence of us, present at the same time, who, in his presence, in the presence of each other, and at his request, have hereunto subscribed our names as witnesses. E. F. G. H." — (Allnutt's Pract. Wills 85 Adms. 39, 76, 3rd edit.) Also, if a form is not used, the Probate Court will require an affidavit that the will w^as so executed before they will grant probate: (1 Hughes' Pract. Sales Real Pro. 424, 2nd edit.) Q. — Is it requisite that the testator see the witnesses attest the will ? A. — Yes; this is expressly required by the Wills Act:-(1 Vict. c. 26, s. 9.) This was also required by the Statute of Frauds: (Will. Real Pro. 168, 4th edit.) But it will satisfy the act if the testator be in such a position that he might have seen the witness attest the will if he chose to look: (see Browell's Eeal Pro. Stats. 202, and the cases there cited; Lord St. Leonards' Handy Book, 149, 6th edit.) Q. — Must all the witnesses sign their names in the presence of each other ? A. — The 9th section of the Wills Amendment Act does not, it will be seen, require that the witnesses should sign in the presence of each other; but it will not be prudent, in any case, that either of the witnesses should leave the room until every requisition of the act is complied with : (Allnutt's Pract. Wills & Adms. 75, 2nd edit.; Sug. Real Pro. Stats. 336.) Q. — If alterations are made in a will previous to the signing, what precautions would you use with respect to them ? A. — Alterations in a will previous to executing it should, as a proper , precaution, be marked4n iIm mardn-bviha Jj^tator and witnesses, and 206 EXAMINATION QUESTIONS AND ANSWBES. referred to in the attestation clause: (1 Vict, c.26, s. 21; Sug. Real Pro. Stats. 341, 347.) Q. — What is necessary if the testator makes alteration after signing ? ^.— The will must be re-executed: (1 Vict. c. 26, s. 21; Sug. Real Pro. Stats. 347.) Q. — How can the revocation of a will be now effected ? A. — The 1 Vict. c. 26, enacts that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid (meaning marriage, which will now alone revoke a will, formerly marriage and the birth of a child were necessary), or by another will or codicil executed as a wiU is required to be executed, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direc- tion, with the intention of revoking the same : (sect. 20; Allnutt's Pract. Wills and Adms. 82, et seq. 3rd edit.; Will. Real Pro. 171, &c. 4th edit.; 1 Steph. Com. 555.) Q. — ^What effect has a codicil properly executed under the 7 Will. 4 & 1 Vict. c. 26, on a will made previously, which would have been good as the law then stood, but not so under this act ? A. — Although a testamentary instrument is not properly executed or attested, yet if it is clearly referred to by one of later date, properly executed and attested, it will be operative, and no particular form of ex- pression is necessary: (Sug. Real Pro. Stats. 339.) Therefore, in the question put, the will will be operative if referred to in the codicil. Q. — ^Is a will made before marriage, and consequently thereby re- voked, revived by a codicil made after marriage giving legacies, but not referring to the will otherwise than by the introductory words, " This is a codicil to my will " ? A. — If the will and codicil are written on the same paper, or if it can be shown that the testator never made any other will (for which pur- pose parol evidence is admissible) the reference in the codicil to the will will be sufficient to set up and revive the will; but, in the absence of such proof, the reference would be too vague for this purpose: (^ee Allan v. Maddock, 31 L. T. Rep. 359, where the point is fully considered; see also Sug. Real Pro. Stats. 339; Lord St. Leonards' Handy Book, 151.) Q. — Will a mortgage in fee operate in law and equity as a revocation of a will made previously? A. — It will operate as a revocation to the amount of the charge only : (see 17 & 18 Vict. c. 113 ; et ante, p. 162.) Q. — Suppose a will to devise all the testator's real estate, and the testator, after executing his will, purchase or acquire a freehold estate, and do not subsequently re-execute his will or make any devise of such, estate, to whom upon his death will such after-purchased or acquired estate descend ? A. — ^Formerly a will, however comprehensive in its terms, could not have passed subsequently-acquired property, but it would have devolved upon the heir-at-law. But the 1 Vict. c. 26, enacts, that it shall be lawful for evei-y person to devise, bequeath, or dispose of by his will all real and personal esta^/^^jijij^g^ljpjlj^^^g^y^d to, either at law or in CONVETANCING. 207 equity, at the time of his death, and which, if not so devised or bequeathed, would devolve upon the heir-at-law, including estates acquired after executing his wUl: (sect. 3.) Therefore, the after-acquired estate will go to the devisee, and not to the heir: (see Browell'sReal Pro. Stats. 195; 1 Steph Com. 550; Will. Real Pro. 168, 4th edit.) Q. — ^If the testator do not name any executor of his will, who would be entitled to probate? A. — The court, in the exercise of its discretion, considers . the right to administration to follow the right to the property. In the case put, therefore, administration cum testamento annexo would be granted to the residuary legatee in preference to the next of kin: (Allnutt's Pract. Wills and Adms. 106, 107, 3rd edit.) Q. — In what court or courts should a will of personalty be proved, where the testator leaves bona notabilia in different dioceses ? A. — ^Formerly if the testator left bona notabilia, or chattels, to the value of a hundred shillings in two distinct dioceses or jurisdictions within the same province, either Canterbury or York, the will must have been proved in the Prerogative Court of that province: (see Allnutt's Pract. Wills and Adms. 97, 2nd edit.) But now the 20 & 21 Vict, c. 77, provides that probate of a will may be granted by a district registrar in the name of the Court of Probate, and under the seal of the district registry, if it appears by affidavit of the person applying for the same, that the testator had at the time of his death a fixed place «f abode within the district in which the application is made, the place of abode being stated in the affidavit; and such probate shall have effect over the personal estate of the deceased in all parts of England: (see sect. 46.) This section also applies to cases of intestacy. By sect. 47, the affidavit is to be conclusive for the purposes of the grant, and the gr-ant is not to be recalled, &c., even if the testator (or intestate) had no fixed place of abode within the district at his death, and the probate so granted is a protection to all persons dealing with the executor under it. By sect. 59, applicatioii may, however, be made to the principal registry, if thought fit: (see Coote's Probate Ct. Pr. 8, et seq.) Q. — Can a person be admitted as a witness to prove the execution of a will, or the validity of it, who, or whose wife or husband, takes a beneficial legacy under the will ; and will she or he be entitled to the legacy or not? A. — ^The gift will be void, but this does not prevent the person to whom, or to whose wife or husband, the legacy is given, being admitted to prove the execution or validity of the will : (1 Vict. c. 26, s. 15 ; Will. Eeal Pro. 168, 4th edit. ; 1 Steph. Com. 554.) Q. — ^Is there any and what valid objection to an executor or creditor being an attesting witness to the execution of a will ? A. — ^No person on account of his being appointed executor of a will is thereby rendered incompetent to be admitted as a witness to prove its execution. A creditor may also attest the execution of a will, although there may be a charge for payment of debts : (1 Vict. c. 26, ss. 16, 17 ; and references supra.) Q-mmAre there any cases in which the interest of a devisee or legatee does not lapse by their death in the lifetime of the testator ? And give instances. Digitized by Microsoft® 208 EXAMINATION QUESTIONS AND ANSWERS. A — The act ] Vict, c. 26, enacts, that where any person to whom any real estate shall be devised for an estate tail, or an estate in quasi entail, shall die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will : (sect. 32.)- It further enacts that, where any person, bein ^ a child p r other issue of the testator, to whom any realtor jersonal estate shall be devised or bequeathed for any estate or interest not determinable at or before the death of such person, shall die in the testator's lifetime, leaving issue living at the testator's death, such devise or bequest shall not lapse, &c., unless a contrary intention appears by the wiU : (s. 33 ; Browell's Eeal Pro. Stats. 215 ; Will. Real Pro. 173, 174, 4th edit.) Q — WiU a lapsed devise of real estate go to the residuary devisee of real estates, if any, or to the testator's heir ? A. — It will fall into and form part of the general residuary estate, and pass accordingly, unless a contrary intention appears ; but if there be no devise of the residue, it will go to the heir-at-law : (1 Vict. c. 26, s. 24 j Sug. Eeal Pro. Stats. 367 ; Browell's Eeal Pro. Stats. 211 ; Will. Real Pro. 173, 4th edit.) Q. — Will a general devise of all testator's real and personal estates pass those vested in him in trust, or by way of mortgage ? A. — Yes ; unless a different intention is to be collected from the context of the will : (see Smith's Man. Eq. Jur. 266, 4th edit. ; Hall v. 31ay, 30 L. T. Eep. 64.) Q. — Will a fee simple pass by will to the devisee without words of limitation ; and, if it will pass, cite the authority for your answer ? Would it be the same if the testator died in 1801 or in 1857 ? A. — A fee simple will pass by will, without words of limitation : ( 1 Vict» c. 26, s. 28.) But this act only applies to wills made after the 1st Jan. 1838 ; therefore, if the testator's will was made before 1838, although he died after that time, this act will not apply : (see sect. 34 ; Browell's Real Pro. Stats. 216.) Q. — A. devises lands to. B. ; who is heir-at-law. Does B. take by descent or purchase, and has the law on that subject undergone any, and what, recent alteration ? A. — Under the old law, a devise by a testator to his heir-at-law would have been void, the heir in such case taking by descent. But by the 3rd section of the 3 & 4 Will. 4, c. 106, the heir in such a case is to take by purchase and not by descent : (see 1 Steph. Com. 399 ; Will. Eeal Pro. 181, 4th edit.) Q. — A testator seised in fee of lands, and also of the tithes of them, devises the lands without expressly including or showing his intention to include the tithes. Will the latter pass to the devisee of the land ? A. — The ownership of both tithes and the lands out of which they issue by the same person will not have the effect of merging the one in the other ; consequently, they will not pass under the devise of the lands, unless, indeed, they have been merged under the Tithe Commuta- tion Act : (Will. Eeal Pro. 284, 285, 4th edit.) ' - ' numbered, and not the common ancestor, according to the rules of the canenwts, by which the descents of real estates are regulated. There- fore, in the first place, the children and their descendants, or, on failure of children, the parents of the deceased, are entitled to the administra- tion ; both parents and children are indeed in the first degree, but with us the children are allowed the preference. Then follow brothers,, grandfathers, uncles or nephews, and the females of each class respec- tively ; and lastly, cousins. The half blood is admitted to the adminis- tration as well as the whole ; for they are of the kindred of the intestate. Therefore, the brother of the half blood shall exclude the uncle of the- whole blood : (Allnutt's "Wills & Adms. 174, 3rd edit. .; and see Ooote's- Probate Ct. Pract. 82.) Q. — State when the next of kin take per stirpes, and when per capita ? A. — If all the intestate's children die in his lifetime, leaving issue, such issue wiU take per capita, that is, in their own right. But if some only of the intestate's children die in his lifetime, leaving issue, then the issue will take per stirpes ; they now claiming by representation and not in their own right : (Allnutt's Pract. Wills & Adms. 375, 3rd edit, j 2 Steph. Com. 253.) Q. — Is there any, and if any, what difierence between the distributive share of an intestate's efiects taken by brothers and sisters of the half blood and whole blood ? A. — A brother or sister of the half blood is equally entitled with one. of the whole blood : (Allnutt's Pract. Wills & Adms. 374, 3rd edit.) Q. — ^In case of intestacy as to real estate, to whom will it descend ? A. — ^To the intestate's heir-at-law : (Will. Eeal Pro. 57, 58, 4th edit.> Q. — ^What is the difference between an heir apparent and an heir- presumptive ? A. — An heir apparent is the person who, if he survives the ancestor, must certainly be his heir, as the eldest son in the lifetime of his father. An heir presumptive is the person who, though not certain to be heir, at ajl events, should he survive, would yet be the heir in case of the ances- tor's immediate decease. Thus, an only daughter is the heiress presump- tive of her father, but whose present hopes may be hereafter cut off by the birth of a son: (Will. Eeal Pro. 74, 75, 4th edit.; 1 Steph. Com. 358.). Q. — Explain the doctrine of " possessio fralris." A. — Possessio fratris is the seisin of the brother. Under this doctrine- if a person becomes entitled to lands by purchase (in its technical sense), and has a brother of the half blood and a sister of the whole blood, the sister of the whole blood shall be his heir in preference to the brother of ' the half blood. But, otherwise, this doctrine is done away with by the 3 & 4 Will. 4, c. 106. Q,. — Can persons of the half blood inherit real estates by descent in any, and what, cases, and under what authority? A. — A kinsman of the half blood is now capable of being heir, and such kinsman is to inherit next after a kinsman in the same degree of the whole blood, \and after the issue of such kinsman when the common ancestor is a male,^ and next -after the common ancestor when such/ ancestor is a female: (3 & 4 Will. 4, c. 106, s. 9; Will. Real Pro. 86 j , Digitized by Microsoft® " 214 EXAMINATION QUESTIONS AND ANSWERS. 4th edit.; 1 Hughes' Pract. Sales, 454, 455, 2nd edit.; 1 Steph. Com. 386.) Q. — What are the general rules as to the descent of freehold lands of inheritance ? A. — As altered by the recent act, 3 & 4 Will. 4, c. 106, the rules of descent may be thus stated : — -^1. In every case the descent shall be traced from the purchaser. 2. Inheritances shall in the first place lineally descend to the issue of the purchaser in infinitum. 3. Males are preferred to females, and an elder male to a younger ;. but females (when there are several) take together. 4. The issue of the children of the purchaser represent or take the place of their parent in infinitum ; the children of the same parent being always subject (amongst each other) to the same- law of inheritance as contained in the third rule. 5. On failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the. prefer- able line, supposing no issue of a nearer ancestor in that line to exist. 6. Among the lineal ancestors of the purchaser, the paternal line (whether of the purchaser or of any ancestor, male or female) is always preferred to the maternal. 7. Where an ancestor, to whom, if living at the purchaser's death, the inheritance would, according to the fifth rule have descended, dies before the purchaser, leaving issue, the issue of such ancestor in infinitum shall represent him, according to the same law of succession as before laid down with respect to the issue of the purchaser ; but with this addition, that those related by the whole blood to the purchaser are preferred to those related \ by the half blood : (1 Steph. Com. 373, et seq. 3rd edit.^ Q. — A man having had two sons, the elder of whom died before him, leaving two sons, dies intestate, seised in fee of gavel- kind lands, leaving issue the two grandsons (sons of his eldest son) and his second son. State the proper parties to convey to a purchaser. 'A. — ^Both the son and grandsons must join in the conveyance. For by the custom of gavel-kind the lands descend, not to the eldest son or his issue, but to all the sons together : (Will. Eeal Pro. 105, 4th edit.) Q. — A. dies, leaving two granddaughters, the issue of a deceased daughter ; a grandson, the issue of another deceased daughter ; and two daughters : to whom will his estates in fee simple descend ? A. — The estates will descend to the whole of them as coparceners, and the two granddaughters and the grandson ■will respectively stand in the place of and take their deceased parents' shares: (Will. Real Pro. 81, 383, et seq. 4th edit. ; Sug. Eeal Pro. Stats. 282, 283 ; 1 Steph. Com. 320.) Q. — A. dies without issue, leaving a father, and brother of the half blood, and a sister of the whole blood; upon whom would the estate have descended previous to the operation of the Inheritance Act, 3 & 4 Will. 4, c. 106, and upon whom would it descend subsequently to that period ? A. — Prior to the above statute the estate would in such a case have descended to the sister of the whole blood in preference, not only to the brother of the half M^j^g^ j9J?9wteMte)f^e'" •* ^o^" ^^ to the latter. CONVETANCING. 215 inheritances were compared to a falling body, and, therefore, could never ascend. By this act, however, the father is capable of being heir to his son, and in the case put will inherit in preference to' the sister of the whole blood or brother of the half blood : (1 Steph. Com. 376, 3rd edit. ; Will. Real Pro. 85, 4th edit.) Q. — The owner in fee of freehold and copyhold estate dies intestate, und without an heir ; who becomes entitled to the estates, and by what means technically expressed ? A. — ^The freehold estates will escheat (as it is called) to the lord of whom he held them. Bastardy is the most usual cause of the failure of heirs ; for a bastard is nullius filius, and can consequently have no brother or sister, or any heir except an heir of his body. The Crown most frequently obtains lands escheated, because the Crown was the original proprietor of all the lands in the kingdom. Copyhold estates also escheat to the lord of the manor on failure of heirs : (Will. Heal Pro. 102, 303, 4th edit. ; 1 Steph. Com. 403, 405.) Q. — If a person who is illegitimate dies intestate, leaving no legiti- mate issue, who becomes entitled to any real or personal estate of which lie may die possessed ? A. — ^Bastards are incapable of being heirs, being nullius filii, the sons of nobody. And as bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies, for as all collateral kindred consists in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred, and, consequently, can have no legal heirs but such as claim a lineal descent from himself. And, therefore, if a bastard purchases land, and ■dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee: (I Steph. Com. 403, 405.) The Crown, for the reasons before stated, most frequently obtains lands escheated : (Will. Heal Pro. 102, 4th edit.) The personal estate will, for the like reasons, be for- feited to the Crown ; and letters patent are procured from the Queen, and '] administration is granted to the appointee of the Crown : (2 Steph. Com. 241 ; Coote's Probate Ct. Pract. 94.) Q. — A man seised in fee dies intestate, and without issue, leaving a widow, a father and a brother ; who becomes entitled to his estate, and by what law ? A. — The father will become entitled to the estate (subject to the widow's right to dower, if not barred) by the statute 3 & 4 Will. 4, -c. 106, s. 6 : (see Will. Real Pro. 85, 4th edit. ; 1 Steph. Com. 376 ; 1 Hughes' Pract. Sales, 449, 2nd edit.) Q. — A. dies intestate, seised in fee simple, leaving one daughter (B.),^ a grandson by a deceased daughter (C.), a grandson and gi'and- daughter by a deceased daughter (D.), a granddaughter by a deceased son (E.), and two granddaughters by a deceased daughter (F.) ; to whom will A.'s real estate descend ? A. — The daughter of the deceased son (E.) will be entitled to the real estate of A. ; the rule being that the male issue and their descendants shall be admitted before the female ; (Will. Real Pro. 80, 85, 4th edit. ; 1 Steph. Com. 373.) Q. — A. dies seised £^di^^eW/i)^^SMm^' ""-^ '°*«'*'*^' ^'^^'°s 216 EXAMINATION QUESTIONS AND ANSWERS. his grandfather, and his (A.'s) mother, and a brother and sister him surviving ; which of these is his heir ? A. — His brother is his heir : (see "Will. Real Pro. 86, 4th edit. ; 1 Steph. Com. 376, 378.) Q. — A man dies unmarried, leaving his father and an elder brother him surviving ; which of these will be his heir-at-law ? A. — The father will be the heir-at-law of his son : (Will. Real Pro. «5, 4th edit.) TRUSTEES, EXECUTORS, &c. Question. — Can a trustee for sale become a purchaser ; in any, and ■what case ? Answer. — A trustee cannot purchase of himself, and he is not allowed . to become a purchaser of the trust property even at a sale by public auction. But, although a trustee cannot purchase of himself, he I s '. allowed jo purcl iasfi-fii om his cestui que provided there is a distinct ^and clear contract, ascertained to be such after a scrupulous and jealous ^examination of all the circumstances, and there is no fraud, no conceal- ment, and no advantage taken by the trustee of information acquired by him in the character of trustee : (Story's Eq. Jur. §§ 321, 322 ; 1 Hughes' Pract. Sales Real Pro. 232, 233, 2nd edit.) When an estate is vested in trustees upon trust for sale, and the trustee is desirous of becoming a purchaser, the only safe course is to file a bill for the purpose of carrying the trusts into execution under the direction of the court, and upon the sale apply to the court for leave to become the purchaser upon offering to give more than any other person ; (1 Hughes' Pract. Sales Real Pro. 234, 2nd edit.) Q. — When an estate is offered to a trustee at a price below its actual value, upon condition that the title should not be investigated, is the trustee justified, under the usual indemnity clause inserted in setttle- ments, in purchasing the estate out of the trust funds, at the request of his cestui que trust, upon those terms ? And give a reason for your answer. A. — There are certain things which either clearly appear in them- selves to be duties, or are established as such by the uniform policy of courts of equity, and to these the courts require a rigid adherence. But in regard to other points the trustee is only required to use customary •care and diligence. If a trustee invests money on unauthorized security, however unexceptionable it might seem to be, and such security after- wards fails, he will be liable ; and an indemnity clause, declaring that they shall not be liable for the insufiiciency, will not exonerate them from liability : (Smith's Manual of Eq. Jur. 164, et seq. 4th edit.) A trustee wlio commits a breach of trust is not protected, although at the request of his cestui que trust. It is impossible to pronounce that a trustee, whatever precautions he may take, is safe from personal risk, unless he has acted in the execution of the trust under the directions of the Court of Chancery : {id. 181, 182; and see hereon 22 & 23 Vict, c. 35, ss. 30 to 32.) party to the bill: (see Story's Eq. Jur. §§ 1039, 1040c, 1044, 1035, ' 1057; Smith's Man. 200, &c. 5th edit, ante, p. 137.) ^"-^"-^'^^'^a^c^ Q. — Mention some of the principal heads of equitable jurisdiction. A. — The following are some (^ the principal heads of equitable juris- diction : accident , mistake, fraud, trust s, admini^ration, specificjger- formance'of -agreements, injuncnons, ele ction and disc&very : (see Story's Eq. Jur. ; Smith's Man. Eq. 5th edit.) Q. — In what cases has equity jurisdiction exclusive of the common law ? A. — The C. L. P. Act of 1854 has very much narrowed the exclusive jurisdiction of the court of equity. But the Court of Chancery still retains exclusive jurisdiction over accident and mistake, uses and trusts, granting specific performance in matters of contract not comprising a public duty (see hereon Benson v. Paull, 27 L. T. Eep. 78) ; pex-petuating testimony where there is no actual litigation ; granting the mortgagee's right of foreclosure, or enforcing a mortgagor's right of redemption where the right is gone at law; by bills of peace to establish and perpetuate in favour of, or against, a number of persons, some general or private right, which, from its nature, is likely to be established or overthrown by diffe- rent persons at different times; also, in the guardianship of infants, idiots, lunatics, married women, and other persons, under disabilities : (see Hallilay's Articled Clej-k's Handbook, 33.1 Digitized by ^igrosoft® 226 EXAMINATION QUESTIONS AND ANSWERS. Q. — In what cases has it concurrent jurisdiction? A. — Courts of equity and common law have concurrent jurisdiction in compelling the specific performance of contracts comprising a public duty ; in enforcing the delivery up of specific chattels ; in granting injunctions; and in compelling a discovery. Courts of common law may also entertain equitable defences: (see ib.) Q. — In what cases has it auxiliary jurisdiction ?(a) tMt^ Mo]/U tLtr-' A. — A Court of Chancery cannot now be said to have auxiliary juris- diction to a court of common law in any case, for both courts may Q. — ^In what cases have courts of equity no jurisdiction, or decline to exercise it ? A. — Where it is clear that courts of law did always afford adequate and complete relief without the aid of a court of equity, and without cir- cuityof action and multiplicity ^f_^uitSj and could take due care of the rights of ail persons interested in the property in litigation, courts of equity have no jurisdiction : (Smith's Man. Eq. Jur. 12, 4th edit.) Courts of equity decline to exercise their jurisdiction in cases where one party has no more equity than another (Story's Eq. Jur. § 64 c), or where both parties are in pari delicto, unless public policy would be promoted by such interference (id. §§ 298, 303, 304), or where, under the circum- stances, complete justice would not be^done : (id. § 895, et seq.) Q. — State some of the maxims or rules which govern or indicate the principle of equity jurisprudence. A. — Amongst the maxims of equity jurisprudence may be ranked the following : Equity will not suffer a right to be without a remedy. Equity follows the law. Equity delighteth in equality. It is a maxim that, viyilanlibus, non dormientibus, mquitas subvenit : the meaning of which is, that equity discountenances laches. Where there is equal equity the law prevails. He wJio seeks equity must do equity. Equity looks upon that as done which ought to be done : (see Story's Eq. Jur. § 63, etseq.; Smith's Man. Eq. Jur. 10, et seq. 5th edit.) Q. — Selden hath said, " For law we have a measure and know what to trust to. Equity is according to the conscience of him that is Chan- cellor, and, as that is larger or narrower, so is equity." Is this an accui'ate description of equity as administered in our courts? State the grounds of your opinion. A. — The opinion of Selden is not an accurate description of equity as administered in our courts at the present time, whatever it may have been formerly, for, as before seen, there Sre certain principles on which courts of equity act, which are very well settled. The cases which occur are various ; but they- are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law : (see further supra.") Q. — Will a party, who has attested the execution of a deed, be held by a court of equity from that circumstance to be affected with notice of the contents of such deed ? (a) This and the two preceding questions iave also been asked to this effect : Q. Men- tion, first, what matters arenoi comprised jYithin the scope of the common law ; and, secondly, the kinds lately con^giUZ^dtWe^aJmSStQflMter. { 1 ^ / EQuirr. 227 A, — ^The better opinion is that, being a witness to the execution of a deed will not of itself be notice; for a witness, in practice, is not privy to the contents of the deed : (see Sug. V. & P. Cone. View, 614, and the cases there cited.) Q. — State some cases in which a party, not having actual notice, will be held to have constructive notice, so as to affect him in a court of equity the same as if he had received actual notice. -4.— It has been a long-established rule in equity that notice to the agent is notice to the principal, since it would be a breach of trust in the former not to communicate the knowledge to the latter. It is also a rule, that whatever is suflScient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circumstances and persons), is, in equity, held to be good notice to bind him. Thus, notice of a lease will be notice of its contents. So, notice of a deed which recites another deed, will be constructive notice of the latter deed. But vague and indefinite rumour or suspicion is too loose to be admitted in practice as suflScient. But there will be found infinite grades of pre- sumption between such rumour, or suspicion, and that certainty as to facts, which no mind could hesitate to pronounce enough to call for fur- ther inquiry, and put a party upon his diligence : (see Story's Eq. Jur. §§ 399, 400, 400 a, 408 ; 2 Hughes' Pract. Sales, lU, et seq. 2nd edit.) Q. — Define the principles which guide the courts of equity in the construction of wills ? A. — In deciding on the validity and interpretation of purely personal bequests, courts of equity implicitly follow the rules of the civil law as formerly recognised in the ecclesiastical courts, and now in the Probate Court, but, as to the validity of devises and legacies charged on land, they generally follow the rules of the common law : (see Story's Eq. Jur. §§ 602, 608 ; Smith's Man. Eq. Jur. 94, 95, 5th edit.) And all courts, as far as possible, in the construction of wills, are guided by, and try to carry out, the intention of the testator : (see ante, p. 170.) Q, — "When there are two clauses absolutely inconsistett with each other, which clause prevails, the first or the last ; and is this rule the same in both deeds and wills, and, if different, in what particular ? A. — As a general rule, in a deed where there are two clauses or limita- tions inconsistent or repugnant with each other, the former clause is allowed to prevail, though its effect would be to annihilate the latter one altogether ; as if a grant were to be made to A. and his heirs in the premises, and by the habendum the limitation was to be restrained to his life, the habendum would be rejected as repugnant to the estate of inhe- ritance conferred on him by the premises, which a subsequent clause would not be permitted to divest. But the habendum may explain what par- ticular kind of heirs were intended, without .being considered repugnant to the grant : (1 Hughes' Pract. Sales, 29o, 2nd edit. ; and see Burton's Com. pi. 512, 601.) In the case of wills, where two parts are repug- nant, so that they cannot both take effect, the general rule is that the latter clause shall prevail, as implying a change in the testator's mind : (Burton's Com. pi. 601, 602 ; 1 Hughes' Pract. Sales, 297, 2nd edit.) Q- — 'Will a court of equity interpose where one party has no more equity than another, or will it leave the parties to their remedy at law ? A. — It is a maxim, that where the equities are equal, the law prevails. Digitized b^Mi(Stosoft® 228 EXAMINATION QUESTIONS AND ANSTTEKS. They will, therefore, be left to their remedy at law: (Story's Eq. Jur. § 64 c. ; Smith's Man. Eq. Jur. 19, 5th edit.) Q. — In what cases is it necessary to resort to a court of equity, in support of a right which can be established only through a court of law ? A. — If any discovery was necessary before the right could be esta- blished at law, the party seeking it would formerly have been compelled to have had recourse to a court of equity ; but now the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125), has given to the courts of common law a power of compelling discovery on the application of either party, either of documents in their possession or power relating to the matter in dispute, or of facts in their knowledge, leave being first obtained : (ss. 50, 51, and ante, pp. 68, 226.) Q. — Are there any cases in which a remedy is afforded both at law and in equity ? If so, enumerate some of them. State any instance in which, on account of the more efficient nature of the equitable remedy, the common law proceeding has fallen into disuse. A. — ^As already seen {ante, p. 226), courts of common law are pro- vided in certain cases with remedies which could formerly only be exer- cised by a Court of Chancery : as power to grant injunctions, to compel discovery, and also for the specific delivery up of chattels : (17 & 18 Vict. c. 125.) In cases of administration account, &c a remedy might have been had both at law and in equity. But the old action of account has fallen into almost entire disuse, in consequence of its inconvenience and inadequacy as a remedy : (Story's Eq. Jur. § 442 ; Smith's Man. Eq. Jur. 184, 219, 5th edit.) Q. — State some of the cases in which a court of equity will set aside a deed or contract. A. — Equity will set aside deeds or conti-acts where they are fraudu- lently obtained, as where they are obtained from idiots or lunatics, or ^ from persons excessively drunk or under extreme terror, &c., or where ths_.triuisaiJaoiL_is_usu£ioj;s_: (Story's Eq. Jur. § 230, 301; Smith's Man. Eq. 58, 324, &c. 5th edit.) Q. — What is a meritorious consideration, and will it support a contract in equity ? A. — A meritorious consideration is one which does not consist of money payment, but arises from natural love and affection ; as for an already taken wife. It is now settled that a contract founded on merely a meritorious consideration will nO- L support a TOntract in equity : (Story's Eq. Jur. § 393 b ; 27 L. T. 124; Smith'TManTlEq. Jur. 192, 5th edit.) Q. — State some cases in- which courts of equity will support a volun- tary conveyance ; and in what cases the court will set such a conveyance aside, and when will the court refuse to interfere. A. — ^If the conveyance is complete, so that no act remains to be done to give fuU effect to the title, equity will enforce it against the party making or creating it, and his representatives, although it be merely voluntary : (Smith's Man. Eq. Jur. 192, 5th edit.) But the court will set such a conveyance aside in favour of a bona fide purchaser for valu- able consideration, or in favour of the creditors of the party, if he was indebted at the time D^g^fifziBSfo/yi/Jfefe^ff®- View, 565 ; Smith, ubi EQUITT, 229- sup.) If there are two voluntary coaveya'^cGS, and each is bona fi.de,„ equity wlinot mterfere : (Story's Eq. Jur. § 433 ; Smith, uhi sup.) Q. — ^A. gives a bond to B. to secure payment of a debt, the bond is lost ; has B. any, and what, means to compel the payment of it ? A. — A person may come into a court of equity for the payment of a lost bond J because, until a recent period, no relief was given at law on account of the want of a profert. And it is often proper to grant relief upon the terms of the party giving a bond of indemnity, and a court of law cannot insist on such a bond as part of the judgment : (Story's Eq. Jur. §§ 81, 82 ; Smith's Man. Eq. Jur. 37, 5th edit.) Q. — In what cases can a bill be filed for the delivery up of specific chattels to the owners ? A. — The court will notj^ ordinarily, entertain biUs for the specific delivery up of chattels. "But where the chattel is of such a nature that the loss could not be fuJly compensated for by damages, the court will decree a specific delivery thereof ; as where the chattel is a family relic or heirloom, such as ancient gems, medals, or coins : (Story's Eq. Jur. §§ 708, 709 ; Smith's Man. Eq. Jur. 353, 5th edit.) Q. — How many years' arrears of annuity can an annuitant recover according as the annuity may be secured by charg e only on real estate, or by the limitation of an estate for a term of years to a trustee for securing the annuity, or by covenant only ? A. — If the annuity is charged on real estate, only six years ' arrears* can be recovered, although the time within which the claim to the an- nuity itself may be preferred is twenty years. Annuities charged on land are governed by the statute 3 & 4 Will. 4, c. 27 : (see Browell's 5Real Pro. Stats. 61, 62, n.) If an annuity is secured by a covenant, then, as against the covenantor, twenty years' arrears may be recovered ; these cases being governed by the statute 3 gs 4 Will. 4, c. 42 : (see sect. 3, Browell, supra.) Q. — State the difierent disabilities by which a person may be hindered from suing in courts of equity, and the distinguishing characters of these disabilities. A. — The following persons cannot institute a suit in their own names: an infant, or married woman, idiots and lunatics. This is done, in the first instance, for their protection ; for, as to infants, and lunatics and idiots, they are generally treated as having no capacity to bind them- selves, from the want of sufficient reason and discernment of under- standing ; and as to married women, they are considered, for most part, as merged in the husband, and, in the next place, to prevent injustice, for, as a suit cannot be instituted against them, it would be unjust to allow them to institute suits against others, when they are not liable for their own acts, for the remedy ought to be mutual. So, if full relief could always be had at law, equity has no jurisdiction ; or if both parties- are in pari delicto, it will not interfere. Digitized by Microsoft® 230 EXAMINATION QUESTIONS AND ANSWEES. ACCIDENT AISTD MISTAKE. Question. — Will a court of equity relieve against the defective execution of a power, and on what general principles ? Ansioer. — In the absence of any countervailing equity, relief will be granted by a court of equity in the case of a defective execution of a mere power, where the defect is not of the very essence of the power, and the defective execution is in favour of a charity, or of purchasers, creditors, or a wife, or a child ; and the defective execution was occasioned by accident : (see Story's Eq. Jur. § 94, et seq. ; Smith's Man. Eq. Jur. 38, 39, 5th edit.) Q. — ^Will equity relieve against acts performed under mistaken notions of law ? A. — In regard to mistakes in matters of law, it is a maxim that ignorantia legis non excusat : (Story's Eq. Jur. § ill.) But wjien the mistake is one of title, arising from ignorance of a principle of law, of such constant occurrence as to be understood by the community at large, this is considered sufficient to give- rise to a presumption that there has been some undue influence, misrepresentation, imposition, mental incom- petency, or surprise, and so to entitle the party to relief : (Story's Eq. Jur. § 121, et seq. ; Smith's Man. Eq. 41, 5th edit.) Q. — Will equity relieve against mistaken information of facts ? A. — ^In regard to mistakes in matters of fact, relief will be granted on the presumption of any of the above circumstances where the mistake is u^latfiEaL.and the fact was material to the act or contract, and was not doubtful from its own nature, and was a fact which would pot be ascer- tained by such diligence or care as is usual in transactions of the like nature, and of which the party was under a legal obligation to inform the mistaken person : (Story's Eq. Jur. § 140, et seq. ; Smith's Man. Eq. 41, 5th edit.) Q.— If, in a will or settlement, the usual power to appoint new trustees has been omitted, will a court of equity remedy the inconvenience ; and, if so, in what way ? A. — Yes ; the court will appoint new trustees : (see Story's Eq. Jur. - tit. " Mistake," §§ 1060, 1282.) And by the 13 & 14 Vict. c. 50, s. 32, it is 7 enacted, that whenever it shall be expedient to appoint a new trustee or "trustees, and it shall be found inexpedient, difficult, or impracticable so *^o do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chancery to make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or' trustees. The application under this act may be made by petition. And see 1st Order, April 22, 1850. Q. — ^If an estate be sold for a certain sum of money and an annuity for the life of the vendor, and the vendor dies before the receipt of any of the annuity, will equity grant his representatives any relief ? A. — No ; equity will not grant any relief to the vendor's representa- tives : (Story's Eq. Jur. § 104 ; Smith's Man. Eq. 33, 5th edit.) Digitized by Microsoft® EQUITY. 231 FRAUD. Question. — ^What will amount to fraud in a purchaser in not apprising the vendor of any advantage of which the latter is ignorant ? Answer. — A purchaser is not bound to communicate his knowledge of the value of the property to the vendor ; for it is the business of the vendor to know the value of his own property. Nor is mere inadequacy of price, or any other inequality in the bargain, sufficient to avoid it. Still, however, there may be such an unconscionableness or inadequacy in the bargain as to shock the conscience, and amount to conclusive evidence of imposition, &c. ; and in such a case courts of equity ought to interfere on the ground of fraud. And where there are other ingredients of a suspicious nature, gross inadequacy must furnish the most vehement pre- sumption of fraud. But if a purchaser is under a legal or equitable (not moral) obligation to communicate to a vendor an advantage of which the latter is ignorant, and he does not, this amounts to fraud, and for which equity will grant relief : (see Story's Eq. Jur. §§ 205, 207, 244, 246, 251; Lord St. Leonards' Handy Book, 27, 6th edit.) Q. — What relief will a court of equity give in case of a contract obtained by fraud ? A. — When a contract has been obtained by fraud, specific performance will not be enforced. And the party injured may, unless the contract "be clearly illegal oil the face of it, file a bill to have it delivered up to be cancelled : (Story's Eq. Jur. §§ 439, 694, et seq. ; Smith's Man. Eq. 58, et seq, 5th edit.) Q. — ^If A. obtains the conveyance of an estate from B. by fraud, and A. sells the estate to a purchaser, will equity relieve B. and set aside such conveyance, and annul the sale to the purchaser ? State in what case the court would, or would not, do so. A. — Equity will give B. priority over the purchaser, if the purchaser had notice, actu al or constructive, of thg fraud (Story's Eq. Jur. §§ 409, 410) ; unless, in3ee37B. also knew^f the transaction between A. and the purchaser, and permitted it to be completed : {id. § 385 ; Smith's Man. Eq. 75, (fee. 5th edit.) ; Q. — When is a conveyance of property deemed fraudulent as against creditors or purchasers ; and what is the effect of such a conveyance as respects the party making it ? A. — All voluntary conveyances are declared void as against bona fide purchasers for valuable consideration, and also against then creditors : (13 Eliz. c. 5 ; 27 Eliz. c. 4 ; 1 Hughes' Pract. Sales Real Pro. 223, et seq. 2nd edit.) The party making a voluntary conveyance does not by so ■doing prevent himself from disposing of the property to a bona fide purchaser : (Story's Eq. Jur. § 425, &c. ; Smith's Man. Eq. 83, 84, 192, 3rd edit.) Q. — Is or is not inadequacy of price, or inequality of bargain, a suffi- cient ground of itself for avoiding a contract in equity ? \ A. — Mere iijadequacy of price, or other inequality of bargain, is not of itself sufficient to avoid, a. contract .in equUx. except in the case of 232 EXAMINATION QUESTIONS AND ANSTVTEES. .exEfictant heir?,. Sto. : (Story's Eq. Jur. §§ 244, 246, 339, et seq. ; "Smmfrmn.lSqril, 72, Sth edit.) (a) Q. — What does the court of equity usually require to establish the validity of a purchase from an expectant heir ? A. — Either a fair consideration to be paid or that the bargain be made known to and approved by the person to whose estate the expectant hopes to succeed. And it seems that in the latter case such person should be in a position to be able to relieve the expectant from his difficulties, in order to give the bargain validity : (see Smith's Man. Eq. 71 to 73, Sth edit.) Q. — Are there any, and what, cases of fraud against which equity wUl not relieve ? A. — Relief will not be granted when both parties are truly in pari delicto ; for the maxim is, that in pari delicto potior est conditio defen- dentis et possidentis : (Story's Eq. Jur. § 298.) An exception occurs, however, where public policy would thereby be promoted ; as in the case of a gaming security, which is void, and money paid on it may be recovered back : (ib. §§ 303, 304, 298 ; Smith's Man. Eq. 325, Sth edit.) So, relief will not be granted if the parties cannot be placed in statu quo : (ib.) Q. — What is the rule in equity as to time, barring, or not barring, relief against fraud ? ^.— The 26th section of the 3 & 4 Will. 4, c. 27, enacts that in every case of concealed fraud, the right of any person to bring a suit in equity for the recovery of land or rent will be deemed to have first accrued at, and not before, the time at which such fraud shall, or with reasonable diligence might, have been first known or discovered. But if the lands have got into the hands of a bona fide purchaser for valuable considera- tion, without notice of the fraud, no suit will lie for their recovery against the purchaser : (sect. 26 ; Sug. Ileal Pro. Stats. 102.) Therefore, in cases of concealed fraud, time is no bar, in equity, until the fraud is disco- vered : (see Browell's Real Pro Stats. 4S.) Q. — Will a court of equity recognise any period of time as a limita- tion to a suit against a trustee who is charged with fraud in the execu- tion of his trust ? A. — A cestui que trust is not barred from his claim for a breach of trust by any period of time, so long as the relation of trustee and cestui que trust, under an express trust, is acknowledged to exist : (Story's Eq. Jur. § 1520 ; Smith's Man. Eq. ] 23, Sth edit. ; Browell's Real Pro. Stats. 44.) But if he has acquiesced for a long time in the misconduct of his trustee, with a full knowledge of it, a court of equity will not relieve him : (Story's Eq. Jur. § 1284 a. ; Smith's Man. Eq. 124, Sth edit.) Q. — Does the court impose any, and what, terms upon a plaintiff seek- ing to set aside a usurious contract ? A. — In cases of usury, if the borrower comes into a court of equity seeking relief against the contract, the court \vill interfere only on the terms that the borrower will do equity by paying the lender what is (o) But although this is the case, yet equity will not, generally, enforce an agreement ■where the price is not fair and adequate: (see Fahke v. Gray, 33 L. T, Rep. 297 j and see hereon La^ Tir^, "^"^l^iM-e^S'b^MMtk® EQUITY. 2133 really due to him, deducting the. usurious interest : (Stoi-y's Eq. Jur. § 301; Smith's Man. Eq. 22, 325, 5th edit.) Q. — In construction of the Registry Acts, whereby a registered deed takes priority of one unregistered, whiit- relief will a court of equity afFordy if the party knew of the. unregistered deed?' A. — ^In such case, the title of the party registering, with notice of the ■prior unregistered deed, will be postponed, and made subservient to the title of the party whose deed is not registered. For the object of the Registry Acts is only to secure subsequent purchasers and mortgagees against prior secret conveyances and incumbrances : (see Story's Eq. . Jur. § 397; Sug. V. & P. Cone. View, 578; Smith's Man. Eq. 81, otli edit.) Q. — State what contracts and conditions in restraint of trade are void, iind in what cases such contracts and conditions may be enfolrced. A. — All contracts and conditions in general restraint of trade are ■void, as tending to discourage industry, enterprise and just competition. 3But a person may be restrained from carrying on a trade in a particular place, or with particular persons, or for a reasonably limited time. And a person may lawfully sell a secret in his trade or business, and restrict himself from using the secret: (Story's Eq. Jur. § 292; Srnith's Man. Eq. 63, 6th edit.) TRUSTS AND TRUSTEES. Question. — Define a trust. Answer. — A trust, when used in the sense of an interest, is the equit- able or beneficial interest or ownership of or in real or personal estate, existing apart from, and collateral to, the legal interest or ownership : (see Smith's Man. Eq. Jur. 96, 5th edit.; ante, p. 131.) Q. — State the different kinds of trusts recognised in our courts of ■equity; and in what respect the legal differs from the equitable interest in the subject-matter of the trust. A — Trusts are either express, im^ljedi-Oi" gSH§t?H£iJV?-- The person who has the legal interest in the subject-matter of the trust holds the -direct and absolute dominion over the property in the view of the law ; whilst he who has the equitable interest (called the cestui que trust) is entitled to the income and profits, or beneficial interest in the property: CStory's Eq. Jur. § 964 ; Smith's Man. Eq. 99, 5th edit.) Q. — ^Define trusts executed and trusts executory; and state if there is any, and what, difference in their construction. A. — Trusts executed are those which are formally and finally declared by the instrument creating them. A trust executory is a trust raised by a stipulation or direction to make a settlement or assurance to uses, or upon trusts, which do not appear to be formally and finally declared by the instrument creating such stipulation or direction: (Smith's Man. Eq. Jur. 100, 2nd edit.) Trusts executed are construed in the same .manner as similar limitations of legal estates and interests would be con- strued in courts of. law; so that, for example, what would create an ■estate tail in one case will create one in the other. But trusts executory .are not construed so strictly as the former, but more according to the presumable intention ^/^^feggf te/5/[9^/gg0/?^ where a testator devises 234 EXAMINATION QUESTIONS AND ANSWERS. real estate to ti-ustees to convey it to certain uses, the wishes of the tes- tator are not to be carried out by a strict and literal adherence to the terms of the will, so as to render the direction to convey and settle nuga- tory: (see Smith's Man. Eq. Jiir. 14, et seq. 5t]i edit. ; 1 Hughes' Fract. Sales Ileal Pro. 345, et seq. 2nd edit.) Q. — ^If a man conveys an estate to trustees upon trust to sell, and pay Lis debts, will a court of equity, upon a bill by a creditor, compel the performance of the trust ? A. — If a debtor voluntarily conveys property in trust for the benefit of his creditors, to whom the conveyance is not communicated, and the creditors are not in any manner privy to the conveyance, the deed merely operates as a power to the trustees, and is revocable by the debtor, and has the same effect as if the debtor had delivered money to an agent to pay liis creditors, and before any payment made by the agent or com- munication by him to the creditors had recalled the money delivered : (see Story's Eq. Jur. § 1036 b, and Acton v. Woodgate, 2 Myl. & K. 492, there cited; Smith's Man. Eq. 115, 116, 5th edit.) Q. — If one trustee receives trust money, and bands it over to his co-trustee, are both, or which, of them liable ? ^.— They will both be liable: (Story's Eq. Jur. § 1284; Smith's Man. Eq. 166, 5th edit.) Q. — What is the rule in equity as to the purchase by a trustee of the trust estate ; and what course would you advise on behalf of a trustee- purchaser in order to assure his title and prevent any after impeachment of it? A. — A trustee cannot purchase of himself, and he is not allowed to become a purchaser of the trust property even at public auction : (Sug. V. & P. Cone. View, 48, 543 ; 1 Hughes' Pract. Sales Real Pro. 232, 233, 2nd edit. ; and see Story's Eq. Jur. §§321, 322.) When an estate is vested in trustees upon trust for sale, and a trustee is desirous of becoming a, purchaser, the only safe course is to file a bill for the purpose of carrying the trusts into execution under the direction of the court, and apply to become a purchaser on offering to give more than any other person : (1 Hughes' Pract. Sales Real Pro. 234, 2nd edit.; and see Adams on Eq. 60 ; ante, p. 216.) Q. — A. purchases and pays for a freehold estate, which is conveyed by the vendor to B. C. purchases and pays for Government stock, which is transferred into the name of D. Is there a resulting trust in both or either of these cases in favour of A. or C. upon simple proof of the payment of the purchase money by him ? (a) A. — If A. purchases and pays for a freehold estate, which is conveyed by the vendor to B., the trust of the legal estate results to A. And, although the person in whose name the conveyance is taken executes no declaration of trust, yet a trust will result, and may be proved by parol evidence even after the death of the nominal purchaser. But, unless the trust arises on the face of the deed itself, the proofs must be very clear; and it seems very doubtful whether parol evidence is admissible against the . answer of the trustee denying the trust: (see Sug. ,V. & P. Cone. View, 556 ; Story's Eq. Jur. § 1 20 1 and note ; Smith's Man. Eq. 145, 5th edit.) Si, if C. purchases and pays for Government stock, which . (a) Also atfced time : If a person purchases land or securities in the name of another, being a stranger, what is the '''^J/^fjB jWlj^fM^Prtegf//^ '' lj« enforced? KQUiTr. 23 5 is transferred into the name of D., there is a resultinp; trust in favour of C, and a parol declaration is admissible as evidence (jf the intention of the party advancing the money ; and this beint; a trust of personalty, was never within the Statute of Frauds, or the doctrine of resulting trusts under the statute : (see I Myl. & K. 506 ; Smith's Man. Eq. Jur. 145, oth edit.) But if a man delivers money or transfers stock to another, even though he be a stranger, no implied trust will arise unless upon evidence: (Smith's Man. Eq. 145, 146, 5th edit.) Q. — Can a trustee delegate a power to give receipts ? A. — A trustee empowered to give receipts cannot lawfully delegate such power ; and every trustee who has accepted the trust must join in the receipts : (see Vinei/ v. Chaplin, 31 L. T. Eep. 142; Sug. V. & P. Cone. View, 516 to 527.) Q. — The Court of Chancery' prohibits persons filling certain characters from becoming purchasers ; name the principal of such characters and the ground upon which the prohibition is founded. A. — Generally speaking, trustees who have accepted the trust, agents^ commissioners of bankrupts, assignees of bankrupts, solicitors to tire commission, auctioneers, creditors who have been consulted on the mode of sale, counsel, or any person who, by being employed or concerned in the affairs of another, has acquired a knowledge of his property, are incapable of purchasing such property. For, if persons having a confi- dential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their informa- tion, and not to exercise it for the benefit of the persons relying on their integrity. The characters are inconsistent : (Sug. V. & P. Cone. View, 543, 544.) Q. — ^When a trustee invests part of the trust property on a security not within his authority and makes a profit, and in other like invest- ments sustains a loss, how is the account to be taken ? A. — ^If the trustee makes a profit by investing the trust property, it will belong to the cestui que trust, for it is a constructive fraud upon the latter to employ the property contrary to the trust : (Story's Eq. Jur. §§ 465 and note, 1261.) But if any loss should arise in consequence of a violation of the trust, the trustee will be liable to make good the deficiency. He cannot set off the profit against the loss : (Story's Eq. Jur. §§ 1269, 1273, 1274 note, 1277 ; Smith's Man. Eq. 171, &c. 5th edit.) Q. — Are trustees, as such, entitled to any, and what, allowance for expenses or loss of time, or either of them ? A. — ^Trustees and other persons standing in a similar situation are not allowed any remuneration for their services without some express or implied provision for that purpose. But trustees are entitled without any express provision to defray out of the trust funds expenses legiti- mately and properly incurred : (Smith's Man. Eq. Jur. 163, 5th edit.) Q. — State the principle upon which the Statute of Limitations cannot be pleaded by a trustee in bar to the claim of his cestui que trust. A. — ^The principle upon which the Statute of Limitatinns cannot be pleaded by a trustee is, that time will not run_ against_ an express trust : '^•" (see Smith's Man, Eq.' Jur. 123, ei seq. 5th edit.) - Q. — ^To a bill filed by a cestui que trust, is the trustee a necessary party? ' • ^.-Yes ; the trustee^^^t^|e^ad^^artj^@ 236 EXAMINATION QUESTIONS AND ANSWERS. .o ^», ubi supra ; Story's Eq. Jur. § 1075, etseq. ; Smith's Man. Eq. Jur. 304,. 5th edit.) Q. — In what case is a legacy in money to a creditor of the testator considered in equity to be an extinguishment of the debt ? A. — A legacy given to a creditor, if it is. of eq ual am ount to the debt, and in other respects equally beneficial, will, in general, in the absence oTcountervailing circumslahces, be deemed to be a satisfaction of the debt, on the principle that a testator shall be just before he is generous. If, however, there i s an express p ro vision in the will for payment pF d^btSj this rule does not prevail ; nor where t he gift ia -of a_regiclue. nor where the (j^ht ig ;i. ippgnti>ih1e sffnnrjty ; (Story's Eq. Jur. §§ 1119, 1120 J Smith's Man. Eq. 314, 5th edit.) Q. — A father bequeaths to a child a legacy of 1,0001., and afterwards, in his lifetime, gives to the same child a portion of 1,000/. ; on the father's death can the child claim the legacy, and would it be the sam.e if the legacy was a gift of the residue only ? A. — In the absence of evidence to the contrary, the portion given to the child, by the father, in his lifetime, will be deemed a satisfaction or ademption of the legacy. The ground of this doctrine is, that the legacy given by the parent to the child is presumed to be intended as a portion, and if he afterwards advances the same amount to the same child, he does it to accomplish his original object — as a portion. But this rule does not apply to a gift of the residue, which is always changing in amount: (Story's Eq. Jur. §§ 1111, 1112; Smith's Man. 311, 312, 5th edit.) ^. .^. ,, ... ^^ ' Digitized by Microsoft® KQCiTr, 245' Q. — ^Is the ademption of a legacy applicable to strangers as well as to- children ? A. — The doctrine of the constructive ademption of legacies has never been applied to legacies given to mere strangers, unless under some peculiar- circumstances : as where the legacy is bequeathed for a particular pur- pose, and a portion is afterwards given by the testator by an act infer vivos exactly for the same purpose, and for none other. The reason com- monly assigned for this doctrine is, that in the case of a legacy to a stranger the legacy is a mere arbitrary gift, unconnected with any con- sideration of duty or parental affection ; and there is no reason why a person may not be entitled to as many gifts as another may choose to- bestow upon him : (Story's Eq. Jur. §§1117, 1118 ; Smith's Man. Jur. 312, 5th edit.) Q. — From what time does the interest of a legacy given by a parent to his child commence ? A. — Whenever a legacy is given by a father to his child, as a provi- sion for such child, though payable at a future day, the child has a right to the interest of the money from the testator's death : (Smith's Man.. Eq. Jur. 93, 5th edit ; AUnutt's Pract. Wills & Adms. 335, 3rd edit.) Q. — Is a pecuniary legatee entitled to interest; and, if so, from what time, and at what rate of interest, where no time or rate of interest is- mentioned in the will ? A. — The legatee is entitled to interest, at 41. per cent., from a year after the death of the testator, when no time or rate of interest is fixed by the will : (see AUnutt's Pract. Wills & Adms. ubi supra.) Q. — Where a legacy is charged on real and personal estate, and the legatee dies before the day of payment, how is the legacy treated ? A. — It is a well-established rule, that where a legacy given to a party is charged upon both real and personal estate, or on realty only, and the time of payment has respect to the legatee personally, and not the estate or convenience of the owner, as where it is given to a legatee at twenty- one or marriage, the legacy, so far as it is charged on the realty, lapses by reason of the death of the legatee before the day of payment, and the personal estate only remains charged. But where the legacy charged on the real estate has regard to its postponement to the estate itself, or its owner, and not to the legatee, the rule is different, and the legacy does not lapse by the death of the latter before the time of payment : (see Goldsmith's Eq. Pr. 190, 191, 4th edit. ; Smith's Man. Eq. 92, 5th edit.) Q. — What is the effect of the Statute of Limitations on a legacy? A. — ^A legacy cannot be recovered but within twenty years next after a present right to receive the same has accrued to some person capable of giving a discharge for or release of the same, unless in the mean time some part of the principal money, or some interest thereon, has been paid, or some acknowledgment of the right thereto shall have been given in writing, and signed by the person by whom the same shall be payable or his agent ; in such case, the time runs from such payment or acknow- ledgment, or the last of them, if more than one. And only six years'' arrears of interest on the legacy can be recovered : (see 3 & 4 Will. 4, c. 27 ; Sug. Eeal Pro. Stats, 116, 131 ; Browell's Real Pro. Stats. 57, et seq.) Q. — Define a specific legacy and a general legacy, and state whether. Digitized by Microsoft® 246 EXAMINATION QUESTIONS AND ANSWEES. in case of a deficiency of assets, specific legacies can be required to abate ? A. — A legacy is said to be specific when it is a gift of a specified part of the testator's property, which is so distinguished (Allnutt's Pract_ Wills. & Adms. 312, 3rd edit.) A general legacy is not so distinguished. Thus, the bequest of a diamond ring is a general legacy, and will b& satisfied by the delivery of any diamond ring ; but a bequest of " the diamond ring presented to me by A." is a specific legacy, and can only be satisfied by the delivery of the particular ring. If there is not enough to pay all the debts and legacies in full, general legacies must abate p'-n- portionably ; but specific legacies do not abate at all, except for pay- ment of debts, if there is not enough without them : (Matthews' Guide to Exors. & Adms. 180, 181, 2nd edit. ; Allnutt's Pract. Wills. & Adms. 313, 321, 3rd edit.) Q. — If a legacy is given on condition that the legatee shall not dispute the will, what will a court of equity decree ? A. — That he be put to his election ; he cannot claim the legacy and dispute the will: (1 Hughes' Pract. Sales, 378, 380, 2nd edit.; see also PFriffht V. Wilkin, 33 L. T. Eep. 277.) Q. — By what summary process can a legatee, or creditor, or next-of- kin of a deceased person procure the administration of his real or per- sonal estate ? A. — Any person claiming to be a creditor, or a specific pecuniary or residuary legatee, may obtain, without bill fjr rhiinr filed, or any other preliminary proceedings, a summons from the Master of the Rolls, or any ofTEe^Vice-Chancellors, requiring the executor or administrator to attend before him at chambers, to show cause why an_Qrder for the administratioa, of the personal estate of the dece iiafid should not be granted ; and upon proof of service, or on appearance, and upon proof of such other matters as the judge may require, such judge may make the usual order for administration, which shall have the eifect of a decree made on the hearing of a cause : (15 & 16 Vict. c. 86, s. 45.) So, any person claiming to be a creditor of any deceased person, or interested under his will, may obtain, in a similar manner, an order for the admin- istration of the real estate of a deceased person, vv jiere^the whole of such_ real estate is by devise vested in trustees empowered by the^wnrtoselTsuch i'eal'esfaire, and give receipts for the rents and profits, and the produce Of the sale thereof : (sect. 47 ; Ayck. New Ch. Pr. 439 ; ante, p. 242.) Q. — If an annuitant under a will dies before the day of payment, is any portion of the annuity payable in that case, and under what authority ? A. — The annuity will be apportioned so that his representatives will be entitled to a proportion thereof according to the time which has elapsed from the commencement or last period of payment (as the case may be), under the authority of the statute 4 Will. 4, c. 22 : (sec All- nutt's Pract..Wills & Adms. 245, 246, 3rd edit. ; Browell's Real Pro. Stats. 174.) Q. — What relief does equity give to a legatee when the executor withholds payment of the legacy ; and what takes place if the executor does not admit assets ? A. — On the legatee applying to a court of equity, the executor will be decreed to pay the legacy. If the executor does not admit assets, equity Digitized by Microsoft® ^ ^ EQTJITT. 247 -will compel a discovery and account : (see Story's Eq. Jur. §§ 534, 535, 591 to 593, 602 ; Matthews' Guide to Exors. & Adms. 316, 2nd edit.) Q. — Is aii executor liable in equity to make good a loss arising from acts done by him not authorised by the will creating the trust ? A. — Yes ; the executor will be liable to make good the loss : (see Smith's Man. Eq. Jui-. tit. 11, ch. 7, 5th edit.) Q. — May an executor file a bill before he has obtained probate ; and, if •60, in what stage of the suit must he obtain it ? A. — An executor may file a bill before obtaining probate ; but he must obtain it before the suit is brought to a hearing : (AUnutt's Pract. Wills & Adms. 249, 3rd edit.) Q. — In the case of a will of doubtful construction, how are the exe- •cutors to proceed so as to avoid personal responsibility ? A. — They must either have the assets administered under a decree of a court of equity (Smith's Man. Eq. Jur. 182, oth edit. ; Ayck. Ch. Pr. 432, 4th edit.), or take the opinion of a judge, as before detailed : (see ■ante, pp. 238, n., 240.) Q. — Is an executor allowed his reasonable expenses out of the trust fund? A. — An executor is allowed his reasonable expenses incurred in the ■execution of his office, unless occasioned by his wilful default ; but nothing for personal trouble and loss of time : (Matthews' Guide to Exors. & Adms. 319, 2nd edit.) Q. — ^What is the equitable principle upon which a legatee is entitled to file a bill against an executor ? A. — It is, that in most cases the legatee has no adequate remedy in any other court, and would therefore be without a remedy : (see Story's Eq. Jur. §§ 593 to 595 ; Smith's Man. tit. "Legacies," 5th edit.) Q. — An executor has advertised for creditoi'S of his testator ; has paid all debts of which he had notice, and those are by simple contract ; and he has distributed the residue among the legatees without any decree having been made for the administration of the estate. Afterwards a •specialty creditor, of whose debt he had no notice or knowledge, files a bill for the administration of the estate. In taking the account, is the executor entitled to take credit for the payments made to simple contract ■creditors, and to the legatees, or to either, and which of them ? A. — If the executor has paid away the residue in ignorance of any debt, he is still liable : (Smith's Man. Eq. Jur. 1^9, 5th edit.) If, how- ever, the executor has, by mistake, but bona fide, and without fault, paid legate es before a due discharge of all the debts, the latter will be treated as trustees for the purpose of paying the debts ; because simple contract as well as specialty debts are entitled to priority over legatees, who are not entitled to anything except the surplm of the assets after all the debts are paid: (Story's Eq. Jur. § 1251 ; and see Matthews' Guide to Exors. and Adms. 153, 2nd edit ; Fuller v. Redman, 33 L. T. Eep. 313.) And now by the 22 & 23 Vict. c. 35, it is provided, that where the •executor or administrator shall have given such notices as would have been given by the . Court of Chancery in an administration suit for ■creditors to come in and prove their claims against the deceased's estate, such executor or administrator shall, at the expiration of the time named •in the said notices, be at liberty to distribute the assets, or any part thereof, amongst the parties entitled, having paid the claims of which he Digitized by Microsoft® '248 EXA3IINATI0N QDESTIONS AND ANSWERS. lias notice ; the executor or administrator is then protected against claims of which he has not notice. But still legatees are liable to refund to creditors : (sect. 29.) Q. — Is an executor justified in paying a simple contract debt before a specialty debt, or one simple contract or specialty debt before another simple contract or specialty debt ? A. — The executor must pay the debts according to their priority ; for if he pays those of a lower degree, without leaving enough to satisfy those of a higher, he will have to pay the latter out of his own estate. But among creditors of equal degree he may pay one debt in preference to another : (Allnutt's Pract. Wills 85 Adms. 282, 291, 3rd edit. ; Matthews' Guide to Exors. & Adms. 153, 171, 2nd edit.; Smith's Man. Eq. Jur. 229, 5th edit.) Q. — Can a creditor, who is appointed executor, retain a debt due to himself in preference to other creditors of equal degree ? A. — If the creditor is appointed executor, he may retain his own debt in preference to any other creditor of equal degree : (Allnutt's Pract. Wills. & Adms. 294, 3rd edit.) Although his debt is statute barred : {Sharman v. Sudd, 31 L. T. Eep. 325.) Q. — If an executor improperly retains large balances of his testator's estate in his hands, v^hat remedy will a court of equity afford against ■such executor? A. — If, after a year from the testator's death, the executor retains money in his hands, lying dead, without apparent reason, he will be chargeable with 41. per cent, interest on the fund so retained : (see Goldsmith's Eq. Pr. 199, 4th edit. ; Matthews' Guide to Exors. & Adms. 318, 2nd edit.) And equity will compel the executor to discover and account for the assets and their application : (see Matthews' Guide to Exors. & Adms. 316, 2nd edit.) Q. — A testatrix bequeaths a charitable legacy of 9001., and charges it on all her property, which consists of 6,O0OZ. realty, 4,000^. mixed, and 2,000Z. pure personalty ; what amount will the charity be entitled to ■receive, and on what principle ? A. — If, by the language of the will, there is no intention to exempt the personal estate from its ordinary obligation to discharge the debts and legacies as the primary fund for the purpose, the legacy, not Jbeing within the Statute of Mortmain (see ante, p. 210), would be payable out of the pure personalty, and the charity be entitled to receive the full amount of the legacy; unless, indeed, the debts had exhausted the personal estate, for then the legacy must fail : (see further Roper on Leg. 670, et seq. 4th edit. ; Matthews on Exors. tit. " Legacies," 2nd edit.) Q. — Will a court of equity sustain a bequest of money to executors to build almshouses or an hospital in ease any person should, within a limited time, purchase or give land as a site ? What law was supposed to stand in the way of such a bequest, and what is now the established doctrine as to this ? A. — It was held (by the Master of the Rolls, in accordance with the case of Tfte Attorney- General v. Davies (9 Ves. 535) and other cases, that a bequest like this was within the Statute of Mortmain (9 Geo. 2, c. 36), and consequently void. This was a case where a itestator by his will, after stating that he had contemplated erecting and endowing almshouses, but .that if he. should, die without effectins: such Digitized by Microsoft® ° EQUITY. 249 object, and any person should, within twelve months aftoi- his decease, purchase or give a suitable site to be devoted to such purpose, he directed his executors, as soon as such site should be dedicated to charitable uses, to pay to the trustees of the intended charity, out of his personal estate, the sum of 60,000/. Within the twelve months after his death a person gave a site and dedicated it in due form. Held (overruling the decision of the Master of the KoUs), that the bequest was not void under the Mortmain Act: {Pkilpot y. St. George's Hospital ; Attorney- General y. Philpot, 30 L. T. Eep. 15.) Where a testator directs that the money is to be laid out upon land already in mortmain, and also if he directs that the land shall be procured from any other person who will give it, without reward to himself, and dedicate it to the purpose of the charity, in such cases the bequest is good : {ib.) Q. — Can an executor, by any, and what, means give priority to one creditor of his testator over others after a bill has been filed to adminis- ter the estate ? A. — Even after a bill for administration has been filed it seems an executor may give priority to a creditor who sues him at law, and obtains a judgment before a decree is actualli/ made : (see Matthews' Guide to Exors. & Adms. 172, 2nd edit.) But where execution is not taken out before the decree it cannot be taken out afterwards : {ib.) Q. — Is an executor justified in paying a debt of his testator which is barred by the Statute of Limitations ? A. — Yes ; an executor is justified in paying a debt of his testator which is barred by the Statute of Limitations, as it has been held that he is not bound, and cannot be compelled, to plead the statute : (see Will. Exors. 1535, 4th edit. ; Sharman v. Rudd, 31 L. T. Kep. 325.) Q. — Under the usual decree for the administration of an estate, is an executor or administrator entitled to retain a debt due to himself, in preference to other creditors of an equal degree ? A. — In Nunn v. Barlow (1 Sim. & Stu. 588), it was held, that the personal representative may retain his own debt (of equal degree), not- withstanding a deci'ee has been made in a suit, by the other creditors, for the equal administration of the assets, and notwithstanding the assets, out of which he seeks to retain his debt, came to his hands after the decree: (see AUnutt's Pract. Wills and Adms. 295, 3rd edit.; Mat- thews' Gruide to Exors. & Adms. 155, 2nd edit.) And even though his debt is statute barred : {Sharman v. Rudd, 31 L. T. Rep. 325.) Q. — In what way does the filing of a bill for the administration of a testator's estate affect the executor's right to deal with the assets ? A. — As above seen, the mere filing of the bill for administration does not deprive the executor of all power over the assets, but as a decree in equity is held of equal dignity and importance with a judgment at law, a decree on a creditor's bill for administration of assets, being for the benefit" of all the creditors, makes them all creditors by decree upon an equality with creditors by judgment, so as to exclude, from the time of such decree, all preference in favour of the latter : (see Story's Eq. Jur. §§ 456, 547, and the cases there cited.) And as soon as the decree to account is made in such suit, if any creditor should sue the executor at law, or proceed against him in any other suits, he is entitled to an injunction out of Chancery to restrain such creditors from so doing, except under the direction and control of the court, where the decree isi passed : (ib. 549 ; and see Ayek. Ch. Pr. 257.) ^ ^ Digitized by l^q;osoft® 250 EXAMINATION QUESTIONS AND ANSWERS. Q. — Where a party, sole or surviving executor, dies intestate, how i» a legal personal representative of the original testator constituted ? ■A. — When a sole or surviving executor dies after probate, intestate, a legal personal representative is constituted by taking out administration de bonis non : (Allnutt's Pract. Wills & Adms. 192, 3rd edit.) A. — ^In a suit for the administration of an estate, one of two exe- cutors, defendants, dies pending the suit : is the suit thereby abated; and is it necessary to bring the representatives of the deceased executor before the court ; and for what purpose ? Q. — The death of one of two executors (if not an accounting party) is no abatement of the suit : (see 1 Smith's Ch. Pr. 657, 3rd edit. ; Eede. PI. 46, 3rd edit.) SPECIFIC PERFORMANCE. Question, — How does the remedy given by a court of equity for the non-performan6e of a contract differ from that given by a court of law? Answer. — In the ease of non-performance of contracts, not comprising a public duty, a court of law can, as formerly, only award damages, notwithstanding the C. L. P. Act 1854, s. 68 (see Benson y.Paull, 27 L. T. Rep. 78) ; whilst a court of equity compels the specific per- formance thereof : (see Stor}''s Eq. Jur. § 714, e< sea. ; Smith's Man. Eq. 186, 5th edit.) Q. — When will a court of equity not enforce a contract for specific performance ? ' - ' A. — When there is no contract in writing, and no part performance thereof. Where the parties are incompetent to contract, such as infants. Nor where the terms are not certain and definite. Nor in the absence of a valuable, consideration. Where the agreement is contrary to law, or in other respects inequitable, or against public policy. Where the party seeking the specific performance has not performed his part of the agreement. Noy will equity interfere where damages would amount to a complete compensation : (see Smith's Man. Eq. Jur. tit. 2, ch. 8, 4th edit.) Q. — Where a party engages for the performance of an agreement under a certain penalty, can the party relieve himself from the per- formance by offering to pay the penalty, or will equity, notwithstanding, compel the performance ? A. — A person cannot evade performance of his contract by payment of the penalty for breach of it : (Sug. V. & P. Cone. View, 158; Smith's Man. Eq. Jur. 212, 5th edit.) Q. — Will a court of equity decree a specific performance of an agree- ment for reference to arbitration ? An,d give the reason for your answer. A. — Courts of equity will not enforce the specific performance of an agreement to refer any matter, deeming it against public policy to. Digitized by Micrdso ft® ^ ^ ^ EQTjixr. 251 exclude any person from the appropriate tribunals : (Story's Eq. Jur. § 1457 ; Smith's Man. Eq. 207, 5th edit ; Hortoti v. Soyer, 33 L. T. Eep. 287 ; see also Scott v. Avery, 28 L. T. Eep. 207.) Q. — In what cases will the court decree the specific performance of the sale or purchase of an estate when the price is agreed to be fixed by the arbitration of third persons ? A. — If the price is to be fixed by the arbitration of third persons, the court cannot enforce specific performance of the contract till the price is actually fixed by such third persons ; and if they refuse to do so, the court cannot act : (see Lord St. Leonards' Handy Book, 43, 6th edit. ; Sug. V. & P. Cone. View, 203.) But if the arbitrators act with fairness and impartiality, and fix the price, then, the contract being complete, the court will decree specific performance thereof : (ib. ; Story's Eq. Jur. §§ 1458, 1459.) Q-^A., being an attorney, agrees to sell his business as such attorney to B. ; is, oris not, this such an agreement as a court of equity will- enforce ? And give the reason for your answer. A. — This point has not yet been fully settled by the courts ; it was, however, decided in the case of Bunn v. Guy (4 East, 190) that the sale • of an attorney's business was valid where the contract was attended with partial restrictions on the practice of the vendor, such as not practising within a certain distance, &c. In the case of Bozen v. Fttrlow (1 Meriv. 459), specific performance of an agreement to purchase the business of an attorney was refused at the instance of the vendor; there being no express stipulation by which the court might be enabled to carry it into effect on his part, in return for the defendant's purchase-money. And, from what was said by Sir W. Grant in delivering judgment in the above suit, it would seem a specific performance will not be decreed in such cases : (see G-oldsmith's Eq. Pr. 177 to 179, 4th edit., where the judgment is given.) Q. — In a suit for specific performance of a contract for the sale of an estate, is it competent to either the vendor or the purchaser to obtain a reference as to the title, or can this be done by one only, and which, of such contracting parties ? A. — ^In a suit for specific performance either party may have a refer- ence as to the title, but usually the purchaser obtains it : (2 Dan. Ch. Pract. 980, 981, 2nd edit. ; Sug. V. & P. Cone. View, 251.) Q. — In a suit for specific performance of an agreement, is the plaintiff bound by the title as shown by him at the time of filing his bill ? A. — ^No ; the vendor has the opportunity of making out a better title upon the inquiry ; and if he can show a good title at any time befor e the, «ertificate, it will entitle him to a decree ; and evenjiff-ftr tha certificate; if he can satisfy the court that he can make a good title by clearing up the objections certified, the court will m ake a decree in his favour :^ .(Ayck. Ch. Pr. 195.) Q. — State the essential ingredients in contracts or agreements which are required in order to obtain a specific performance in a court of equity ? A. — The contract must be between parties able and willing to con- tract ; and for a valuable consideration. , The contract must be in writing, and the terms clear and definite, and such as the law allows. But although the Statute of Frauds requires contracts to be in writing. Digitized by^\/^i^soft® 252 EXAMINATION QUESTIONS AND ANSWERS. still a parol contract will be enforced in equity : 1. Where it is fully set forth in the bill, and is admitted by the answer of the defendant, and he does not insist on the statute as a bar, 2. Where it was prevented from being reduced into writing by the fraud of one of the parties. 3. Where the agreement has been partly carried into effect, and it is shown by satisfactory evidence to be clear, definite and unequivocal in all its terms. The acts which constitute the part performance must have been done with no other intention than to perform the agreement, and exclu- sively referable to a complete agreement : (see Smith's Man. Eq. tit. 2, ch. 8, 5th edit. ; and see ante, p. 187, 250.) Q. — A. writes a letter to B. in these terms : "I am willing to sell you my freehold house in Piccadilly for 5,000^." B. replies by letter to A., in these terms : " I accept the offer contained in your letter." Do these letters by themselves constitute an agreement, the specific performance of which can be enforced in equity by either party ? A. — This is such an agreement as a court of equity will enforce; the terms of the agreement, the consideration and the subject-matter of the contract being all stated in A.'s letter, and accepted by B. : (see Gold- smith's Eq. Pr. 172, 4th edit. ; Sug. V. & P. Cone. View, 89 ; 1 Hughes' Pract. Sales, 94, 2nd edit.) \ Q. — By what course of proceeding is A.'s remedy in equity to be enforced, according to the present practice ? A. — A. may now either file a bill q;— cfarm- in the Court of Chancery for specific performance of the contract: (see 1st Order, 22nd April 1S50; Ayclc. New Ch. Pr. 405.) Q. — Your client buys an estate; on the investigation of the title it appears that the vendor cannot make a good title to a small field detached from the rest of the property, and not of any material conse- quence to your client, who however wishes to be off his bargain ; will a court of equity compel him to fulfil his contract, and upon what terms ? A. — If, on the purchase of an estate, it turns out that the vendor cannot make a good title to a small field detached from the rest of the property, and not of any material consequence to the purchaser, the court of equity will, in such a case, decree a specific performance against the purchaser on a bill being filed for the purpose by the vendor, he making the purchaser compensation for the field. The question in such cases always is, " whether the part to which a title cannot be made is material to the possession and enjoyment %>{ the rest of the estate :" (see Hughes' Pract. Conv. 140, 141, and the cases there cited; Sug V. & P. Cone. View, 221, 225.) ^ Q. — On the offer of the late East Indian loan, A. tendered, in writing, to take 100,OOOZ. at 102 per cent., and the company, in writing, accepted the tender, but A. refused to complete the bargain : will a court of equity enforce the fulfilment of the contract ? State the reason for your answer. A. — A court of equity would not enfoixe-the specific performance of this contract against A., because damages would amount to a compen- sation : (Story's Eq. Jur. §§ 717, 718; Smith's Man. Eq. 187, 5th edit.; Sug. V. & P. Cone. View, 149.) Q. — -Will a court of equity decree the specific performance of a covenant to invest money in lands, and to settle them in a particular manner ? A.— A court of eQ^fJz^^h^WRi^d^®'^^^^'^ performance of a EQUITY. 253 •covenant to invest money in lands and settle them in a particular manner, at all events, where there is a valuable consideration for the covenant : (See Sug. V. & P. Cone. View, 561.) And, if a man covenants to purchase and settle lands, and afterwards accord- ingly' purchases lands of equal or greater value, they will be held to lave been purchased with an intent to perform the covenant, and will accordingly go in performance of it : (see ib.) Q. — How far is the maxim of caveat emptor carried by the courts for specific performance ? Does it warrant misrepresentation or artifice in a vendor to procure a contract ? State the principles uppn which the courts proceed. - ^n ^i^/^A/e^-ceji^^^iMtx/i/i-iii'ttJ^^/i^ '^^^^i^ Oi^^yrt'^ A. — ^In cases for specific performance the maxim catieaiemjofoT- applies if the defects in the estate be patent ; if there be no fraud and no con- ' -cealment, and no artifice to disguise the thing sold, the purchaser can have no relief. Thus, where a meadow was sold to the owner of a house and ground adjoining without any notice of a footway round it, . and also one across it, which of course lessened its value, a specific per- formance was decreed with costs, as the purchaser did not choose to inquire. It was not a latent defect ; had he used ordinary caution he would have discovered the easement. And expressions, though untrue, if the facts might be ascertained by the purchaser by inquiry, will be no tar to a specific performance ; as where land was described to be un- ' ■commonly rich water-meadow, specific performance was decreed, although it turned out to be imperfectly watered : (see Sug. V. & P. Cone. View, 288, &c.; Smith's Man. Eq. 54, 5th edit.) Misrepresentation will not be relieved against, unless it misleads the purchaser : (Story's Eq. Jur. § 202; Smith's Man. Eq. 54, 5th edit.) But if there is any artifice, &c. to disguise the thing sold, or some warranty as to its quality, &c., then specific performance will not be decreed : (Story, § 212; Smith, ■sup.') Q. — ^A., supposes he has a right to enter into a written agreement for sale of an estate to B., which estate belongs to C; will B., in a suit for specific performance against A. and C, be entitled to a decree ? A. — ^B. will not be entitled to a decree for specific performance against A. and C. (Story's Eq. Jur. § 1048,. note), unless C. knew of the sale, and did not forbid it, and thereby B. was induced to become the pur- chaser under the supposition that the title was good : {ib. § 385.) Q, — Are there any circumstances under which an agreement for a lease for twenty-one years, not made in writing, would be enforced by a -court of equity ? If so, state those circumstances, and the grounds on which such equity would prevail. A. — Yes : 1. Where the agreement is set out in the bill, and is admitted by the answer of the defendant, and he does not set up the Statute of Frauds as a bar. 2. Where it has been prevented from being reduced into writing by the fraud of one of the parties. 3. Where there has been a part performance. The grounds on which a performance would be enforced by courts of equity in such cases are, that if the party allowing these acts to be done was not obliged to fulfil the agreement it would be permitting him to commit a fraud, the very crime the statute was designed to prevent : (Smith's Man, Eq. 205 to 207, 4th edit. ; 1 Hughes' Pract. Sales Eeal Pro. SO, 81, 2nd edit.) Digitized by Microsoft® EXAMINATION QUESTIONS AND ANSWERS. COVENANT— FOEFEITUKE. Question. — What is the diffei-ence between courts of equity and common law in their respective modes of considering the performance of covenants ? / Answer. — At law (and in general the same is equally true in equity), , if a man undertakes to do a thing by way of covenant, and it is practi- cable to be done, he is bound to perform it punctiliously, or suffer the consequences. And it is wholly immaterial whether tlie failure was occasioned by accident, or mistake, or fraud, or negligence. And, in geaeeali thp,rje-Has.Ju u.filief in s uc h cases at law , but^it must have begjj sought io, equity,; but relief may now be ha"3~m certain cases at law by the operation of various statutes. Courts of equity, however, do not hold themselves bound by such rigid rules as courts of law ; they are accus- tomed to administer as well as refuse relief in cases of this sort upon principles peculiar to themselves ; sometimes, following out the strict doc- trines of the common law, refusing relief ; and sometimes granting it upon doctrines wholly at variance with those held at common law : (see Story's Eq. Jur. §§1301 to 1303, 1311, e« seq. ; Smith's Man. Eq. 299, oth edit.) Q. — What is the general rule of equity in granting relief against penalties and forfeitures for breaches of covenant ? A. — Wherever a penalty or forfeiture appears to have been inserted merely to secure the performance of some act, or the enjoyment of some right or benefit, equity regards the performance of such act, or the enjoy- ment of such right or benefit, as the substantial object of the party inter- ested therein ; and if a compensation can be made for the non-perform- ance or want of enjoyment thereof, it will reliev^e against the penalty or forfeiture, by decreeing a compensation in lieu of the same, proportionate to the damage sustained : (Story's Eq. Jur. §§ 1314, 1320; Smith's Man. Eq. 299, 301, oth edit.) Q. — Will a court of equity interfere in all, or what, cases of breach of* covenant in a lease ? A. — In the case of breach of a covenant in a lease to pay rent , equity will relieve ; but formerly no relief would have been granted in equity in case of a forfeiture for breach of any covenant other than a covenant to pay rent, unless on the ground of accident, mistake, or fraud : (Story's Eq. Jur. §§ 1315, 1320 to 1326 ; Adams on "Equity, 109 ; Smith's Man. Eq. 301, oth edit.) But see 22 85 23 Vict. c. 35, s. 4, et infra. Q. — If a lessee, holding premises under a lease containing a covenant by him to insure the premises, with the usual clauses of forfeiture, should omit to effect a continuance of the insurance, and an ejectment be brought in consequence of such breach of covenant, will a court of equity in any, and, if so, in what, manner interfere to restrain the proceedings by ejectment ? A. — ^In case of a forfeiture for breach of covenant to insure by a lessee, equity would not formerly interfere to restrain the proceedings by ejectment : (see Story's Eq. Jur. § 1324 ; Smith's Man. Eq. 301, 5th edit.) But now equity may relieve against a forfeiture for breach of a covenant to insure if no loss by fire has hapnened, and the premises are. Digitized by Microsbrt® ^ ' EQUITY. 235 at the time of the application, insured. This relief can only be granted once in respect of the same covenant or condition : (22 & 23 Vict, c. 35, ss. 4 to 6, and see more fully, ante, p. 151.) POINTS RELATING TO MOETGAGES. Question. — ^Describe the nature and object of a bill of foreclosure. Anstver. — A bill of foreclosure is an original^ill, filed by a mortgagee, ' where the deed contains no power of sale^forthe purposes of obtaining the direction of the court for payment of hie principal money and interest; or, in default, that the mortgagor may be foreclosed from his equity of redemption : (Ayck. Ch. Pr. 196.) Q. — ^^What relief does a court of equity give virhere a mortgagee wishes to acquire an absolute title to a forfeited mortgage, and to foreclose all equity of redemption ? A. — The relief given to the mortgagee is, permitting him to foreclose the equity of redemption, unless the mortgage money, together with interest and costs, be paid within the time given, or by decreeing a sale. On the other hand, it allows the mortgagor to redeem the mort- gaged premises if he applies to do so before the right is lost by the lapse of twenty years, during which period no acknowledgment has been made by the mortgagee of the mortgagor's title or right of redemption, and within the time allowed by the court for payment. And, on payment of the mort- gage money and interest, equity will compel the mortgagee to reconvey the estate, and account for every kind of profit he has made in the ordinary way, or which, but for his wilful default, he might have made, although the mortgagor's estate is forfeited at law : (Story's Eq. Jur. §§ 1013, 1016, 1028 a ; Smith's Man. Eq. 252, 253, 5th edit.) Q. — Can a mortgagee proceed against the mortgagor both at law and in equity at the same time, and how ? A. — The court will not prevent the mortgagee from using all the remedies belonging to the character of mortgagee, and exercising all the powers that are given to him, as and when he pleases, even concurrently. If a debt is secured by the mortgage of a real estate, and also by cove- nant, and collaterally by bond, the mortgagee may pursue all his remedies at the same time ; he may, at the same time, bring his ejectment, file his bill of foreclosure, and sue on the bond or covenant : (see Smith's Man. Eq. Jur. 256, 5th edit. ; Coote on Mortgages, 497, 3rd edit. ; Ayck. Ch. Pr. 259.) Q. — Under the usual decree for foreclosure, is any, and what, time of payment allowed ? A. — Yes ; the usual time of payment allowed is six mon ths afterjhe date^oLthe, certi ficate of the _ch ief cle rk. But, upon a fit case being made out, the^ourt will enlar ge the time jippointed for payment of principal, intere'sTandcosts : (see Ayck. New Ch. Pr. 198.) Q. — When a second mortgagee files a .bill for foreclosure, how is the first mortgagee to be dealt with ? \ Digitized by Microsoft® 256 EXAMINATION QDKSTIONS AND ANSWEKS. A. — A reference tojake an^account_of_p.rincipal and int^est, and Ja tax costsliuelotEe^ rst mortg agee, is directed by the decree, and gig, months aftgrl]Tg]gajg_nf_tjig^fihip.f f 1prk'i=i nert.iflcflte is given to the plain- tiff to redeem the first mortgage ; and in default of his so doing, thebill js dismisse d. As to directing a sale instead of a foreclosure, see 15 & 16 Vict, c, 86, s. 48, a.nd post, p. 258. Q. — What is the nature and object of a bill of redemption ? A. — It is a bill brought by a mortgagor to get back his estate on pay- ment of principal, interest and costs : (see Story's Eq. Jur. § 1013, et supra.) Q. — What relief does a court of equity give where a mortgagor is desirous of redeeming a forfeited mortgage ? A. — It allows the mortgagor to redeem the mortgaged estate, and compels the mortgagee to reconvey, on payment of principal, interest and costs by the mortgagor : (see more fully ante.) Q. — ^What respopsibility does the mortgagee incur by entering into- the possession of lands mortgaged to him ? A. — He is liable to the mortgagor for the rents and profits he has made in the ordinary way, or which, but for his wilful default, he might have made. So, if he assigns over his mortgage without the assent of the mortgagor, he is still bound to answer for the profits to the mortgagor, both before and after the assignment, though assigned only for his own debt. He must also keep the premises in necessary repair : (see Smith's Man. Eq. Jur. 261, et seq. 5th edit. ; Coote on Mortgages, 303, 3rd edit.) Q. — Where a mortgagee is in possession, what is the time limited within which a mortgagor may file a bill to redeem? A. — When a mortgagee has obtained possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless, in the mean time, an acknowledgment of the title of the mortgagor or of his right of redemption shall have been given to the mortgagor, or some person claiming his estate, or to the agent of such mortgagor or person, in writing, signed by the mortgagee, or the person claiming through him: (see 3 & 4 Will. 4, c. 27, s. 28 ; Sug. Real Pro. Stats. 109, 110; Browell's Eeal Pro. Stats. 46.) Q. — By what means may a subsequent incumbrancer of a chose in action obtain priority over a previous incumbrancer ? A. — By giving notice to the debtor when the prior incumbrancer has omitted to do so : (see Story's Eq. Jur. §§ 1035 a, and note, 1017 ; Sug. V, & P. Cone. View, 275.) Q. — In what respect does an equitable differ from a legal mortgage ; and are there any, and what, proceedings provided by a court of equity for converting the equitable into a legal mortgage ? A, — A legal mortgage passes the entire legal interest in the subject- i/ matter to the mortgageg.and the mortgagor has but an equity of redemp- tion ; whilst an equitable mortgage merely gives the mortgagee ajright in equity tq_Jiave_a_com2lele_title. A court of equity will compel the equitable mortgagor to grant a legal mortgage, or will proceed as on the footing of a legal mortgage : (see 27 L. T. 35 ; Burton's Comp. pi. 1574, n.) Digitized by Microsoft® EQUITT. 257 Q. — ^In what respect is the relief given by a court of equity to aii equitable mortgagee more extensive and beneficial than in the case of a legal mortgage ? A. — Besides having the usual decree for foreclosure, an equitable mortgagee may also, after the mortgagor's death, have a decree for sale,- and go against the gene ral assets for deficie ncy ; and, it seems, he may Eave'a decree for sale feven in the mortgagor's lifetime : (Burton's Comp, pL 1574 n. ; 27 L. T. 35.) In the case of a legal mortgage, if there is na power of sale in the mortgage deed, in general a decree for fore- closure can only be made : (Story's Eq. Jur. § ] 026.) At all events this was the rule formerly, but by the 15 & 16 Vict. c. 86, s. 84, a Court of Chancery may now direct a sale instead of a foreclosure in the case of a legal mortgage : (see Smith's Man. Eq. 253, 5th edit, et infra.) Q. — A mortgagee has called in the mortgage money, which the mortgagor is unable to pay, but a third party is willing to advance it upon a transfer of the mortgage. Is the mortgagee bound to transfer the mortgage, and what course must be pursued if he refuses ? A. — It seems that, stricto_Jure, a mortgagee cannot be compelled to assign the mortgage debt on redemption either by the mortgagor or by a stranger, though he is bound to convey the estate : (Coote on Mort- gages, 347, 3rd edit.) But if the proviso for redemption and reconvey- ance in the mortgage deed is properly worded, the mortgagee may be compelled to convey the mortgaged property to the new mortgagee Jby direc tion o f the mortgagor on payment of his principal and interest. Q — A mortgagee after foreclosure sold the mortgaged estate, but it did not produce enough to pay the principal, interest and costs due, and he sued at law for the residue upon the mortgage bond ; will a court of equity interfere to stop him? What would have been the case if the mortgagee had not sold the estate after foreclosure, but had sued for an alleged deficiency on the bond ; would the foreclosure be opened, or not, in equity ? A. — In the first case put, the mortgagee cannot, after selling the fore- closed estate, sue on the bond for any deficiency that may arise, and equity will stop him ; and even if he does not sell the estate after the foreclosure, but sues on his bond or covenant, this will have the effect of opening the foreclosure, and giving to the mortgagor the right to redeem again : (see Smith's Man. Eq. Jur. 257, 5th edit.) Q. — In what cases is notice essential to give effect to equitable mort- gages ? _ _ , , A. — Notice is essential in mortgages of equitable interest in personal property (see Story's Eq. Jur. § 421 a. 1035 a. and note) ; alsopirTall assignments of choses in action : {ib. 104? ; Sug. V. & P. Cone. View, 275.) " Q. — State the general purposes for which a mortgagee in possession may expend money upon the mortgaged estate which will be allowed to him by a court of equity in taking the account between the mortgagor and mortgagee ?^ A. — A mortgagee in possession will be allowed all his fair expenses in renewing leases, necessary repairs, lasting improvements (Coote on Mort- gages, 536, 3rd edit.), and protecting the title to the property (Story's Eq. Jur. § 1016b); he will not be allowed his expenses in opening mines or quarries, but must speculate at his own hazard (Coote on Mortgages, ub.i sup.) ; and he will not be aUovi'ed for general improve- 2o8 EXAMINATION QUfcSTIONS AND ANSWERS. ments made without the consent of the mortgagor : {ib. ; Story'j Eq. Jur. § 1016 b. ; Smith's Man. Eq. 263, 5th edit.; Q.— A. lends money to B. on a deposit of title-deeds and an agree- ment to execute a mortgage with _pow.ei- cL-^Je j B. fails to pay the money or to execute the mortgage, and A. wishes to sell the property ; can he sell under the power before the mortgage has been executed ? A. — If A. lends money to B. on a deposit of title-deeds and an agree- ment to execute a mortgage with powers of sale, and B. fails to pay the money or to execute the mortgage, A. cannot before the mortgage is executed proceed to sell the property, but he may go into equity, and the court will either compel B. to execute a legal mortgage with a power of sale, or will proceed as on the footing of a legal mortgage, and decree a sale : (see 27 L. T. 35.) Q. — In the power of sale in a mortgage deed of real estate it is declared that the mortgagee shall hold the surplus of the moneys arising from the sale in trust for the mortgagor, his " executors, adniinistrators, or assigns." After the sale under such power, is the surplus to be con- sidered real or personal estate, and does it make any difference whether such sale takes place in the lifetime of the mortgagor, or after his death? A. — If in a power of sale in a mortgage deed of real estate it is declared that the mortgagee shall hold the surplus of the moneys arising, from the sale in trust for the mortgagoi-, his " executors, administrators, or assigns," and a sale is effected under the power, the surplus w^ould, if the mortgagor was living, be personal estate. But if the sale took place after the mortgagor's death, then, as a mortgage is only consi- dered in equity as a security for money, and not as an absolute con- veyance, the estate would descend to the heir of the mortgagor, and the surplus after the estate was sold would still be real estate, and if paid to the executors, &c. of the mortgagor, they would be trustees for the mortgagor's heir-at-law : (see Smith's Man. Eq. 255, 256, 5th edit.) Q. — Can a court of equity, in a foreclosure suit, direct a sale of the mortgaged estates ? A. — Yes ; for, by the 15 & 16 Vict. c. 86, the court is empowered, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale instead of a foreclosure, on such terms as the court shall direct ; and, if the court shall think fit, without previously determining the priorities of incumbrances or giving the usual or any time to redeem. But if such request be made by any subsequent incumbrancer, or by the mortgagor, or any person claiming under them respectively, the court will not direct a sale without the consent of the mortgagee or the person claiming under him, unless the party making such request shall deposit a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as the court may think fit to impose on the party making such request: (sect. 48; Smith's Man. Eq. 263, 5th edit. ; and see hereon Whitbread v. Roberts, 33 L. T. Kep. 24.) Q. — In case a testator dies possessed of real estates subject to mort- gages, and he bequeaths his real estate to one person and his personal estate to other persons, without any direction as to the payment of his debts, out of which estate are the mortgages to be paid, (a) (a) Also asked in this form: A. devises his reiil estate to B., and his personal estate to C i the real estate is suliject to a mortgage deht, and either estate is suSeient for the payment of it. As hetwee£)^jKJ2eSC( fe!)icMeA]aS®/it©the debt? And state any special circumstances which may govern, your answer. EQUITY. 259 A. — ^By the 17 85 18 Vict. e. 113, it is expressly enacted, that ■where a person shall, after the 31st Dec. 1854, die seised of or entitled to any estate or interest in lands or hereditaments, and the same shall at his death be charged with the payment of any money on mort- gage, and he shall not, by his will or deed, or any other document, have signified any contrary intention, the heir or devisee to whom such lands, &c. shall descend or be devised, shall not be entitled to have the mort- gage money discharged out of the personal estate. But it is provided that the enactment shall not affect any rights claimed under any deed, will, or other document made before the 1st Jan. 1855. PARTITION. Question. — What relief does a court of equity give where a joint tenant, or a tenant in common, is desirous of having the joint property ■divided ? Answer. — The mode in which relief is administered in equity in such cases, is by first^sc^tainingjh^ jdglit3_of_the several pa rties intere stad.- and then issuing a nnmmisainn to ma ke the partition ; and on the return of the commission, and confirmation of the return by the court, the par- tition is finally completed by mutual_c onveyance s_of the lots made to the several parties : (Story's Eq. Jur.' § 650 ; Smith's Man. Eq. 317, et seq. 5th edit.) ACCOUNT. Question. — State some of the cases in which a bill in equity for an account will lie. Answer. — A bill in equity for an account will lie between trustee and cestui que trust ; in partnership transactions ; by principals against their factors and agents, and by mortgagors against mortgagees who have been in possession, and vice versa: (Goldsmith's Eq. Pr. 82, et seq. 4th edit.) Q. — ^In a suit for an account, is it competent for the court to direct that the books, in which the accounts required to be taken have been kept, shall to any, and to what, extent be deemed evidence of the truth of the matters therein contained ? A. — ^By the 15 & 16 Vict. c. 86, it is enacted, that it shall be lawful for the court, in cases where it shall think fit so to do, to direct that in taking the account, the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as prima facie evidence of the truth of the matters therein contained, with liberty Digitized by^\/lk;^soft® 260 EXAMINATION QUESTIONS AND ANSWERS. to the parties interested to take such objections thereto as they may be advised : (s. 54 ; Hallilay's Ch. Suit, 75; Smith's Ch. Pr. 5th edit.) Q. — ^If an account be settled between parties, and signed, will a court of equity open the account generally or partially; and, if so, upon .what principle ? A. — Generally, where an account has been settled, it is deemed con- clusive between the parties, unless some fraud, mistake, omission, or inaccuracy be shown. And the court will not generally open the account, but will, at most, only grant liberty to surcharge and falsify, unless in cases of apparent fraud : (Story's Eq. Jur. § 527.) Q. — Is there any, and what, advantage in the proceedings of a court of equity over those of a court of common law in questions of account ? A. — The proceedings in the action of account being difficult, dilatory, and expensive, it is now seldom used, especially if the demand be of con- sequence, and the matter of an intricate nature ; for in such cases it is more advisable to resort to a court of equity, where matters of account are more commodiously adjusted, and determined more advantageously for both parties : (Story's Eq. Jur. § 443 ; Smith's Man. Eq. tit. 3 ch. 1.) CY PRilS. Question. — Explain what is meant by the rule or doctrine maintained by a court of equity, and which is commonly termed cy pres. Answer. — Where a literal compliance with the directions of a testator becomes inexpedient or impracticable, the court will execute them as nearly as it can according to the original purposes, or (as the technical expression is) cy pres : (Story's Eq. Jur. §§ 291, 1 169.) Q. — ^Where there is a devise for charitable purposes, but the special mode of application is impracticable, will the court carry the devise into effect in any, and what, manner ? A. — If in a bequest to a charity a literal execution becomes imprac- ticable or inexpedient, the court will execute it as nearly as it can according to the original purpose, or (as it is technically expressed) cypres: (Story's Eq. Jur, §§ 1169 to 1172.) Digitized by Microsoft® EQUITY. 261 INFANTS. Question. — ^What protection does a court of equity give to infants laving property within the jurisdiction ? Answer. — ^The Court of Chancery will appoint a suitable guardiaii to an infant where there is no other who will or can act, at least where the infant has property. If the infant has no property, the court, perhaps, will not interfere; not from a want of jurisdiction, but because it cannot exercise its jurisdiction usefully without having the means of applying property for the benefit of the infant. The court will also remav-e^er assist guardians on sufficient cause, and cmitrol their conduct. The court will also deprive the parent of the custody of his children on proof of gross ill-treatment, or tEajTthe parent is living in gross immorality, or avowed impiety, or otherwise acts in a manner injurious to the morals or interest of his children. The court will also prevent the estate of the infant from being wasted : (see Story's Eq. Jur. § 1338, et seq. ; Gold- smith's Eq. Pr. 147, et seq. 4th edit. ; Smith's Man. Eq. 357, 5th edit.) Q. — What is the course of proceeding if, upon default made by a •defendant in not appearing to or not answering a bill, it appears to the aovLi-i that the defendant is an infant ? A. — In such case the cour tmav. u pon the application of the plaintiff , ■ order that the solicitor t^^ ^nTififfrnVfr -faad be assigned guardian of sueh ' infant dp.fpndant, \ty whom h e may appear to and answer, o r may answe r t he bill and defend the suit . It must be shown that a copy^ of the bill was duly served, and that notice of such application was, after the expi- ration of the time allowed for appearing to or for answering the bill, and at least six clear days before t he hearing of the application, served upon or left at the dwelling-house of the person with whom, or under whose care, such defendant was at the time of serving the bill, and also upon the father or gi inrdi'tTl of the infant, unless dispensed with by the court : ) Also asked thus : In the absence of a guardian so appointed, what is the sammary course of proceeding after the father's death for the appointment of a guardian, and procuring an allowance for the infant's maintenance?, , .. ^^ Digifizea by Microsoft® 262 EXAMINATION QUESTIONS AND ANSWEES. A. — All applications relating to the guardianship and maintenance of infants may be made at chambers, except for the appointment of a guar- dian ad litem : (see Judges' Eeg. 10th Nov. 1850.) Evidence must be produced to show : 1st, the age of the infant ; 2ndly, the nature and amount of the infant's fortune and income ; and 3rdly, what relations the infant has : (see Judges' Reg. Aug. 1857.) It must also be shown that the guardian is a fit and proper person, and that he has no interests opposed to those of the infant. This is not in substitution for the mode of proceeding to obtain a guardian when a defendant does not appear, being an infant, detailed above. Q. — Can a valid settlement of the real and personal estates of infants be made upon their marriage ? And, if so, how ? A. — It is now provided by the 18 Vict. c. 43, that infants may, with the approbation of the Court of Chancery, make valid and binding settlements, or contracts for settlements, of their real or personal estate ■on their marriage. But it is provided that the act .shall not extend to male infants under twenty years of age, or to female infants under seven- teen years of age. Formerly, a special act of Parliament was required to bind the real estate of an infant : (see Fonb. Eq. 81, n.) Q. — In the case of an infant entitled to a fund in court, and having a father living, what are the circumstances under which the court will order an allowance out of the income of the fund for the maintenance of the infant ? A. — It seems it is not now necessary (as formerly) to show that the father is in distressed circumstances before he can claim an allowance out of the infant's property ; for if he is not of ability to maintain the infant according to his expectations, he may claim a suitable allowance for him during his minority. But in such a case the court usually directed a reference to the Master to inquire as to the father's ability to maintain the infant : (Ayck. New Ch. Pr. 456; and see Smith's Man. Eq. 362, 5th edit.) Q. — Upon the marriage of an infant minor, without the consent of the court, what is the consequence to persons concerned in, assisting, or pro- curing such marriage ; and what course does the court usually adopt towards them ? A. — If a man should marry an infant ward of Chancery without the consent of the court, even though with the consent of the guardian, hie, and all others concerned in aiding and abetting the act, are guilty of a contempt of court ; even though ignorant that she was a ward of court, they will be deemed guilty of a high contempt (see Story's Eq Jur. § 1358; Smith's Man. Eq. 363, 5th edit.) ; and may be punished by attachment. Q. — What rules do courts of equity observe i-egarding the enforce- xnents of contracts entered into by infants ? A. — A court of equity will not enforce the specific performance of contracts entered into by infants, either for or against them ; for to enforce the specific performance of agreements the remedy must be mutual: (see Goldsmith's Eq. Pr. 180, 4th edit.; Story's Eq. Jur. § 787; Smith's Man. Eq. 192, 5th edit.) Q. — Can or cannot a bill be filed on behalf of an infant, without his consent ? A. — Any one may institute a suit on behalf of an infant without his consent : (Mit. PL ^%y^^^J^^^fyP^f^,M "°" *^^ ^"^ '"'''''' '^ the 15 & 16 Vict. c. 86, puts some restraint on persons filing bills on behalf of infants without their consent, by enacting that before the name of any person shall be used in any suit to be instituted in the Court of Chancery as next friend of any infant, such person shall sign a written authority to the solicito r for that purpose, and suc h authority shalTbe fi led w ith the bill. &c. : (see Supplement to Goldsmith's Eq. Pr. 18, 4th edit.) And the court has the power to stay or dismiss proceed- ings which appear to be detrimental to the interest of the infant : (see Smith's Ch. Pr. 80, 5th edit.) Q — How does an infant institute a suit in equity, and how defend it ? A. — If an infant is desirous of instituting proceedings, he must do so in the name of an adult, who, in such case, is called his proc/iein ami, or next friend. As above seen, the next friend must sign a written autho- rity to the solicitor to be filed with the bill. If a bill be filed against an infant, he cannot defend the suit until a guardian ad litem has been appointed him for that purpose, which must be don&Jia.-QpaiiL.caurJ_,Qn- p gtition : (see Ayck. Ch. Pr. 453, 454; Smith's Ch.Pr. 79, 168, 5th edit.) Q. — ^If a suit be instituted on behalf of an infant, which is considered to be injurious to his interests, in what way will the court, on represen- tation to that effect being made, proceed in order to ascertain whether it be well or ill founded; and, if the latter, what course will it adopt ? A. — In such case the court will direct a reference to chambers to ascertain if the suit is for the infant's benefit ; and, if not, will stay the proceedings or order the bill to be taken off the file: (Danl. Ch. Pr. 95 ; Ayck. Ch. Pr. 263 ; HaUilay's Ch. Suit, 83 ; Smith's Ch. Pr, 80, 81, 5th edit.) Q. — ^In what manner is the answer of an infant put in ? A — ^An infant answers by guardian : (Ayck. Ch. Pr. 80, 454; HaUilay's Ch. Suit, 23; Smith's Ch. Pr. 168, 5th edit.) Q. — Can admissions be made on behalf of an infant who is a party to a suit? A. — No; an infant cannot admit anything : (Ayck. Ch. Pr. 116, 122 ; HaUilay's Ch. Suit, 45; Smith's Ch. Pr. 214, 5th edit.) Q. — Is the decree of a court of equity binding in any, and if any, in what cases, on a party to the suit who is a minor ? A. — With respect to a decree binding an infant, there is a difference whether he stands in the condition of a plaintiff or defendant in a suit. If a plaintiff, he is equally bound by the decree as a person of full age ; .but where he is defendant in a cause, he is not conclusively bound by the decree of a court of equity, but has a day given to show cause against the decree, usually limited to six months after lie has attained the age of twenty-one years : {Gregory v. Molesioorth, 3 Atk. 625; Smith's Ch. Pr. 262,5th edit; Goldsmith's Eq. Pr. 359, 360, 4th edit.) When there has been a decree in a foreclosure suit against several defendants, one of whom is an infant, he has a day to show cause against the decree; but if the court has decreed a sale, that binds the infant. And it seems that if any suit is instituted for payment of debts of a deceased person, under the 1 Will. 4, c. 47, s. 1 1, to which his heirs or devisees may be liable, and the estates are directed to be sold for satisfaction of such debts, and the heir or devisee is an infant, he will nevertheless be bound to convey: (see Goldsmitli's Eq. Pr. 359, 360, 4th edit. ; Ayck. Ch. Pr. 161, 162, Digitized by Microsoft® 264:, EXAMINATION QUESTIONS AND ANSWERS. 4th edit. ; see also 13 & 14 Vict. c. 60 ; but see Smith's Ch. Pr. 262, 5th edit., and the cases there referred to.) Q. — Ho-w must a plaintiff proceed to make a decree binding upon an infant ? A. — Upon the infant coming of age, he should be served with a sub- piBna to show cause ; and, if he make default, the decree is made absolute against him : (Ayck. New Ch. Pr. 161 ; Smith's Ch. Pr. 263, 264, 5th edit.) If the late infant be desirous of being heard, he presents a petition as of course that the cause may be set down in order that he may show cause against the decree : (Smith, sup.) Q. — Who is liable for the costs incurred by an infant plaintiff? A. — His prochein ami, or next friend, is liable for costs ; but if the infant continues the suit after he is twenty-one, he makes himself liable for the whole costs : (Goldsmith's Eq. Pr. 387, 4th edit.; Smith's Ch. Pr. 80, 5th edit.) Q. — Can the prochein ami of an infant sue in forma pauperis, or can any objection be sustained to such prochein ami on the ground of hi& poverty ? A. — An infant, it seems, may sue in forma pauperis by his next friend, and objections to the next friend of an infant cannot be made on account of his poverty: (Danl. Ch. Pr. 103, 152 ; Davenport V. Davenport, 1 Sim. & S. 101; Smith's Ch. Pr. 79, 509, 5th edit.) Q. — When the next friend of an infant plaintiff dies, and there is delay in appointing a new next friend, what is the proper course of pro- ceeding by the defendant ? A. — The proper course for the defendant to adopt in such a case is to obtain an order that the court may approve of a new next friend ; and four days' notice of the order must be given to the plaintiff's solicitor : (Ayck. New Ch. Pr. 454.) Q. — If there be a decree for the sale of estates to pay debts, and such estates by descent or devise be vested in an infant, how is such sale to be perfected, and under what authority ? A. — By the 1 Will. 4, c. 47, the court is in such case empowered to compel tlie infant to convey the estates so decreed to be sold for payment of debts to the purchasers thereof, in such manner as the court may ' direct : (Ayck. Ch. Pr. 161, 162, 4th edit.) This power is further extended by the 13 & 14 Vict. c. 60, and the 15 & 16 Vict. c. 55, to which statutes the student is referred for further information. RIGHTS OF MARRIED WOMEN. Question. — How and in what manner should proceedings in equity be instituted by a married woman ? Answer. — A suit on behalf of the rights of a married woman is^ usually instituted by herself and her_husband jointlh^. But if a married woman has interests in opposition to those claimed by her husband, she must sue by^her nextjiifiHjrTGoldsmith's Eg. Pr. 208, 4th edit.) But Digitized oy Microsoft® EQUITY. 265 before the name of any person shall be used in any suit to be instituted in the court as next friend of a married woman, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill, information, or clatm : (15 & 16 Vict. c. 86, s. 11.) Q. — Can a married woman, in any case, institute a suit as a feme sole? A. — If her husband is banished , or has abjured the realm, a married -' woman may institute a suit as a feme sole : (Goldsmith's Eq. Pr. 207, 208, 4th edit.) So, if she has obtained an order protecting her earnings J and property when deserted by her husband, under sect. 21 of the ' Divorce Act (20 & 21 Vict. c. 85), or has been .j udicially separated under - the same act : (see Hallilay's Articled Clerk's Handbook.) Q. — What protection does a court of equity afford to a married woman in respect of property belonging to her, which the husband cannot reach without the aid of a court of equity ? A In such a case the court will not give it up to the husband without requiring him to make a suitable settlement on the wife of a / part of the property, or of some other property, forjber due.maintenance, in case of her surviving him, with a pr ovision for the .isaue^flf_the marriage ; unless the wife and children are already amply provided for under a prior settlement, or the right to a settlement is waived : (Story's Eq. Jur. §§ 1404, 1406, 1416, 1418; Smith's Man. 384, 5th edit.) Q. — Are there any circumstances under which the rule referred to in the last question will be relaxed in favour of the husband ? If so, give instances in which such rule will be so relaxed. A. — Yes ; as when the wife and children are already amply provided for under a prior settlement, or the right to a settlement is waived by the wife in open court; or under a commission; or lost by her own mis- conduct, as if she be living in adultery, apart from her husband ; but in such a case a court of equity will not decree such equitable property to be paid over to the husband, on his application ; for when the wife is living apart from him, he is at no charge for her maintenance, and it is only in respect to his duty to maintain her that the law gives him her fortune : (Story's Eq. Jur. §§ 1416 to 1419 a ; Smith's Man. Eq. Jur. 390, ef seq. 5th edit.) An exception also occurs where the wife's property is a term of years held in trust for her : (Story, § 1410.) Q. — What amount of principal money, or of an annual payment, will the Court of Chancery pay to a married woman or her husband without order ; and what evidence is required in support of the application ? A. — When the sum does not exceed 200^. in principal, or 10?. in annual payments, upon an affidavit of the wife and her husband, stating the marriage, and that no settlement, or agreement for a settlement, has been made whatever, the accountant-general of the court shall make the drafts for such principal sum, not exceeding 200Z., or for such annual payment, not exceeding lOA, payable to such married woman or her husband. If the money exceeds the above amount, the wife presents a joint petition with her husband for payment thereof out of court, to such person, and in such manner, as she may desire. A_CCTtificate_ofWthejD3Eriage, verified by affidavit, will be necessary, and a certificate of the fund in court, and, as above stated, ajointaffidayit by husBand anj[wife that thereis no settlement whatever : (see further, AyckrCh. Pr. 343, 344 ; Sut see" hereon Re" Cutler, 14 Beav. 220 ; Simth's Man. Eq. Jur. 382, 5th edit.) Digitized is^ Microsoft® 266 EXAMINATION QUESTIONS AND ANSWERS. Q. — Will a court of equity require any settlement in favour of a wife out of property bequeathed to her, and claimed by her husband ; and, if so, in what proportion to the amount of the legacy ? A. — In such case equity will compel the husband to make a settlement upon the wife, and the proportion so settled is usually half of the legacy : (Smith's Man. Eq. Jur. 388, 5th edit. ; 1 Bright's H. & W. 241.) Q.— If a legacy be given to a married woman, and the husband sue for it in the Ecclesiastical Court, will equity interfere to prevent the payment to him ; and, if so, upon/what principle is such interference founded? / A. — If a legacy be given to a piarried woman, and the husband had sued for it in the Ecclesiastical /Court, a court of equity would have granted an injunction ; because /the Ecclesiastical Court had no autho- rity, like that of a court of equity, to require him to make a suitable settlement on her and her family i/ (Story's Eq. Jur. § 598) ; but now the Ecclesiastical Courts are abolislied by the statute 20 & 21 Vict. c. 77, which also enacts, " That no suits for legacies, or suits for the distribution of legacies, shall be entertained by the Court of Probate, or by any court or person whose jurisdiction a^ to causes and matters testamentary is abolished by this act :" (see se|t<^23 ; Halhlay's Articled Clerk's Hand- book, 44.) / Q. — Will a court of equity enforce a trust for an unmarried woman so as to secure property for her from the control, disposition, or inter- meddling of an after-taken husband or his creditors ? A. — Yes ; for property may be secured to an unmarried woman, with a clause against anticipation ; and, in such a case, it will be good against the marital rights of any future husband or his creditors : (Story's Eq. Jur. §§ 1384, 1414, and see ante, pp. 193 to 196 ; Smith's Man. Eq. Jur. 374, 379, 5th edit.) Q. — If property be given to the separate use of an unmarried woman, with a restraint against anticipation, will the separate use be enforced on her subsequent marriage ; and what will be the effect of the death of her subsequent husband on her separate usCj and what the eifect on it in case of her contracting a second marriage ? A. — As above seen, if property be given to an unmarried woman for her separate use, it will be enforced on her subsequent marriage. The separate use clause, either with or without a restraint against anticipa- tion, will be confined to the then existing, or the then intended, cover- ture, or will be also applied to other covertures, according to the apparent intention. If it appears to have been intended that every husband should be excluded, and the clause against anticipation operates during every successive coverture, in such case, although the woman while single, and when and as often as she becomes a widow, has the absolute dominion over the property, yet if she does not dispose of the property so as to put an end to the trust, and she marries again, the separate use clause, and the restraint against alienation, will be revived during such and every other subsequent coverture, so long as the property is held upon the original trust : (Smith's Man. Eq. Jur. 380, 5th edit. ; Burton's Comp. pi. 1391, and note, and see ante, pp. 193, 194.) Q, — In what cases can a married woman be compelled to appear and defend a suit separately from her husband ? A. — If the husband can satisfy the court that he is unable to prevail upon 'his wife to answer,, the court will relieveJiim from his wife's con- ^ Uigifizeaby Microson(& EQUITY. 26T tumacy, and order that the wife answer separately. So, when ^e hus - band and wif e are made defendants in right. "f the wjfR ; also, when the husband and wife live separate ; and when the husband is out of the jurisdiction, she may answer separately : (Ayck. Ch. Pr. 57, 80, 4th edit.) Q. — Wlien do the choses in action of the wife, who survives her hus- band, pass to the husband's executors ? A. — When he has reduced them into possession in her lifetime : (All- nutt's Pract. Wills & Adms. 248, 3rd edit.) Q. — Can a married woman bind herself by contract in equity, in any, and what, case ? A. — A married woman cannot bind her person in equity, but she may bind her separate estate. For a married woman having separate estate, being considered in equity as a feme sole with respect to the capacity of enjoying it, she is likewise considered as a, feme sole with respect to her capacity of charging it with her separate engagements. But, as before stated, no personal decree can be made against her ; the court can only affect separate estate in the hands of her trustees : (Story's Eq. Jur. ^ 1397, and note, 1400, and note ; Smith's Man. Eq. Jur. 381, 5th edit.) Q. — Can a married woman effectually assign or give security upon any property to which she 'Nvill become entitled on the happening of a future event ? A. — If the property to which the wife wiU be entitled on the hap- pening of the event be real property, she may either assign or give security upon such property. The disposition must be by deed, however, and the husband must join her in the deed, and it must be acknowledged by her, as required by the 3 8s 4 Will. 4, c. 74 : (see Browell's Eeal Pro. Stats. 125, 276, 277, et ante, pp. 194, 195.) If the property to which the wife is entitled be a reversionary equitable interest in personal pro- perty, or reversionary choses in action, she could not formerly (unless settled to her separate use), nor could she and her husband joining,^ effectually assign or give any security upon this description of property during the coverture ; for, notwithstanding such disposition, it would still be subject to the wife's right of survivorship, and equity to a settle- ment : (see Story's Eq. Jur. §§ 1412, 1413.) And this is still the case as [ to this species of property, if it came to the wife by any deed or instru- ment executed before the 31st Dec. 1857. But if it comes to her by any deed or instrument executed after this date, then she may (unles s expregsly restrained from so doing, or unless it be s ettled upon her on marriage as a pro vision for marriage,^) convey it by deed, properly exe- cuted, according to the provisions of the 3 & 4 Will. 4, c. 74 : (see 20 & 2\ Vict. c. 57 ; et ante, p. 195.) ^ ■Q. — At the time of marriage a wife is entitled to a beneficial lease for years, and she outlives her husband. Can the husband sell the lease during the coverture without her consent ; and, if it is not sold, to whom will it belong on the death of the wife ? A. — If on her marriage a woman is entitled to a beneficial lease for years, the husband may during the coverture charge or dispose of it as he thinks fit, but he cannot dispose of it by will ; and if the wife out- lives the husband, and he has not disposed of it during the coverture, it will belong to the wife : (see Will. Real Pro. 336, 4th edit., and the authorities there cited.) Q. — Is the wife a necessary party to a suit in equity for recovery of Digitized Jbj2 l\ai(^osoft® 268 EXAMINATIOK QUESTIONS AND ANSWERS. property accruing to her after marriage, and is there any difference in the rules of law and equity in this respect' ? A. — The husband may sue alone for any matter relating to land which the husband has in right of his wife, for injury to personal property, and for all personal property coming to the wife, or to husband and wife jointly during marriage, and on all contracts entered into with her during that period ; because the right of action accrued after the marriage : (see Arch. New C. L. Pract. 24, 25, 2nd edit.) In equity, however, as this distinction does not exist, it seems necessary in all cases where the property sought to be recovered is the property of the wife, that she should be a party with the husband, whether the right to the property accrued before or after marriage : (see generally Dan. Ch. Pr. 1 19, 120 ; 1 Smith's Ch. Pr. 100, 101, 2nd edit.; as to joining husband and wife in equity, see also Clark v. Angler, 2 Freem. 160 ; S. C. 1 Chan. Kep. 61.) Q. — Where a legacy is given to a married woman, in what way may her husband recover it ? A. — If the legacy is a specific one, and the executor has assented thereto, the husband may recover at law. If the legacy is charged on land, and other courts cannot take due care of the interests of all parties, equity will assert an exclusive jurisdiction, and it must be sued for there : (Story's Eq. Jur. §§ 591, 592, 595, 598.) In fact, unless the legacy is specific, and the executor has assented, equity may now be said to have exclusive jurisdiction over legacies ; for, as before shown, the Ecclesias- tical Courts are abolished : (see 20 & 21 Vict. c. 77, et ante, p. 266.) Q. — In cases where a married woman pleads, answers, or demurs separately from her husband, is any, and what, step necessary to enable her to do so ? A. — Yes ; an order is necessary, which is obtained Qn_notice_to_the_ wj^ when she refuses to answer, but in other cases it is obtained as of whrse : (Ayck. New Ch. Pr. 58, 80.) Q. — If a bill be filed on behalf of a married woman against her hus- band without her consent, will this circumstance, on its being made out to the satisfaction of the court, involve any, and, if any, what conse- quences ? A. — Upon an affidavit made by the wife stating that she was not cognisant of the suit, and had not consented to it, the bill will be dis- missed : (Dan. Ch. Pr. 404.) Q. — Will a court of equity make any difference in its decision on an objection to the next friend of a married woman, on the ground of the next friend being in indigent circumstances ; and if so, why ? A. — It is laid down, in several text books of "authority, that the next friend of a married woman must be a man of sybstance, because he is liable for costs. A suit by a married woman is substantially her own suit, and her ne xt friend is. chosen byjier; and, in this respect, there is a difference between a /ewe covert and an infant : (see Dan. Ch. Pr. 152, 1st edit. 120, 2nd edit.; 1 Smith's Ch. Pr. 103, 3rd edit.) But, in the case of Doioden v. Hook (8 Beav. 399), it was laid down that the next friend of a married woman, plaintiff^, need not be a man of substance ; and a motion made to stay proceedings until a new next friend was appointed, or security for costs given, on the ground that the next friend was out of employment and dependent on his mother for support, was dismissed. The case of Dowden v. Hook was followed by Jones v. Fawcett, 2 Phill. 278, and others. J3"t'£J^,f/z'|^j(j^^/^^gs^^^ doctrine has been sup- EQUITY. 269 ported, and it Las been decided that the next friend of a married •woman, plaintiff, must be a man of substance, and able to give security for costs : {Hind V. Whitmore, 27 L. T. Eep. 55.) Q. — If a bill be filed by a man and his wife touching the personal property of the wife, and the husband dies pending the suit, does or does not that circumstance cause an abatement of the suit ? A. — ^In this case, if the husband dies, the demand is considered in the nature of a chose in action of the wife, and survives to her, and t he su it does agt abate : (3 Ch. Eep. 40 ; 2 Freem. 133 ; Eede. Plead. 47.) Q. — Where husband and wife are defendants to a suit, how does the death of the husband affect the suit ? A. — There will be no abatement of the suit by the death of the hus- band, unless a new interest accrues to the wife : (see 1 Smith's Ch. Pr. 657, 3rd edit. ; 2 Vern. 249.) Q. — ^If access to her infant children be refused to a mother by the father or guardian, will the court interfere to any, and what, extent ; and, if so, under what authority ? A. — The Court of Chancery is empowered, upon the hearing of a peti- tion of the mother of an infant, or infants, being in the sole custody or ■control of the father, or any person by his authority, or any guardian after his death, to make an order for the access of the petitioner to such infant, or infants, at such times, and in such manner, as the court shall liink fit; and if such infant, or infants, be within the age of seven years, may order them to be delivered up to, and remain in, the custody of the mother until such age, and subject to such regulations as may seem just. An exception, however, is made in case of the adultery of the mother, where a judgment has been obtained in an action at the suit of the husband, or by sentence of the Ecclesiastical (now Divorce) Court. This is under the authority of the 2 8* 3 Vict. c. 54. LUNATICS. Question. — What is the origin of the Lord Chancellor's jurisdiction in lunacy, and how derived ; and to what other judges has it recently been extended f Answer. — The Sovereign, as parens patria, tad from the first the care of idiots and lunatics who had no other guardian. And a statute of Edw. 2, or some other earlier statute, besides giving him the custody of idiots, also vested in him the profits of their lands during their lives, and the King was made a trustee for them. Thus the Crown has both a general and specific authority ; and as the Chancellor is the person by whom the Crown exercises its powers, as keeper of the royal conscience and delegate of the Crown in this twofold capacity, the authority of the Chancellor is clearly derived from the Crown. By the stat. 14 & 15 Vict. c. 83, this jurisdiction is extended to the Lords Justices of the Court of Appeal : (sect, 5 ; and see Smith's Man. Eq. 366, 368, 5th edit.) Q. — If a defendant, on his failing to appear or answer, should be proved to the court to be of unsound mind (not so found by inquisition), Digitized by Microsoft® 270 EXAMINATION QUESTIONS AND ANSWEES. what will tlie court do in such circumstances, and upon whose appli- cation ? A. — Upon the application of the plaintiff in such a case, the court may order one of the solicitors t^te-SB MoK ff Snd to be assigned guardian of such defendant, by whom he may appear to and answer, or may answer the bill and defend the suit. It must be shown that a copy of the bill was duly served ; also, that notice of the application was served or left at the dwelling-house of the person with whom, or under whose care, such defendant was at the time of serving the bill, at least six days before the hearing of the application. The six days mentioned in the order must be six clear days ; but Sunday is reckoned as one of such days : (Ayck. Ch. Pr. 41, 4th edit.) Q. — How can a plaintiff procure the appointment of a guardian for a person of unsound mind ? A. — ^As already seen, if the lunatic is not so found by inquisition, the court will, on the application of the plaintiff, order one of the solicitors of the court to be guardian. But if he has a committee, the court will appoint the committee to be guardian ad litem, unless his interests are adverse to those of the lunatic : (Goldsmith's Eq. Pr. 210, 4th edit.) Q — In what cases will courts of equity interfere to carry into effect the contracts of lunatics ? A. — If, from the nature of the contract, there is not entire good faith, or it is not seen to be just in itself, or for the benefit of the lunatic (or idiot), courts of equity will set the contract aside or make it subservient to their just rights. But where there is entire good faith, and the con- tract is for the benefit of such persons, as to provide them with neces- saries, then courts of equity will uphold it : (Story's Eq. Jur. §§ 227, 228 ; Smith's Man. 58, 5th edit.) ALIENS. Question. — May an alien sue for any, and what, demands in the courts of this country ? Answer. — An alien can only sue for per^onalde mands in the courts of this country : (Co. Litt. 129 a ; Steph. Com. 4§^'voir2.) Q, — Is the right dependent on any, and what, circumstances ? A. — ^Yes ; for, if he is the subject of one that is an enemy to the Queen (or King), he cannot maintain a suit in the courts of this country until peace between the two nations is declared, even for personal demands : (Co. Litt. 129 a ; Steph. Com. 431, vol. 2.) Q. — Can a foreigner resident abroad file a bill for relief in the Court of Chancery here ; if so, what protection has the defendant in such a case against the plaintiff for costs ? A. — ^If the foreigner is the subject of a friendly nation, he may file a bill for personal demands in the Court of Chancery here (Co. Litt. 129 a ; Steph. Com. ubi sup.) ; but as he resides out of the jurisdiction of the court, the defendant will be entitled to an order for security for costs. Digitized by Microsoft® EQUiTr. 271 and, in the mean time, all proceedings will be stayed : (Ayck. Ch. Pr, 320, 4th edit.) Q. — Under what circumstances can a foreign state maintain a suit in an English court of equity, and by whom should the suit be instituted ? A. — The two nations must be at peace. Security for costs must also be given. The suit is instituted in the name of the reigning monarch of the foreign state, in the same manner as a suit is instituted by an English subject : (Goldsmith's Eq. Pr. 348, 4th edit.) It would seem, also, that the foreign state should be recognised by the Government here t& entitle it to sue : (Dan. Ch. Pr. 22.) PAETNEESHIP. Question. — What remedy has one partner against another in case of any breach of the articles of partnership, and what proceedings are necessary to be taken to secure the assets of the partnership ? Answer. — ^If the articles of partS§J§MEJ'''? J'ffi5t§r.-5§?^' ^"'^ there has been any violation thereof, it is properly remediable by an action of covenant. If there apa-ffintteiuartisleg nQtjiMerjeal, or tijg partpersljip i£_by,,parcil_agrefi,^enti the proper remedy for breach of the stipulations is by an.a£tion^o£^a,ssiH3ipsit., Both these remedies, however, are utterly inadequate to provide for many exigencies connected with the partner- ship ; besides this, the action of account was so dilatory, cumbersome and inconvenient as to be quite unfit for the purpose ; and, in some cases, it was not available at all. Hence courts of equity exercise_a_concurrent jurisdictionjwithjgurts of lawTBIair matters of partnarsjhip. If the part- nership is dissolved, or a dissolution contemplalfid, and the eiFecls are wanted to be secured, an account will he decreed, and a manager or receiver appointed to close the partnership business, and make sale of the partnership p roperty : (Story's Eq. Jur. §§ 661 to 663, 672, 683 ; Smith's Man. Eq. 286; 287, oth edit.) Ja-gebftaefslHp-t ranaaQtiono, a claim may Mow- b e ^ le d instead - of a toift ^ (Ayck . Ghi r- Pr. 106, lOT r) Q. — In what way, and under what circumstances, can partners compel an account infer se ? A. — Where a dissolution has taken place, or is asked for, or the part- , nership is expired, an account will be decreed : (Story's Eq. Jur. §§671, 672 ; Smith's Man. Eq. 287, 5th edit.) >-A n account may now bo ob tained by Ill i ug a cla i m i (aoo Ist Order, April 22, 1&5 P j Ayck. Ch. Pr. 40 5 ; 4 06 , lt h- o (Mfe-) Q. — In what cases will a court of equity decree a dissolution of the partnership ? A. — ^If it is impracticable to carry on the undertaki n g at all , , or at least according to the stipulations of the articles, or in case of the insan ity, perman ^ntjncapacity, or_grOT3 misconduct, of one of the parties, equity will_j^^e3, dissQlution/oiF the partnership -before the regular time: (Story's Eq. Jur. § 673 ; Smith's Man. Eq. 287. 5th edit.) Digitized by Microsoft® 272 EXAMINATION QUESTIONS AND AJSSWEES. Q. — How is a partnership dissolved in ordinary cases ? A. — A partnership may be dissolved in the ordinary way by death; by the act of parties ; by the bankruptcy of one, or both, or all ; or by effluxion of time : (Smith's Man. Eq. Jur. 287, 5th edit.) Q. — If a partner becomes lunatic, does the lunacy occasion a dissolu- tion of the partnership ? A. — The lunacy does not operate as a dissolution of the partnership j but if a partner is incapacitated by permanent lunacy from performing his duties in the partnership business, equity will decree a dissolution : (see Smith's Man. Eq. Jur. 287, 5th edit.) The dissolution has reference to the date of the decree, and not to the time of the lunacy : (Adams' Eq. 243.) SOLICITOR AND CLIENT. Question. — Explain and illustrate the general principles on which the Court of Chancery acts in adjudicating on dealings and transactions between a solicitor and his client. Answer. — Between attorney and client entire good faith is required; and during the existence of that relationship between them there is a general inability to deal with each other. If an attorney contracts with or takes • a bond from a person who at the time is his client, he is subject to the onus of proving the perfect fairness of the transaction ; as the relation between them must give rise to great confidence in the attorney, or to very strong influence over the client. And a gift made to an attorney, pendente life, will be set aside: (Story's Eq. Jur. §§ 310 to 313, 317, 319 ; and see Harrison v. Guept, 27 L. T. Rep. 208.) Q. — Can a solicitor purchase or contract beneficially to himself with his client under any, and what, circumstances ? A. — It seems that a solicitor cannot purchase from his client while that relationship subsists. But a solicitor is not incapable of contracting with his client, but the relationship must be dissolved, or the parties must take the characters of purchaser and vendor, and all the duties of those characters must be performed. If a solicitor deals with his client without another solicitor to advise him, there will be thrown upon him (as above stated) the whole onus of proving the fairness of the transaction : (see Sug. V. & P. Cone, View, 545, 548 ; and references supra.') Q. — ^If an attorney or solicitor be appointed and acts as trustee, is he entitled to be remunerated for his time and trouble, or only to be- repaid his expenses ? A. — As a general rule, trustees are not allowed any remuneration for their trouble, but only their expenses allowed, and a solicitor being a trustee forms no exception to the rule : {Broughton v. Broughton, I Jur. (N.S.) 966.) If, therefore, it is intended that he shall have his ordinary pro- fessional charges, a provision to that effect must be introduced into the instrument creating the trust : (see AUnutt's Pract. Wills & Adms. 70,. 71, 3rd edit. ; Ayck. New Ch. Pr. 484 ; 27 L. T. 12.) Digitized by Microsoft® EQUITY. 273 Q. — Define the nature and extent of a solicitor's lien on papers in his hands belonging to his client, and also of his lien on a fund recovered in a suit. A. — The lien of a solicitor on the deeds, books and papers of his client for his costs is not li ke a lien arisin a ; in the case of contract ; it has not the character of a pledge or a mortgage, but is merely a r ight to withho ld the d ^edg, &c. which have come into his possession as~ solicitor, and not a right to enforce his claim against the client. It prevails as against the representatives of the client, but it is only com- mensurate with the right of the client ; so that a prior incumbrancer cannot be affected by it ; and when a mortgage is paid off, the solicitor of the mortgagee cannot retain the deeds. But a solicitor has a lien on a fund realised in a suit for his costs of the suit, or immediately connected with it ; and this is a lien which he may actively enforce : (see Smith's Man. Eq. Jur. 278, 5th edit.) Q. — What authority ought to be taken by a solicitor from his client for the prosecution or defence of a suit in equity ? A. — Before commencing proceedings in the Court of Chancery, the solicitor should be careful to obtain a special authority from his client to institute or defend the suit; and although such authority may be hy parol, yet, according to the strict rules of practice, there ought to be a warrant in writing for that purpose. If such precaution is dispensed with, and the authority is afterwards disputed by the client, the onus probandi will lie on the solicitor : (Goldsmith's Eq. Pr, 206, 4th edit.) This authority is called a retainer. Q. — Can the solicitor be made a party to a suit for the purpose of com- pelling a discovery from him ? A. — If a bill of discovery be filed against a solicitor, he cannot be compelled to disclose the secrets of his clients ; unless the bill charges him with fraud, as if he has assisted a client in obtaining a fraudulent , / deed : (Story's Eq. Jur. §§ 1496, 1500.) , /7 AEBITRATION. Question. — Can an arbitrator under any, and what, circumstances be 'made a party in a suit for the purpose of impeaching his award ? Answer. — Yes ; upon due proof of misconduct, partiality, fraudj^or corruption ; and equity will set aside the award : (Story's Eq. Jur. #]45r,l452, 1498, 1500.) Q. — ^Where a submission to reference has been made a rule of a court of common law, has, or has not, a court of equity jurisdiction to afford relief against the award which has been made in pursuance of such submission ? A. — ^The statute 9 & 10 "Will. 3, c. 1.5, authorising submissions to arbitration to be made a rule of a court of record, seems to have ousted the jurisdiction of courts of equity over awards made under submissions pursuant to the statute. Where the award is obtained by undue means, the statute enables the court of which the submission is made a rule, to set it aside on afiidavit : (Story's Eq. Jur. § 1450, and note.) Digitized by^\^rosoft® ^'■* EXAMINATION QUESTIONS AND ANSWERS. WASTE. Question. — What is waste, and what are the acts which constitute waste ? Answer. — Waste is the destruction, or material alteration, by a tenant for life or years, of any part of the tenement, to the injury of the person entitled to the inheritance ; such, for example, as the demolition of buildings, or the cutting of timber. There are two kinds of waste, voluntary and permissive — the first by the tenant's voluntary act, as where he pulls down a house ; the other by his default, as by suffering it to remain out of repair : (see Co. Litt. 53 a ; 1 Steph. Com. 247, 276, and note, 3rd edit.) Q. — State some of the ordinary cases in which the Court of Chancery will interfere to prevent the committing of waste. A. — A Court of Chancery will restrain, by injunction, the committal of voluntar y wa ste ; as where a tenant for life pulls down buildings or fells timber. But courts of equity have no means of interfering in cases of permissive waste by a tenant for life : (Smith's Man. Eq. Jur. 344, &c. 5th"eair7 1 Steph. Com. 247, 276, 3rd edit.) Q. — ^What is meant by " equitable waste :" will a tenant for life, without impeachment of waste, be restrained from committing it ? A. — If a tenant for life has his estate given him by a written instru- ment,, expressly declaring his estate to, be without impeachment of waste, he is allowed to cut timber in a husbandlike manner, and to open mines, &c. ; but if he pulls down or defaces the family mansion, or fells timber, planted and growing for ornament, or commits injuries of a like nature, it is termed equitable waste, and the Court of Chancery will restrain him by injunction : (see Story's Eq. Jur. § 912 ; Will. Eeal Pro. 24, 25, 4th edit. ; Smith's Man. Eq. 344, 5th edit.) Q. — ^Will a court of equity interfere before the defendant's appearance to stay waste ? A. — Yes ; but the application for the injunction must be supported by affidavit, verifying the statements in the bill. And, in such cases, leave will be granted to serve notice of motion for the injunction before the bill is filed : (see Ayck. New Ch. Pr. 215, 216.) Q. — Can a "court of equity permit the tenant for life of an estate who is impeachable for waste to commit waste ; and will it permit a tenant, whether so impeachable or not, to grant a lease for a longer period than twenty-one years, or the life of such tenant ? If so, state under what circumstances, and by what authority, it has such power. A. — It may be as well to observe that the Court of Chancery will restrain a tenant for life impeachable for waste, from committing it. So it will restrain a tenant for life, whose estate is given to him unimpeach- able for waste, from committing what is termed equitable waste :. (see Story's Eq. Jur. §§ 912, et seq.) By the stat. 19 & 20 Vict. c. 120 (Leases and Settled Estates Act), however, the Court of Chancery is empowered, if it thinks proper and consistent with a regard to the interest of all Digitized by Microsoft® EQUITY. 275 parties entitled under the settlement, and subject to the provi^ons and restrictions contained in the act, to authorise leases of any ^settled estates, or of any rights or privileges over or affecting any settled estates, for any purpose whatsoever, whether involving waste or not, provided the following conditions be adopted : Every such lease shall be made to take efiect in possession within one year after the making thereof, and shall be for a term of years not exceeding, for an agricultural or occu- x pation lease twenty-one years ; for a mining lease or lease connected t. with water, forty years ; and for a building lease, ninety-nine years ; or where the court shall be satisfied that it is the usual custom of the district and beneficial to the inheritance to grant leases (other than agricultural leases) for longer terms, then for such term as the court directs. Further conditions are imposed: (see 19 & 20 Vict. c. 120, s. 2; 21 & 22 Vict. c. 77.) Q. — ^Will a court of equity restrain a tenant for life without impeach- ment of waste from cutting down any, and what, timber ; and supposing such tenant for life to cut down such timber and to sell the same, to whom will the money produced by such sale belong ? A.— A court of equity will restrain a tenant for life without impeach- ment of waste from cutting down timber which is planted and growing for ornament or shelter of the property ; this being termed equitable waste : (see Story's Eq. Jur. §§ 912, 915.) If the tenant for life should cut down such timber and sell it, the proceeds will belong to the r emain- derma n or revera ifiner. The proper remedy is to file a bill for an injunc- tion and account : (Story's Eq. Jur. §§ 515, &c.) EECEIVEK, Question. — What are the ordinary cases in which a receiver is appointed ? And state any special cases. , Ansiver. — The ordinary cases in which a receiver is appointed are/ j those in which t he suit aris es out of claimsby parties having equitabl e ■■ inlerestsjnjhejubjectj (Story's E^TjurTirSfg, 830) The couff^l] not appoint a receiver unless a cause is pending, except in the case oA' idiots and lunatics. A receiver was appointed of a Government pension, the trustees being out of the jurisdiction : (Ayck. Ch. Pr. 458, 4th edit.) So where there is a manifest breach of trust by an executor by/, wasting the property, a receiver will be appointed, but not otherwise :?''' (gea Goldsmith's Eq. Pr. 213, 4th edit.) J^^n-i^i/f^/fy Jyi- y/'/U'^xey^^k C- Q- — Give instances of persons who, in a suit in equity praying for a , receiver, are disqualified from being appointed such receiver. A. — A peer cannot be appointed a receiver ; neither can S ^receiver- g" general of a county, nor a master in Chancery ; so the solicitor in, the cause cannot be appointed : (see Ayck. New Ch. Pr. 457.) 'Twy- m l u^^aJf- Q. — What are the duties of a receiver? A. — His duties are to receive the rents, issues, and other profits of •lands, or other things in question in the court, pending the suit ; to pass Digitized Jbjg l^icgosoft® 276 EXAMINATION QUESTIONS AND ANSWERS. his accounts, and pay in the balances at the time appointed : (see Ayck. Ch. Pr. 457, et seqAt\i edit. ; Smith's Man. Eq. 351, 352, 5th edit Q. — Is any, and what, security required from a receiver in a suit ? A. — Formerly, the receiver was directed to give security, to be approved of by a master, duly to account for and pay what he should receive. In future, "where an order is made directing a receiver to be appointed, unless otherwise ordBred, the person to be appointed is first to give security, to be allowed by the judge to whose court the cause is attached, and to be taken before an officer or agent of the court in the county, if there shall be occasion, duly to account for what he shall receive, &c. : (see further 13th- Order, 16th Oct. 1852 ; Ayck. Ch. Pr. 460, 4th edit.) Q. — After a receiver has received the rents, and paid all outgoings, what is his duty with respect, to the balance in his hands ? !■ A. — As soon as the accounts have been passed, and the certificate ob- tained, the receiver's solicitor should next bespeak a direction to pay in his balance, for which purpose he attends at the accountant-general's office ; and upon his producing the order directing the appointment of the receiver, together with the certificate, the direction will be prepared, and may generally be obtained on the second day following ; and the money is then paid into the Bank of England : (see Ayck, Ch. Pr. 462, 463, 4th edit.) Q. — If previously to a decree a receiver is appointed, and the decree does not in any way notice the appointment, does the omission afiect the continuance of the receiver ? A. — ^The appointment of a receiver made previously to a decree will be superseded by it, unless the receiver is expressly continued : (Dan. Ch. Pr. 1629, 2nd edit.) Q. — Is a receiver liable under any, and what, circumstances for moneys belonging to the estate deposited by him with a banker, who afterwards fails ? A. — A receiver is liable for any loss which may be occasioned to the estate from his wilful default ; therefore, if he places money received by him in what he knew to be improper hands, he will be personally liable ; but if he deposits money with a banker for safe custody, he will not be answerable for the failure of the banker, if the moneys are not mixed with his own, and they were bona fide deposited for safe custody under circumstances in which they could not properly have been paid into court. A receiver will, however, be answerable for the loss occasioned by the failure of a banker with whom he deposits moneys for security, if the deposits be made in such a way that he parts with the absolute control over the fund : (Dan. Ch. Pr. 1629, 2nd edit.) Digitized by Microsoft® EQUITY. 2f1 INJUNCTIONS. Question. — "What is an injunction? And mention the different kinds of injunctions. Answer. — An injunction is a writ in the nature of a prohibition. Injunctions are of two kinds : 1 . SgefiiaHnlunctions, by which parties are restrained from committing waste, damage, or injury to the property of others. 2.^^ommon injunctions, by means of which the Court of Chancery, upon a bill of discovery being filed, stays or controls the pro- ceedings in an action at law until the plaintiff at law (defendant in equity) has fully answered all the inquiries addressed to him : (Ayck. Ch. Pr. 214, 4th edit.) But the practice with respect to common injunctions is now assimilated, so far as the case wiU admit, to the practice with respect to special injunctions generally : (15 & 16 Vict. c. 86, s. 58 ; Ayck. ubi sujy.) Q. — State generally in what cases the Court of Chancery will interfere by way of injunction. / ^A. — ^Injunctions are granted for staying proceedings at law ; to prevent waste ; the continuing of nuisances ; pirating copyright ; using trade marks; in cases ofbreaches of patebts foj- iuTCntions ; quieting possession ; publication of priTOfe letters ; the sailing of ^ship; to restrffin the carrying on of a trade contrary to lawful covenants, &c. : (see Goldsmith's Eq. Pr. 103, ef seq. 4th edit. ; Story's Eq. Jur. § 874, et seq. ; Smith's Man. Eq. 344, et seq. 5th edit.) Q. — ^How is an injunction obtained ? A. — In order to ground an application for an injunction, it is neces- sary that a bill should be first filed, and the writ must be prayed for in the prayer of relief. The injunction is obtained by motion to the court, and is in some cases granted on an ex parte application, while in others it is necessary to serve the defendant with notice of motion. After the appearance of the defendant, a motion for an injunc- tion cannot be made ex parte. Every application for a special injunc- tion before answer, except in an interpleader suit, must be supported by an affidavit verifying the statements in the bill. NaiSW^tion js. now_granted as of course : (Ayck. Ch. Pr. 214, et seq.; Smith, supra.) Q. — ^Is the time when the party applying for an injunction first became acquainted with the circumstances on which the application is founded, material or immaterial? In either way of answering the question, give the reason. A. — An injunction will not be granted in cases of gross laches, or delay, by the party seeking the relief in enforcing his rights ; as, for example, where in case of a patent, or 'copyright, the patentee has lain by and allowed the violation to go on for a long time with'out objection or seeking redress ; because, as before stated, equity discounte- nances laches, and an injunction in such a case would not be a fit mode of redress under all the circumstances : (see Story's Eq. Jur. §§ 895, 896, 959 a.) Q. — On an application for an injunction, will the omission by tha Digitized by Microsoft® 27s EXAMINATION QUESTIONS AND ANSWERS. party making such application to state fairly all the circumstances within his knowledge material to the case, involve any, and, if any, what par ticular consequences ? A. — An injunction that has been obtained on a concealment of facts may be dissolved on that ground. But this does not preclude the party from making an application for another injunction upon the merits : (Ayck. Ch. Pr. 218, 4th edit.) Q. — May a special injunction be obtained in any, and what, cases without notice 1 A. — When the grievance sought to be restrained is very pressing, the injunction may be applied for upon a certificate of the bill having been filed, and an affidavit verifying the statements in the bill, without either' serving the defendant with a copy of the bill or notice of motion : itS£)Jk^/fg^tgij^i;jy^g^^/^^re, in general, the court EQUITY. 281 will not grant an immediate injunction, but will require the validity of the patent to be ascertained by a court of law. If the patent has been granted for a length of time, and the patentee has put the invention into public use, and has had an exclusive possession of it under his patent for such a period of time that there is a fair ground for presuming he has an exclusive right, the court will ordinarily interfere by way of preliminary injunction ; still the right must be established in a court of law. Similar principles apply to cases of copyright : (see Story's Eq. Jur. §§ 934, 935.) For the purpose of trying its validity at law, an issue is sent. But, it must be remembered, the Court of Chancery may now determine the legal title or right of parties seeking equitable relief with- out requiring them to proceed to establish such legal title or right at law, under the stats. 15 & 16 Vict. c. 68, and 21 & 22 Vict. c. 27. But even under the latter act it has been decided that the court has no power to try by jury a question of right, but only a question of fact : (see Griffiths V. Turner, 33 L. T. Kep. 5 ; see also George v. Whitmore, 32 L. T. Eep. 290.) Q. — Where an injunction has been obtained for stay of proceedings at law, is the plaintiff entitled to an order to amend his biU without preju- dice to such injunction ? A. — ^Tes ; the plaintiff may obtain an order to amend his bill without prejudice to an injunction ; but. in such a case, he must amend within seven days from the date of the order : (16th Order, May 1845, art. 35.) - The 35th article has been held not to apply to a suit in which a special injunction has been obtained; and, as the common injunction is now abolished, the 35th article would seem, under the new practice, not to apply in any case : (see Ayck. New Ch. Pr. 2 1 , 22 ; Hallilay's Ch. Suit, 42.) ' Q. — If a bill is filed to stay proceedings at law, and an inj unction granted which is afterwards dissolved upon the defendant's answer, can a plaintiff amend his bill, and again apply for an injunction ? A. — Yes ; he may amend his bill, and again apply for an injunction to Stay proceedings at law. Q. — How is an injunction put in force ? A. — By serving a copy of the writ on all the parties enjoined ; and, on breach thereof, moving the court that all the parties may stand com- mitted : (Ayck. Ch. Pr. 217, 220, 4th edit.) Q. — Is it necessary for a defendant to answer before applying to dissolve an injunction ? How is the common injunction dissolved ; and when, and how, can the special injunction be dissolved? A. — Formerly a defendant could not have dissolved the common injunction till he had answered: (see. Ayck. New Ch. Pr. 218.) But now, as the practice on the common injunction is assimilated to that of the special injunction, there is no difference in the mode of proceeding to dissolve injunctions. The course. js to ser ve the plaintiff's solicitor withh a notice of motion to dissolve; and the defenda nt may either make t he \ motioni.on affidavits in answer to t hosefi led bvThe plaintiff or he may 1 wait_ until Jba_haa--filed Jiia_answer,, a nd then move to dissolve the ] injunctio n, us ing his answ^n^s^^an. affidavit- (see 15 & 16 Vict. c. 86 j- SmltE's Ch. Prr487, 5th edit.; Drew.'Ch. Pr. 34.) Digitized^b^ Microsoft® 282 EXAMINATION QTJEBTIONS AND ANSWERS. WRIT OF NE EXEAT REGNO. Qfiestion, — In what cases, and upon what grounds, is a writ of ne eaieat regno granted ? Answer. — This writ is granted in those cases in which the plaintiff is apprehensive that the defendant is about to leave the kingdom for the purpose of avoiding the plaintiff's demands. It can only be obtained when the plaintiff has an ^guitabledemand, except in - the case of an order for alimony, and then only for arrears and costs actually due, or for a sum due upon the balance of an account. The demand must be clear, and a money demand, and actually due : (Ayck. New Ch. Pr. 221; Smith's Man. Eq. 349, 5th edit.) Q. — In case of a demand for which the debtor cannot be arrested, and the debtor is about to quit the country, will a court of equity interfere to prevent his so doing ? And what are the necessary proceedings to be taken for that purpose ? A. — In such a case a writ of ne exeat regno must be applied for. It may be obtained at any period of the suit ; but a bill must be first filed. The application must be supported by affidavit, verifying the material allegations in the bill. When the order is obtained, the writ must be then prepared, and forwarded to the under-sheriff of the county into which it issues, by whom it is executed : Ayck. New Ch. Pr. 222, 223 ; Smith, supra.) Q. — State the origin of the jurisdiction assumed by courts of equity in granting writs of ne exeat regno. A. — It was originally a prerogative writ applicable only to the pur- poses of State. It has, however, of late become a part of the ordinary process of the court, and may be eonsidered as a species of equitable bail : (Ayck. New Ch. Pr. 221 ; Story's Eq. Jur. § 1467, and note; Smith's Man. Eq. 349, 5th edit.) SALE. Question. — What are the circumstances which will warrant the open- ing of biddings at a sale, and what is the course of proceeding for that purpose ? Answer. — In general, the court will not open the biddings after the purchaser has confirmed the chief clerk's certificate, unless some particular principle arose out of his character, as connected with the ownership of the estate, or some trust or confidence, or his own conduct in obtaining the certificate. In ordinary cases, the Digitized by Microsoft® EQTJiTr. 283 court will not permit the biddings to be opened, except upon an advanced bidding. As a general rule, 10^. per cent, was formerly considered to be a sufficient advance on a large sum. In some cases the court will be satisfied with less, and in others require more. An order is necessary for the purpose ; it is obtained on special motion, notice of which must be served on the purchaser's solicitor, as also on the solicitors of the parties in the cause. If the order is granted, the appli- cant must then pay in his deposit, as also the costs, charges and expenses of the first purchaser, and thereupon a re-sale takes place: (see Ayck. Ch. Pr. 395, et seq.; Smith's Ch. Pr. 5th edit.) Q. — Estates are liable to the payment of debts, and such estates are vested in a tenant for life, or other person having only a limited interest, and the remainder or reversion in fee is vested in other persons, whether within or out of the jurisdiction of the court of equity; how can the sale of such estates be perfected, and under what authority ? A. — If the estates liable for payment of debts are vested in the tenant for life, or other person having a limited interest by devise^ with the remainder or reversion over, which might or might not be vested in some person from whom a conveyance or other assurance of the same cannot be obtained, and a decree be made for the sale thereof for the payment of such debts, t he court ma y direct the t enan t for life, or person having a limited interest, to convey the ■^h^e estate in the premises of which he is only tenant for life, &c. : (see 11 Geo. 4 & 1 Will. 4, c. 47, s. 12; 2 & 3 Vict. c. 60.) The power given by these acts will now, in a great measure, be superseded by the provisions of the recent act to consolidate and amend the laws relating to the conveyance and transfer of real and personal property vested in mortgagees and trustees j (see 13 & 14 Vict. c. 60, et ante, pp. 161, 236, 237.) ^ n^A^ if cn-cic^ Q. — A freehold estate stands limited to A. for life, remainder to his son B. (an infant) for life, remainder to the first and other sons of B. in tail, and the settlement contains no power of sale. Can the estate be sold, and what proceedings are necessary for the purpose ? A. — If a freehold estate stands limited to A. for life, remainder to his son B. (an infant) for life, with remainder to the first and other sons of B. in tail, and the settlement contains no power of sale, the estate may nevertheless be sold by the authority of the Court of Chancery. The application may be made by A. upon petition in a summary way under the provisions of the 19 & 20 Viet. c. 120, " An Act to facilitate Leases and Sales of Settled Estates :" (see ss. 1 1, 16.) Q. — Refer to any recent act of Parliament under which the Court of Chancery (notwithstanding the absence of a power in the settlement) can authorise a sale or lease of settled estates without a special application to Parliament. A. — By the 19 & 20 Viet. c. 120, the Court of Chancery is empowered to grant leases of settled estates, subject to certain conditions (see next answer), and authorise sales of settled estates and of timber (not being ornamental timber) growing on any settled estates ; such sale being con- ducted and confirmed in the same manner as sales under a decree of the court: (see ss. 2, 11.) But sect. 27 enacts, that the court is not to authorise any lease, sale, or act which could not have been authorised by the settlor. Q. — State shortly the ci^Mmstangfis in whic the court is, by the act 284 EXAMINATION QUESTIONS AND ANSWERS. referred to, authorised to exercise jurisdiction, and the mode of proceding. A. — With respect to leases, the lease must be made to take effect in possession or within one year after the making thereof ; and if it is an ' agricultural or occupation lease, the term must not exceed twent^one years ; if a mining or water lease, it must not exceed forty years i^^if a building lease, not more than ninety-nine years, unless the court otherwise orders. The best rent that can reasonably be obtained must be reserved, payable half-yearly or oftener, without fine. If the lease is of any earth, coal, stone, or mineral, and the person for th e time bein g entitled to the rent i s-alsQ entitled to work su ch miriRp for^bia ow n benefit , a portion of the rent must be invested. No such lease is to authorise the felling of trees, except when necesssary for building pur- poses, &c. The lease must be by deed, and a counterpart executed by the lessee, and must contain a condition for re-entry on non-payment of rent for. twenty-eight days after it becomes due : (sect. 2.) The court directs who is to execute the deed as lessor : (sect. 9.) The mode of making the application to the court under this act is by petition in a sum- mary way : (sect. 16.) The app lication must_ be made with the consent of the f oll owing person s : a tenant in tail under the settlement, if of full age, and if more than one, then the first of such tenants in tail, and aU persons in existence having any estate or interest under the settlement prior to the estate of such tenant in tail, whether as trustees for living or unborn persons, or in their own right : (sect. 17.) But if these persons, not having an estate of inheritance, refuse to consent, or their consent cannot be obtained, the court may nevertheless give effect to the petition, not affecting the interests of such parties : (see sect. 18 ; and see further the act.) (a) DISCOVERY. Question. — What is a bill of discovery ? ^ Answer. — Every bill is in reality a bill of discovery; but the species of bill usually so distinguished by this title is a bill for discovery of facts resting in the knowledge of the defendant, or of deeds, or writings, or other things in his custody or power, and seeking no relief in conse- quence of the discovery : (Ayck. Ch. Pr. 203; Story's Eq. Jur. § 1483 ; Smith's Man. Eq. 398, 5th edit.) Q. — When the defence to an action at law arises from facts within (a) The following question may easily be answered from tins and the foregoing answer : A. is entitled to the possession of a settled estate for a lease of yeai-s determinable on his death. The settlement contains no power of leasing. Can the defect be supplied, and by what means? Will A. have to obtain the concurrence of any other person interested under the settlement? r^- -j.- ,u ««■ j^^ Digitized by Microsoft® EQUITY. 285 the knowledge of the plaintiffs at law, how can the defendant at law elicit such facts from the plaintiffs at law ? A. — Formerly his only mode of so doing would have been by filing a bill of discovery, but now by the combined effect of the 14 & 15 Vict. c. 99, and the 17 & 18 Vict. c. 125, it is no longer necessary to go to equity for the purpose of obtaining a discovery of facts resting in the knowledge of the opposite parties: (see ante, p. 226.) Q. — A. brings an action against B., in which C. is a material witness for the former, but without having any interest whatever in the matters in question between these two parties. Can or cannot B., who is ignorant of what C. will depose to against him, compel C. to disclose his evidence by means of a bill of discovery in a court of equity ? And give the reason for your answer. A. — It is ordinarily a good objection to a bill of discovery that it seeks the discovery from a defendant who is a mere witness and has no interest in the matter in question, for, as he may be examined as a witness in the action, there is no ground to make him a party to a bill of dis- covery, unless the bill charges him with fraud ; as in the case of an attorney who has assisted a client in obtaining a fraudulent deed : (see Story's Eq. Jur. §§ 1489, 1495, 1499, 1500; Smith's Man. Eq. 400, 5th edit.) Q. — Of what matters will the court not compel a discovery ? A. — The following are some of the matters in which equity will not compel a discovery : where the policy of the law exempts th e defendan t / from the discovery, as if a bill of discovery is filed against a marrip.fl woma n to compel her to disclose fa cts_wMghjna y charge her husband ; or when the bill seeks to compel a counsel or _solicitar-to disclose the secrets of his clients. So equity will not compel a discovery of matters t which are not material in the suit ; or of a man's own title ; or generally j where the discovery would subject the defendant to a criminal prosecu- •^z ■ tion or to ecclesiastical censures: (see Story's Eq. Jur. § 1489, &c.; Smith's Man. Eq. 399, et seg. 5th edit.) Q. — What is the distinction between a bill for discovery and relief, and a bill for discovery only ; and in what respect do the proceedings on the two bills differ ? A. — A bill for discovery and relief goes on to a hearing, whilst a bill for discovery only, stops when the discovery is obtained, and never goes to a hearing : (Ayck. Ch. Pr. 204, 4th edit.) Q. — Has any, and what, alteration been made in the practice with respect to reading the answer to a cross bill for discovery? A. — Yes ; the answer to such cross bill may now be read and used by the party filing such cross bill in the same manner and under the same restrictions as the answer to a bill praying relief may now be read and used: (42nd Order, Aug. 1841 ; Ayck. ,Ch. Pr. 209, 4th edit.) Q. — In order to sustain a bill of discovery, what must clearly appear on the face thereof? A. — ^The matter touching which the discovery is sought, the interest of the plaintiff and defendant in the subject, and the right of the first to require the discovery from the other : (Ayck. Ch. Pr. 204, 4th edit.) Q. — In the case of a bill being filed merely for discovery, what is the rule respecting the payment o{ costs jjf the moceedings ? 286 EXAMINATION QUESTIONS AND ANSWEES. -4- — As soon as the defendant has filed his answer, and the time allowed for excepting has expired, he may move for an order as of course for his costs of suit : (Ayck. Ch. Pr. 205, 4th edit.) Q. — Can the defendant move to dismiss a bill filed for discovery only, and not for relief ? A. — When the bill does not pray relief, the defendant cannot move to dismiss the suit : {Woodcock y. King, 1 Atk. 80; Ayck. Ch. Pr. 204; Hallilay's Ch. Suit, 80.) Q. — State the mode by which a defendant can, under the act 15 & 16 Vict. c. 86, obtain discovery from the plaintiff, and how such discovery was obtained under the former practice. A. — By sect. 19 of the above act it is enacted, that it shall be lawful for any defendant in any suit, whether commenced by biU or by claim (but as to suits commenced by bill, where the defendant is required to answer the plaintiflfs bill, not until after he has put in a full and sufficient answer to the bill, and without filing any cross bill of discovery), to file in the record office of the court interrogatories for the examination of the plaintiff, to which shall be prefixed a concise state- ment of the subjects on which a discovery is sought ; and to deliver a copy of such interrogatories to the plaintiff or his solicitor ; and the plaintiff is bound to answer such interrogatories in like manner as if they had been contained in a bill of discovery filed by the defendant against the plaintiff: (see 15 & 16 Vict. c. 86, s. 19; Ayck. Ch. Pr. 105; Hallilay's Ch. Suit, 32.) Under the former practice a cross bill must have been filed to obtain such discovery : (ib.) Q. — Can the defendant, before or after answering, examine the plain- tiff himself upon matters material to the suit ?. Can he obtain inspection of documents iii the plaintiff's possession to enable him to answer ; and how can the defendant obtain relief in the suit so instituted against him ? A. — As above stated, the defendant may file interrogatories for the examination of the plaintiff, but in a suit commenced by bill, which the defendant is required to answer, not until he has fully answered the plaintiff's bill, unless the court otherwise orders: (15 & 16 Vict. c. 86, s. 19.) But, as the court is not empowered under this act to administer relief consequent upon the discovery, it will still be necessary, where the defendant wants such relief, for him to file a cross bill : (see Hallilay's Ch. Suit, 32 ; Ayck. New Ch. Pr. 105.) This act also empowers the court to make an order for the production of documents, relating to the suit, by the plaintiff on oath ; but where the defendant is required to answer, not until he has fully answered. The order for production and inspection may be obtained on summons at chambers : (see Hallilay's Ch. Suit, 51 ; and see hereon Walker v. Kennedy, 29 L. T Eep. 37.) Digitized by Microsoft® EQUITY. 287 INTERPLEADEE. Question. — ^What is the nature and effect of a bill of interpleader ? Answer. — Where two or more persons claim the same thing by different or separate interests, although derived from the same source, or the one from the other, and another person, not knowing to which of the claimants he ought of right to render or deliver the pro- perty in his custody, and wherein he claims no interest, fears he may be hurt by some of them, he may exhibit a bill of interpleader against them. A bill of interpleader is an original bill : (see Ayck. Ch. Pr. 199, 4th edit.; Story's Eq. Jur. § 806, and note ; Smith's Man. Eq. 329, 5th edit.; Goldsmith's Eq. Pr. 129, 4th edit.) Q. — What affidavit must a plaintiff make on filing a bill of inter- pleader ? A. — The plaintiff must annex to his bill an affidavit that it is not exhibited in collusion with any of the parties : (Ayck. Ch. Pr. 200; Smith's Man. Eq. 332, 5th edit.; Smith, sup.) Q. — Where a deposit is paid to an auctioneer at a sale, and there should arise a dispute between the vendor and purchaser, and an action is threatened or commenced against him by either for the deposit ; what is the course to be pursued by the auctioneer to protect himself against their adverse claims ? A. — He must file a bill of interpleader. But if an action is brought against an auctioneer for a deposit, and he insists on retaining his com- mission, he cannot file a bill of interpleader, as he then claims an interest in the fund : (see Story's Eq. Jur. §§ 807, and note, 808, 814, and note.) Q. — A. and B. claim property which is in C.'s hands, but in which C. has no interest. How can C. protect himself ? If C. had himself any interest in the property, would it make any difference in the nature of the proceedings ? A. — If C. claims no interest in the property, he may file a bill of interpleader, and so obtain protection ; but if he himself claims an interest in the property, he is then precluded from filing a bill of interpleader : (see Story's Eq. Jur. §§ 806, and note, 807, and note.) PERPETUATING TESTIMONY. ■ Question. — What is the nature and effect of proceedings in equity to perpetuate the' testimony of witnesses ? Answer. — A bill to perpetuate testimony is an original bill, but does not pray relief against the defendant. When the testimony of witnesses is itt danger of ''si'g/J^|e^fe^\;^^^^to which it relates can be 288 EXAMINATION QUESTIONS AND ANSWERS. made the subject of judicial investigation, a court of equity will lend its aid to preserve and perpetuate the testimony : (Ayck. Ch. Pr. 201 ; and see Smith's Man. Eq. 403, 5th edit.) Q. — If an estate be devised by will away from the heir-at-law, and the devisee is desirous to secure the testimony of the witnesses to the will, what proceedings in equity can the devisee take to accomplish this object ? A. — The devisee may exhibit a bill against the heir setting forth the will verbatim, and suggesting that the heir is inclined to dispute its validity ; and then, when the cause is at issue, the witnesses to the will are examined, after which the cause is at an end ; but the heir is entitled to his costs, even though he contests the will : (see Story's Eq. Jur. § 1506 ; Smith's Man. Eq. 404^ 5th edit.) This bill is a bill to per- petuate testimony. Q. — Has any recent statute upon this subject been passed ? If so, state its general scope. A. — Yes ; the 5 & 6 Vict. c. 69, s. 1, enacts, that any person who would under the circumstances alleged by him to exist, become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, shall be entitled, from and after the passing of this act, to file a bill in the High Court of Chancery to perpetuate any testimony which may be material for establishing such claim or right : (see further Ayck. Ch. Pr. 201, 202, 4th edit.) Q. — A party entitled under a devise to real estate in remainder, after the death of another who is in possession, is apprehensive that the validity of the devise may be questioned at law on the death of the party in possession, and that the witnesses to prove the validity of the devise may then be dead. WiU a court of equity give him any assistance, and in what manner ? A. — ^Yes ; he may file a bill to perpetuate the testimony of the wit- nesses to the devise : (see Story's Eq. Jur. §§ 1306, 1508.) Q. — In what cases cannot the evidence taken under a bill to. perpetuate testimony afterwards be used ? A. — Such evidence cannot be used if the witnesses are alive, and capable of attending, and within the jurisdiction at the time of the trial : (see Story's Eq. Jur. § 1507, et seq. ; Ayck. New Ch. Pr. 202 ; Smith's Man. Eq. 406, 5th edit) THE COURTS, JUDGES, AND OFFICERS THEREOF. Q. — Name the several courts having equitable jurisdiction, distin- guishing those in which that jurisdiction is limited, and to what extent. A. — The principal court of equity in England is the High Court of Chancery, of which tiljgiBzeif OjjqWJeHoBCaKOhe head : the different EQDiTr. 289 branches of the court are the Court of Appeal, presided over by the Lords J ustices and the Lord Chancellor, the Court of the Master of the Rolls, and the Vice-Chancellors' Courts, of which there are now three. There are also courts of equity in the Counties Palatine, in the two universities, in the city of London, and in the Cinque Ports, but their jurisdiction is limited : (4 Steph. Com. 41 n, 3rd edit.) The Common Law Procedure Act 1854 (17& 18 Vict. c. 125), has also invested the common law courts with an equitable jurisdiction : (see ante, p. 228.) Q. — Enumerate the equity judges in their order and rank, and describe the constitution of the courts of appeal, including the highest in the realm, and the mode of giving judgment in each. A. — ^The order in which the equity judges rank is : 1. The Lord High Chancellor. 2. The Master of the Rolls. 3. The Lords Justices. 4, Vice-Chancellor Sir R. T. Kindersley. 5. Vice-Chancellor Sir J. Stuart. 6. Vice-Chancellor Sir W. P. Wood. The Court of Appeal is constituted by the statute 14 & 15 Vict. c. 83, by which act two Lords Justices sitting alone or with the Lord Chancellor, or one of the Lords Justices sitting with the Lord Chancellor, may hehr appeals, and exercise the same jurisdiction, powers and authorities as are exercised by the Lord Chancellor. The House of Lords is the highest court of appeal in the realm, and is composed of the peers of the realm, but the judgments are in general only considered by the law lords. It is constituted by the common law. The judgments of each court are delivered by the respec- tive judges thereof in public. The Lord Chancellor is empowered by 15 & 16 Vict. c. 80, s. 60, to deliver a written judgment within six weeks after he has retired from office. The judgments of the House of Lords are delivered by the Lord Chancellor, which are adopted by the House. Q. — State the duties of the clerks of records and writs ? A. — ^Their duties are to receive and file bills, "^^yr^, answers, and other proceedings in the suit, to enter appearances, seal writs, 8sc. Q. — State the duties of the registrars ? A. — ^They are principally to set down causes, to take down minutes of the judgments, to draw up decrees and orders, and settle and sign them. Q. — "What is the distinction between the judicial and the adminis- trative jurisdiction of the court ? Name the officers who preside over each branch. A. — The judicial jurisdiction of the court consists in the decision or determination of the matter which is really at issue between the litigants. The administrative jurisdiction of the court con- sists in the regulation of the proceedings used by the court to assist it in its judicial capacity, and to enforce its orders and decrees. The judicial officers of the court are the Lord Chancellor, the Master of the Rolls, the Lords Justices , and the three Vice-Chancellors. The administrative officers are the igg|t^' '3ne" registrars, the taxing masters, the accountant- general, the chief clerks, and the record and writ clerks ; but some of the duties of these ai-e also partly judicial, as matters that come before the masters and their successors, the j udges' chief clerks. Q. — Of what courts is the appellate jurisdiction composed ? A. — The courts of appeal are the Lords Justices' courts, created by the stat. 14 & 15 Viet. c. 83, by which the two Lords Justices, either with or without the 1'°'''^ /^fefW^^UoRiz ^^p^fflKWSf ^d to hear appeals and 290 EXAMINATION QUESTIONS AND ANSWERS. exercise the same powers and jurisdictions as are possessed by the Lord' Cliancellor. The House of Lords is (as before stated) the highest court of appeal, and is composed of the peers of the realm, but its judgments are usually considered and delivered by the law lords only. Q. — How and when did the House of Lords gain the power of sitting as the highest court of appeal ? A. — The House of Lords succeeded to this authority, as of course, upon the dissolution of the Aula Regia. For, as the barons of Parlia- ment were constituent members of that court, and the rest of its juris- diction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside, it followed that the right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived : (see 3 Steph. Com. 412, 3rd edit.) (a) COMMENCEMENT OF LITIGATION. Question. — What are the modes of emanating proceedings in the Court of Chancery at the present time ? Answer. — ^They are the following : L By bill. 2. By information. 3. Byxlaim. 4. By special case. 5. By summons before a judge at chambers. Proceedings are also taken by petition to the court, or by summons to a judge at chambers, under the Charitable Trusts Act, 1853 : (see Ayck. New Ch. Pr. 1, 442 ; Hallilay^s Articled Clerk's Handbook, 34.) Q. — What is the rule as to making parties to suits in equity, and has any recent alteration been made in this respect ? If so, state your authority, and give one or two examples. A. — Formerly the general rule of the court with respect to parties was, that all persons interested in the subject-matter of the litigation should be parties to the suit, so that the court might, in one suit, make a final determination as between all the parties. To this rule, how- ever, there were some exceptions. And now, by the 15 & 16 Vict. c. 86, s. 42, it is enacted, that it shall not be competent to any defendant in any suit to take any objection for want of parties to such suit, in any case to which the rules next thereinafter set forth extend ; and such rules shall be deemed and taken as part of the law and practice of the court, and any law and practice of the court inconsistent therewith is thereby abrogated and annulled. The following are some of the cases referred to : — Any residuary legatee, or next-of-kin, may, without serving the (o) Lord Hale, however, accounts for tlie appeal to the House of Lords in equity cases from the notorious misconduct of fyfnjfj^^^&'-l\/l^f-g^ff(^ii Campbell's Life of Bacon. . EQUITY. 291 remaining residuary legatees, or next-of-kin, have a decree for the admin- istration of the personal estate of a deceased person : (Rule 1.) Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, may, without serving any other legatee or person interested iti the proceeds of the estate, have a decree for the administration of the estate of a, deceased person : (Rule 2.) Any residuary devisee or heir may, without serving any co-residuary devisee or co-heir, have the like decree : (Rule 3.) In all the above cases (and up to Rule 6), the court, if it shall see fit, may require any other person or persons to be made a party or parties to the suit, and may, if it shall see fit, give the conduct of the suit to such person as it may deem proper ; and may make such order in any particular case as it may deem just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question : (Rule 7.) In all the above cases (and up to Rule 6), the persons who, according to the former practice of the court, would have been necessary parties to the suit, are to be served with notice of the decree, and after such noticfe they are to be bound by the proceedings in the same manner as if they had been originally made parties to the suit, and they may, by order of course, have liberty to attend the proceedings under the decree ; and they may apply to add to the decree : (Rule 8.) See further Ayck. New Cb. Pr. 2, et seq. ; Hallilay's Ch. Suit, tit. "Parties to Suits." Q. — By whom must a bill be filed ? A. — A bill should be filed either by the plaintiff in person or a duly- qualified solicitor. Q. — How is a suit commenced under ordinary circumstances, when the rights of the Crown are concerned ? A. — In such a case the suit is pommenced by information. It is exhi- bited in the name of the Queen's Attorney or "Solicitor^ljeneral, as Jthe infqrmanjt^; and aj;elator_isgenerally na med, who Jnjreality_sustains and directs the suit. The information must be~signej by the Attorney - General, for which purpose counsel must certify that the information is proper for his sanction. A copy of the information is then left with the Attorney-General's clerk, together wit h a cer tijicate by the solicitor Jhat the relator is competent to pay the costs of the information, and that the copy is a true copy of the draft prepared by counsel, and thereupon the information is signed by the Attorney-General. Before the name of any person shall be used as relator in any information, sucji pers on m ust sign awritten authority to tihe solicitor for Jhat purposCj^nd ^uch authority^ is to be fiied with the information : (Ayck. New Ch. Pr. 209, 212 ; Smith's ChTPr. 78, 94, 5th edit.) Q. — How are proceedings commenced when any other party besides the Crown has an interest in the subject-matter of the intended suit ; and what steps must be taken to obtain the Attorney-General's sanction to such suit ? A. — When any other person besides the Crown is interested in the subject-matter in dispute (such person sustaining the character of plaintifi" and relator), the pleading is called an information and bill : (see references supra.) As to the mode of obtaining the Attorney-General's sanction, see svpra. Digitized by^c^soft® 292 EXAMINATION QUESTIONS AND ANSWERS. Q-' — What are the usual parts of a bill in equity ? A — The parts of a bill are the title of the court ; the title of the cause, i.e., the names of plaintiff and defendant; the complaint, and stating part, containing all the fapts and circumstances relied on ; and the prayer. The bill is signed by counsel, and the name of the plaintiff's solicitor is added at the end. The bill does not contain any interrogatories. It is also indorsed with the court, short title of the cause, and a notice commanding , the defendant to appear in eight days from the service, otherwise ^hrpntoTii'ng , on •^tf<^„hmor,t ; the sollcitor's uamo is also added : (see ^^llilay's Articled Clerk's Handbook, 36; Hallilay's Ch. Suit. tit. ^^ill ;" Smith's Ch. ?r. 91 to 93, 5th edit) „..^,^^, ,^, luj, *^«»«, Q. — What preliminary step is necessary when an infant, or a married woman, ,pr other party under disabilityj is plaintiff in a suit ? A. — Where an infant or married woman is plaintiff, they, in general, must sue by prochein ami: (see ante.) But by the 15 & 16 Vict. c. 86, before the name of any person is used in any suit in the Court of Chan- cery asTnexf friend_of any infant, married woman, or other party, or^as relator in any information, such person must sign a written authority to the solicitor for that purpose, and such authority shall be_filed with the bill,^information, ©r elaisa : (sect. 11 ; and see AycETNew Ch. Pr. 12 ; Smith's Ch. Pr. 79, 5th edit.) Q. — Can parties, defendants, be served with process out of the juris- diction of the court, and how ? A. — If any of the parties, defendants, are out of the jurisdiction, the court, upon application, supported by such evidence as shall satisfy the court in what place or country such defendant is or may probably be found, may order that the biU and interrogatories may be served on such defendant in such place or country, or within such limits, as the court thinks fit to direct: {33rd Order, May 1845 art. 1; 15 & 16 Vict. c. 86.) At the time of serving the copy, bill and interrogatories, if any, the plaintiff is also to cause the defendant to be served with a copy of the order giving the plaintiff leave to serve the bill, &c. : (id. art. 3.) The court, on application, granted an order for leave to serve a copy of the bill, with a copy of the interrogatories annexed, upon defendants in Australia: {Pearse v. Miller, Week. Rep. 192 ; see also Innes v. Mitchell, 29 L. T. Rep. 273, and generally Hallilay's Ch. Suit, 8, 9 ; Ayck. New Ch. Pr. ; Smith's Ch. Pr. 101, 102, 5th edit.) Q. — Is it necessary that all parties having an interest in real estate should be made parties to a bill against trustees, in order to carry the trusts into execution, or will it be sufficient to make the trustees only parties to the bill? Al — In all suits concerning real or personal estate, which is vested in trustees under a will, settlement, or otherwise, such trustees shall repre- sent the persons beneficially interested under the trust, in the same manner, and to the same extent, as the executors or administrators in suits concerning personal estate represent the person beneficially inter- ested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but the court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons, or any of them, to be made parties: (15 & 16 Vict. c. 86, s. 42, rule 9 ; Ayck. New Ch. Pr. 4, 5.) This rule not only applies to administration suits, but to all suits where the interest of the cestui que trusts, is represented by, and his powers vested Vigitized by Microson® KQUITY. 293 in, the trustee : {Ayck. New Ch. Pr. 5 ; Hallilay's Ch. Suit, 4 ; Smith's Cli. Pr. 88, 5th edit.) Q. — ^Is the Attorney-General a necessary party to a suit the subject , of which is a legacy given to a charity already established ? A. — In all suits relative to charitable funds the Attorney-General must be made a party : he need not be made a party, however, when a private charity is the subject of the suit, nor in respect of a legacy given to a charity on_aJ)ill filed against an executor for an account : (Gold- smith's Eq. Pr. 223, ~4th edit.) Q. — 'Is a bankrupt a nece.'-sary party to a bill filed against his assignees ? A. — ^In general a bankrupt is not a necessary party to a suit, as defendant, relative to any property which is affected by his bankruptcy, because the interests of a bankrupt (whether legal or equitable) arc vested in his assignees by virtue of their appointment : (12 & 13 Vict. c. 106, ss. 141, 142, 153 ; see also 3 P. Will. 311, note ; Bro. C. C. 228.) If, however, fraud and collusion between the assignees and the bankrupt be charged, the bankrupt may be made a party, defendant : (see Rede. Plead. 162.) Q. — By whom must bills be signed ? A. — Bills must be signed by counsel-; but they do not require either to be signed or sworn to by the plaintiff: (Ayck. New Ch. Pr. 8, 11 ; Hallilay's Ch. Suit, 6 ; Smith's Eq. Pr. 92, 5th edit.) Q. — What is the consequence of omitting the prayer for general relief in a bill in Chancery 1 A. — ^The omission of the prayer for general relief will be fatal to the bill where the plaintiff has mistaken his special prayer of relief (except in the cases of charities and infants), unless the court allows an amend- ment : (Story's Eq. PL § 40.) Q. — What is the distinction between multifariousness and misjoinder as applied to bills in Chancery ; and is there any, and what, difference in their consequences ? A. — The distinction between multifariousness and misjoinder has been usually understood to be as follows : The former consists in mi xing u p ^gjcgra l matters in o ne bill which ought to be made th e_su biect of diflferentsuitsj whilst misjoind er is when persons a re i mproperly intrg - duced asparties to the recor dj the difference between the two is often very difffcult to distinguish. Either the one or the other forms a ground of demurrer: (see Goldsmith's Eq. Pr. 291,292, 4th edit.) By the 15 & 16 Vict. c. 86, however, no_suit ^is to be dis missed_ for misjoinder only ^jilaintiffi^therein; but if the plaintiffs, or any of them, are entitled to relief, the court may grant such relief notwithstanding such misjoinder, and may direct amendments, &c. : (see further ss. 49, 5 1 ; Ayck. New Ch. Pr. 6 ; Hallilay's CL. Suit, tit. "Parties to Suits.") Q. — ^In what cases, and upon what terms, may a written copy of a bill in Chancery be filed instead of a printed copy? A — In case of a bill praying a writ of injunction, or a writ of ne exeat regno, or filed for the purpose, either S"olely or amongst other things, of making an infant a ward of court, a written copy may be filed, upon the personal undertaking of the plaintiff or his solicitor to file a printed copy within fourteen days. The Bill so filed is to be deemed and taken to Digitized by Microsoft® 294 EXAMINATION QUESTIONS AND AN8WEBS. have been filed at the time of filing the written copy : (IS & 16 Vict, c. 86, s. 6.) No extra costs, however, are allowed, unless directed by the court : (2nd Order, 7th Aug. 1852 ; and see Hallilay's Ch. Suit, ■ 6 ; Ayck. New Ch. Pr. 10 ; Smith's Ch. Pr. 94, 5th edit.) Q. — What is the mode of proceeding to give a defendant notice of a bill in Chancery being filed against him ? A. — To give a defendant notice of a bill being filed against him, he is now served with a copy of the bill properly stamped, sealed and indorse.-!, instead of the writ of subpoena formerly used for that purpose : (15 & 16 Vict. c. 86, ss. 2 to 4 ; Ayck. New Ch. Pr. 13 ; Hallilay's Ch. Suit, 7, 20 ; Smith's Ch. Pr. 96, 5th edit.) Q, — What are the several kinds of bills ? A. — The several kinds of bills have usually been considered under three general heads:' 1st, original bills ; 2ndly, bills not original ; and, 3rdly, bills in the nature of original bills : (see Mit. Plea. 3 1 ; Ayck. New Ch. Pr. 189 ; but see Smith's Ch. Pr. 445, 5th edit.) Q. — State tlie nature and object of a bill of review. A. — A bill of review is in t jie n ature of an original bill. The object of this bill is to procure an examination and reversal of a decree, made upon a former bill, and signed and enrolled. It may be brought upon error of law appearing in the body of the decree itself, or upon discovery Qf_^e5SL_jnatter : (Ayck. New Ch. Pr. 205 ; Smith's Ch. Pr. 475, 5th edit.) Q. — What is a cross bill ? A. — A cross bill is in the nature of an original bill. A bill of this kind is brought by a defendant against a plaintiff or other parties in a former bill depending, touching the matter in question in that bill. It is usually brought to obtain a necessary discovery, or full relief to all par- ties : (Ayck. New Ch. Pr. 207; Smith's Ch. Pr. 445, 5th edit.) Tlie 14 & 15 Vict. c. 99, rendered it seldom necessary for a defendant to have recourse to a cross bill, it enacting that the parties to any suit, and the persons in whose behalf such suit is brought or defended, shall be com- petent and compellable to give evidence for any of the parties to the suit. And by stat. 15 & 16 Vict. c. 86, s. 19, any defendant in any suit, without filing any cross bill of discovery, may file interrogatories for the examination of the plaintiff, which interrogatories the plaintiff is bound to answer: (Hallilay's Ch. Suit, 31, 32 and references «Mpra ; et ante, p. 287. Q. — What is a biU of revivor ? And state the course to be adopted under the 15 & 16 Vict. c. 86, in cases where a suit becomes abated by death or marriage of parties, or defective by reason of any change or transmission of interest. A. — ^A bill of revivor is filed for the purpose of reviving, or calling into operation, the proceedings in a suit when from some circumstances (as, for instance, death of a plaintiff) the suit has abated : (Holth. Law Diet.) Under the stat. 15 & 16 Vict. c. 86, upon a suit abating by death, marriage, &c., it is not necessary to exhibit any bill of revivor or supplemental bill in order to obtain the usual order to revive the suit, or carry on the proceedings ; but an order to the effect of the usual order to revive, &c. may be obtained as of course upon an._ al]£ga.tioa,o£. the abatement of the suit, or of the same having become defective, and- oftje change or transmissi^ of interest .or.liahilityX and service'of such order on the party or parties who under the former practice would be Digitized by Microsoft® EQUITT. 295 defendant or defendants to the bill of revivor or supplemental bill, shall bind them in the same manner as if such order had been obtained according to the former practice of the court: (see sect. 52.) But this section has been much narrowed by recent decisions : (see Dendy v. Bendy, 28 L. T. Rep. 85 ; Hallilay's Ch. Suit, 85.) Q. — Does the marriage of a female plaintiff abate the suit ? A. — Yes ; the marriage of a female plaintiff abates the suit : (Ayck, New Ch. Pr. 293 ; Hallilay's Ch. Suit, 83, 84 ; Smith's Ch. Pr. 45, 5th edit.) Q. —Does the marriage of a female defendant abate the suit ? A. — No ; it is merely necessary to name the husband as well as the wife in the subsequent proceedings : (Ajck. New Ch. Pr. 293 ; Halli- lay's Ch. Suit, 83, 84 ; Smith's Ch. Pr. 466, 5th edit.) As to abate- ment of suits by husband and wife, see ante, p. 269. Q. — ^If one of several plaintiffs or defendants respectively to a suit dies pendente lite, does the suit abate ? A. — If any of the parties to a suit die whose interests are sajnaterial as to makejt necessary, forjt,heir representatives to be brought before the court, the suit abates, but not if their interest terminates with them : A (Ayck. New Ch. Pr. 292; Hallilay's Ch. Suit, 83 ; Smith's Ch. Pr, 465, 5th edit.) Q. — ^Does a suit abate on the death of a party having a joint interest with a co-plaintiff or co-defendant ? A. — In such a case the suit will not abate unjegsjie be a g aceoHati xig party, as his interest survives to the remaining co^^Iainunor co-defen- dant : (see Ayck. New Ch. Pr. 292 ; Eede. PL 46, 3rd edit. ; 3 Ch. Eep. 66 ; Hallilay's Ch. Suit, 83 ; Smith's Ch. Pr. 465, 5th edit.) Q. — If a sole plaintiff becomes a bankrupt, what proceeding should a defendant take to free himself from the suit ? A. — In such case the defendant should apply on notice, that the assignees may make themselves par ties within a given time , or, in default, that the bill may be dismisseTl (see Ayck. New Ch. Pr. 255 ; Hallilay's Ch. Suit, 81 ; Smith's Ch. Pr. 467, 5th edit.) Q. — ^Will a suit by a corporate body abate by the death of some of the members of the corporation who are in that character parties by name ; and will there be a defect of parties if others, who become members after the commencement of the suit, be not joined ? A. — If a suit is instituted by the members of a corporation in their individual characters, it will abate on the death of some of them; and so if other persons become members afterwards, they must be made parties. But jf_ajaU.is instituted by a corporate body, and other partias after- wards become members of the same, the suit will not be defective if they are noj added : (see Smith's Ch. Pr. 658, 3rd edit.) By the 15 & 16 Vict. c. 86, the practice of setting down a case merely on an objection for want of parties to the suit is abolished : (sect. 43 ; and see Hallilay's Ch. Suit, 84.) Q. — If in a suit or other proceeding it appears that a deceased person who was interested in the matters in question, has no legal personal representative, has the court any, and what, power of proceeding without requiring letters of administration to be obtained from a Probate Court ? A. — By the 15 & 16 Vict. c. 86, s. 44, it is enacted that, if, in any Digitized by Microsoft® 296 EXAMINATrON QUESTIONS AND ANSWEKS. suit or other proceedino; before the court, it shall appear to the court that any deceased person, who was interested in the matter in question, has no legal personal representative, it shall be lawful for the court either to proceed in the absence of any person representing the estate of such deceased person or to appoint some person to represent such estate for all the purposes of the suit or proceeding. This enactment, however, does not apply where the estate to which it is desired to appoint a repre- sentative is to be administered by the court, nor to parties against whom a decree is sought personally : (see Aycl^. New Ch. Pr. 5 ; Hallilay's Ch. Suit, 4, 84; Smith's Ch. Pr. 89, 5th edit.) Q. — Mention the principal cases in which a bill must be accompanied by an affidavit ; and how is the omission of such affidavit taken advan- tage of ? A. — The bill must be accompanied by affidavit in the following cases : 1st. In a bill of interpleader : (see ante, p. 288.) 2ndly. In a bill to take testimony rfe bene esse, the application must be supported by affidavit of the facts, such as the age of the witness, and that his evidence is material : (Ayck. New Ch. Pr. 104.) 3rdly. If a bill for discovery of deeds or writings also prays such relief as might have been obtained at law, if the deeds or writings were in the custody of the i)laintifF, he must annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendarit : {ib. 204.) So, applications for injunctions before answer, and for writs of ne exeat regno, must be supported by affidavit verifying . the material allegations in the bill : (ib. 216, 218.) The want of the affidavit must be taken advantage of by demurrer : (see 1 Sim. & St. 227; 12 vSim. 35.) Q. — What are letters missive ; what do they require, and how are they obtained? A. — A letter missive in Chancery is a letter from the Lord Chancellor to the defendant in a suit, such defendant being a peer, informing him that a bill has been filed against him, and requesting him to appear to it : (Holth. Law Diet.) Letters missive are obtained _on „petiiion__gr^ent£d to the Lord Chancellor in the usual.. way ; they are granted without any order being drawn up. The letter missive, as also a copy of the petition and^acopy of the_bill, without any indorsement, must be served upon the defendant or Jeujit his house ; and if he neglects to appear within eight days after such service, he is served with a copy of the bill, with an indorsement, stating that his estates will be sequestered if he shall neglect to appear : (see Ayck. New Ch. Pr. 38 ; Smith's Ch. Pr. 9&, 5th edit.) Q. — When is a bill taken pro confesso ; and what is the meaning of a bill being so taken ? A. — The cases in which the plaintiff may in future find it necessary to take the bill pro confesso against the defendant, are, 1st, when the defen- dant absconds to avoid process for want of answer ; and, 2ndly, when the defendant is taken on process of contempt for want of answer. The meaning of taking a bill pro confesso is that tlie court assumes the statements in the bill to be true, or as confessed {pro confesso), and makes a decree accordingly : (Ayck. NewCh. Pr.59, 60; Hallilay's Ch. Suit, 16.) Q. — State the practice in procuring the order to take the bill pro confesso. A. — If the defendant has absconded to avoid answer, an order to take the bill pro confesso ^f^p^^j^^§^^^i^§^^^^^ then the court may order that such defendant do appear at a certain day to be named in the~brder; and a copy of such order, with a notice at the foot of it (stating that if he does not appear pursuant to the notice, the plaintiff may enter an appearance for him, &c.), may, within fmi rteftn ^aya afler such order is made, be inserted in the London' Gazette, and otherwise pub- lished as the court directs ; and if the defendant makes default, then on pooof of the publication of the order and notice, the court may order an appearance to be entered for the defendant on the plaintiff's application (Ayck. New Ch. Pr. 39, 40.) As before seen (ante, p. 301), the subpoena to appear is abolished, and the defendant is now served with a copy of the bill duly stamped, sealed and indorsed. Q. — What is the mode of proceeding against a corporation failing to enter an appearance ? A. — Where a bill was filed against a corporation, instead of proceeding by attachment, the practice was to issue a writ of distringas. It is to be observed, however, that the Orders of May 1845, apply to corporate bodies : (Order 4, art. 3.) The distringas issues without order, and is made returnable in the same manner as an attachment: (see further Ayck. New Ch. Pr. 57 ; Smith's Ch. Pr. 120, 5th edit.) Q. — If the defendant be a peer having privilege of Parliament, what is the process to compel appearance ? A. — He must be first served with a letter missive, &c. (as to the mode of obtaining and serving it, see ante, p. 296), and on default of appear- ance, instead of being proceeded against by the ordinary process of attachment, he is proceeded against by sequestratio n nisi and absolut e. An order for this purpose is necessary, which may be obtained on motion as of course ; a copy of the order must afterwards be served on the defendant personally. If he neglects to show cause within eight days after service of the order, the plaintiff may moye, as of course, to make the sequestration absolute ; which being done, the sequestration issues. An appearance may also be entered for him : (Ayck. New Ch. Pr. 54; Smith's Ch. Pr. 120, 5th edit.) Q. — State the mode of compelling appearance to a bill against a mem- ber of Parliament. A. — After being served with a copy of the bill properly stamped, sealed and indorsed, the process to compel an appearance is by sequestration nisi and absolute, as in the case of a peer. An appearance may also be entered for the defendant by the plaintiff: (Ayck. New Ch. Pr. 56, 69 ; Smith's Ch. Pr. 120, Sth edit.) Digitized by Microsoft® 304 EXAMINATION QUESTIONS AND ANSWERS. INTEKEOGATORIES FOR THE EXAMINATION OF THE DEFENDANT. Question. — If an answer be required from a defendant, by what pro- ceedings, to be taken within what period, is such answer to be obtained ? Answer. — If an answer be required from a defendant in any suit com- menced by bill, the plaintiff must, within eight days after the time ' limited for the defendant's appearance, file, in the rpfnrH Qffinp. nf thp. ••• c^uri. interrogatorias-ibr th e examinati on of s uch dp.fp.nrla.nt, and deliver to hi m, or his solic ito r, a copy thereof;, and no defendant is called upon or required to answer, unless interrogatories are so filed and a copy thereof delivered within such eight days. After the eight days have expired, leave must be obtained before the interrogatories can be so filed : (see Ayck. New Ch. Pr. 43, 44, 78 ; Hallilay's Ch. Suit, 10 ; Smith's Ch. Pr. 145, 5th edit.) Q. — How soon is the plaintiff entitled to examine the defendant on oath, and how is it to be done ? And how is the defendant to know what he is required to answer ? A. — The plaintiff may file and deliver interrogatories for the exami- nation of the defendant on oath, within eight days after the time limited for the appearance of such defendant. The interrogatories are filed with the clerk s of records an d writs,. The copies are delivered tj) the defendant o r his sol icitor, T f he appears by solicitor. The defendant knows what he is to answer from the copy of the interrogatories delivered to him ; and the note at the foot of t he copy filed also specifies the particula r interrogat orie s which ea ch defendantJs_rgqjiiEe d to answ er.: (see Drewry's~ Ch. Pr. 10, 11 ; Smiths Ch. Pr. 121, 5th edit. ; Hallilay's Ch. Suit, 10.) MODES OF DEFENCE. Question. — State the different modes of defence to a suit in Chancery, and explain the nature of each. Answer. — The defence to a suit in equity may be either by answer, demurrer, plea, or disclaimer : 1st, by answer, controverting the case stated by the plaintiff, the defendant may confess and avoid, or traverse and deny, the several parts of the bill, or, admitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both ; 2ndly, by demurrer, he may demand the judgment of the court, whether he shall be compelled to answer the bill or not ; Srdly, by plea, he may show cause why the suit should be dis- missed, delayed, or barred ; 4thly, by disclaimer, he may terminate the suit by disclaiming all right in the matter sought by the bill ; and all or any of these modes of defence m^y be joined, provided each relates to a separate and distinct part of the bill : (Mit. Plea. 98 ; Ayck. New Ch. Pr. 72 ; Hallilay's Ch,. Suit,, 21j. ^^ Digitized by Microsoft® EQUITY. 305 Q' — Upon what principle is it decided whether a defence shall be by plea or demurrer ? A. — When a ground of defence is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. But when the objec- tion, or ground of defence, is not apparent, so as to admit of a demurrer, the special matter pleaded must be by plea : (see Ayck. New Oh. Pr. 90, 96 ; Hallilay's Ch. Suit. 24, 27 ; Smith's Ch. Pr. 147, 5th edit.) 1. Answer. ^ Q. — Within what period must a defendant required to answer put in his plea, answer, or demurrer ? A. — ^A defendant who is required to,answer must plead, answer, or demur, not demurring alone, within fej»^en days after the delivery to him, or his solicitor, of a copy of the interrogatories which he is required to answer ; but this time may be enlarged by the court from time to time, upon application : (19th Order, 7th Aug. 1852 ; Ayck. New Ch. Pr. 81 ; Smith's Ch. Pr. 143, 5th edit ; Hallilay's Ch. Suit, 22.) Q — Is it competent for a defendant, not required to answer a bill, to put in his plea, answer, or demurrer thereto ; and, if so, within what period must this step be taken by him ? (a) A. — ^Although an answer is not required from a defendant, he may, without leave of the court, put in hig ^ea, answerj^^demturrer, to^jh|,__ bill ; but he must do so^ithin t welve aay s after a'pfmar^ee. Attwthis ^ time leave must be obtamed : (see reference, supra.) ' Q. — Where a defendant is not required to answer interrogatories, what is considered to be the effect of not putting in a voluntary answer ? A. — The 15 & 16 Vict. c. 86, s. 26, enacts that where a defendant shall not have been required to answer, and shall not have answered, the plaintiff's bill, he shall be considered t o have traversed the ca se made by the bill ; the pkjntiff will , therefore, have to prove his whole' case, and issueisto b e joined by filing replication : (28th Order, 7th Aug. 1852 ; l^irewryTChTPr. 36 ; Hallilay's" Ch. Suit, 18.) Q. — If further time be required to answer, what proceeding is neces- sary to obtain it ? A. — Further time to plead, answer, or demur is now obtained from a judge at chambers ; for which purpose a summons must be taken out. The application should be supported by affidagjt showing sufficient cause and due diligence : (see 15 & 16 Vict. c. 85, s. 26 ; Ayck. Ch. Pr. 82 ; Hallilay's Ch. Suit, 22 ; Smith's Ch. Pr. 144, 5th edit.) Q. — If the plaintiff should amend his bill, what time has the defendant to put in his answer to such amended bill ? A. — The defendant has the same time to answer an amended bill as to answer an original bill : (see Ayck. Ch. Pr. 81 ; Smith's Ch. Pr. 143, 5th edit.) Q. — ^What is the last day which the defendant has for putting in an answer to the amendments of a bill, before a replication can be filed, (a) Also asked in this form; If no interrogatories be filed requiring an answer by a defendant to a bill, is he at liberty lyithin my, and what, tjme to put in a voluntary answer? 306 EXAMINATION QUESTIONS AND ANSWERS. ■where the plaintiff has amended on the terras of not requiring a further answer ? ^.— By the 39th Article, 16th Order of May 1845, it was ordered, that where the plaintiff amends his bill without requiring an answer to the amendments, and no answer is put in thereto, and no warrant for further time to answer the same is served within eight days after service of the notice of the amendment of such bill (now, eight days after service of a copy of the amended bill), the plaintiff is, after the expiration of such eight days, li at withinj'ourteen days from such service , either to file his replication, or to set down the cause to be heard on bill and answer, otherwise any defendant may move to dismiss for want of prose- cution. By this order the defendant has eight days after being served with a copy of the amended bill, either to put in his answer, or obtain further time to do so, before the plaintiff can file a replication, when not required to answer the amendments : (see Ayck. Ch. Pr. 117, 4th edit.) Q. — What is the practice as to a defendant answering the interroga- tories of a bill ? A. — As before seen, a bill does not now contain any interroga- tories ; but if the plaintiff requires an answer from the defendant, he delivers to him interrogatories, and unless these interrogatories be delivered, the defendant need not put in any answer to the bill : (see Ayck. Ch. Pr. 43, 5th edit.; Hallilay's Ch. Suit, 6, 10, and as to the time for filing and delivering these interrogatories, and putting in an answer thereto, see ante.) Q. — Must the defendant answer in all cases upon oath ; or in what cases may the oath or signature be dispensed with ? A. — As a general rule, the answer of the defendant must be put in on oath, and signed by him, but the answer may, if the plaintiff is willing to consent, be taken without the oath, or without the oath and signature of the defendant. This consent is to be signed by the solicitor : .(Ayck. New Ch. Pr. 89; Hallilay's Ch. Suit, 22, 23; Smith's Ch. Pr. 172, 5th edit.) Q. — Before whom can answers be sworn ? A. — Answers may be sworn before commissioners to administer oaths in Chancery (see 16 & 17 Vict. c. 78), and before the clerks of records and writs, or l>efore the clerk of enrolments in Chancery, as occasion may require for the better despatch of business : (7th Order of 26th Oct. ] 842 ; and see Ayck. New Ch. Pr. 84 ; Hallilay's Ch. Suit, 23 ; Smith's Ch. Pr. 164, 5th edit.) Q. — An answer serves two distinct purposes; what are they? A. — 1. It furnishes the result of an examination of the defendant, on oath, upon the interrogatories. 2. It informs the plaintiff and the court of the nature of the defence upon which the defendant means to rely. Q. — What is the proper proceeding to compel an answer ? A. — If after the defendant has been served with the copy, bill and interrogatories, he does not answer in due time after an appearance has been entered by or for him, he is in contempt, and the plaintiff may proceed against him by attachment, and he may be committed to prison and brought to the bar of the court. And the plaintiff may have an order to take the bill pro confesso : (see Ayck. New Ch. Pr. 46, et seq. ; Hallilay's Ch. Suit, 12, et seq. ; Smith's Ch. Pr. 123, 5'th edit.) Q.— When will a|i)M]fggg;E/ljSvd/MiJ©A#S«i?feient ? EQUITY. 307 A. — An answer will be deemed Bufflcient if the plaintiff does not file exceptions thereto within six weeks after the filing of such answer. 2. If exceptions being filed, the plaintiff does not set them down for hearing within jburteea days after the filing thereof. 3. If within four- teen days after the filing of a further 'answer the plaintiff does not set down the old exceptions. 4. If upon the hearing of exceptions, the answer is held sufficient ; and in this case it is so from the date of the order made on the hearing : (Orders, Nov. 1850 ; Ayck. New Ch. Pr. 108 ; Hallilay's Ch.' Suit, 33 j Smith's Ch. Pr. 184, 5th edit.) Q. — ^What is the difference between an evasive and insufficient answer, and how are they respectively treated ? A. — ^An evasive' answer is where the defendant merely answers the charges literally, without confessing or traversing the subject of each interrogatory. If the answer is so evasive as to amount to no answer at all, it will be ordered to be taken off the files of the court : (Story's Eq. Plea. § 852.) An insufficient answer is where the defendant does not fully answer the interrogatories in the bill. The plaintiff should except to an insufficient answer : (Ayck. New Ch. Pr. 107 ; Smith's Ch. Pr. 184, 5th edit. ; Hallilay's Ch. Suit, 33.) Q. — Within what time must the plaintiff except to the answer of a defendant ; and if the plaintiff do not pursue that remedy within the proper time, what is the consequence ? A. — The plaintiff must except to the defendant's answer within six weeks after the filing of such answer, or it will be deemed sufficient : (see references, supra.) Q. — If exceptions be taken to an answer for insufficiency, how should a defendant proceed to avoid their being set down for hearing, and within what time should he do so ? A. — If exceptions be taken to a defendant's answer for insufficiency, he must, in order to avoid their being set down for hearing, submit thereto within eight days after the filing of such exceptions : (9th Order, Nov. 1850 ; Hallilay's Ch. Suit, 34; Smith's Ch. Pr. 181, 5th edit.) Q. — When must a plaintiff, who has delivered exceptions to a defen- dant's answer for insufficiency, obtain an order to set down for hearing such exceptions, if the bill be for an injunction ? A. — The plaintiff, having shown exceptions to a defendant's answer for insufficiency as cause ag ainst dissolvi ng ajiinj unction, is to set down such ex-ceptions for hearing at the latest on the day next after showing such exceptions as ^ause. If he does not, the injunction is dissolved : ("iSth Order, Nov. 1850 ;-Ayck. New Ch. Pr. 220.) Q. — When a defendant is required to put in a further answer, in con- sequence of exceptions to his first answer having been allowed or sub- mitted to, what time is he allowed to put in such further answer ? A. — If a defendant, not being in contempt, submits to exceptions to his answer for insufficiency before the plaintiff has set them down for hear- ing, he is allowed three w eeks from the date of the submission within I which he is to put in his further answer to the bill : (10th Order, 1850.) After exceptions to an answer for insufficiency are set down for hearing, if a defendant, not being in contempt, submits to answer, or the court holds the answer to be insufficient, the court may in such cases appoint the time within which such defendant is to put in his further answer ; Digitized Jbjg !\&}ca!osofm 308 EXAMINATION QUESTIONS AND ANSWEKS, (17th Order, 1850; see Ayck. New Ch. Pr. 109, 111; Hallilay's Ch. Suit, 36 ; Smith's Ch. Pr. 143, 5th edit.) Q— State the different ways in which a plaintiff tacitly waives his right to except to an answer for insufficiency. A. — 1. By obtaining an order to amend his bill. 2. By not excepting within the proper time, viz., six weeks after the answer is filed. 3. By filing a replication : (see Smith's Ch. Pr. ] 42, 5th edit. ; Hallilay's Ch. Suit.) Q. — What is the meaning of an answer being impertinent ; and when considered to be so by the plaintiff, what course should he adopt ? A. — An answer is said to be impertinent when stuffed with long reci- tals, or with long digressions on matters of fact, which are altogether unnecessary and totally immaterial to the point in question : (Ayck. New Ch. Pr. 264 ; Hallilay's Ch. Suit, 37.) Formerly, if an answer was impertinent, the plaintiff used to except to it ; but now, by the 1 5 & 16 Vict. c. 86, s. 17, the practice of excepting to answers and other pro- ceedings in the court for impertinence is abolished ; but the plaintiff may have the impertinent matter expunged, and the court may order the costs occasioned by such impertinent matter being introduced into any pleadings to be paid by the party introducing the same, upon application being made for that purpose : (see Ayck. New Ch. Pr. 264, 266 ; Hallilay, ubi sup.; Smith's Ch. Pr. 515, 5th edit.) Q. — "Where it is apprehended a defendant is likely to abscond in order to avoid answering, what mode of proceeding is to be adopted in such case, and by whom ? A. — If there is just reason to believe that any defendant means to abscond before answering the bill, the court may, on the ex parte appli- cation of the plaintiff, at any time after an appearance has been entered for such defendant by the plaintiff, o rder an attachment for want of answer_toj||ug_agaiastiim : (72nd Order, May 1845.) Under the new practice it may be doubtful whether the court will proceed under this order until after the defendant has been served with a copy of the inter- rogatories : (Ayck. Ch. Pr. 50, 4th edit,) Q. — Where an attachment has issued against a defendant for want of answer, and the defendant not having been taken on such attachment, the same has been returned non est inventus, in what manner should the plaintiff proceed to obtain a sequestration ? A. — On the sheriff's return oi non est inventus toian attachment issued against a defendant for not answering the bill, and upon affidavit made that due diligence was used to ascertain where such defendant was at the time of issuing such writ, and in endeavouring- to apprehend such defen- dant under the same, and that the person suing forth such writ verily believed, at the time of suing forth the same, that such defendant was in the county into which such writ was issued, |the plaintiff shall be entitled to a writ of sequestration in the same manner that he is now entitled to such writ, upon the like return madeby the serjeant-at-arms: (9th Order, 26th Aug. 1841 ; Ayck. New Ch. Pr. 53; Hallilay's Ch. Suit, 15.) Q. — If a defendant be in prison under an attachment for not answer- ing, is it incumbent on the plaintiff to take any, and if any, what step; if he does not take such step, what is the consequence ? A. — If a defendant be in prison under, or being already in prison be detained under, an at^^jj^gg^^jri/^jif^CiiitQgg^g, and be not brought to EQUITY. 309 the bar of the coort -within the proper time, he is to be discharged from custody without payment of the costs of his contempt : (74th Order, May 1845, and see 1 Will. 4, c. 36, s. 15, r. 5 ; Ayek. New Ch. Pr. 52 ; Hallilay's Ch. Suit, 13, 14; Smith's Ch. Pr. 110, 5th edit.) Q. — In what case is the signature of counsel to an answer un- necessary ? A. — As before stated, the name of counsel must appear upon the answer. But the name of counsel is not required to an answer and examination to interrogatories, settled by the judge or the master ; (Braithwaite's Record and Writ Pract. 45.) So before commissions to take answers, &c. were abolished, if the answer was taken by commis- sion in the country, counsel's signature to the answer was unnecessary: (Ayck. New Ch. Pr. 83, 4th edit.) Q. — If a defendant be a peer having privilege of Parliament, or a member of the House of Commons, what is the process in each case to compel answer ? A. — By orders nisi and absolute for a sequestration, as in case of default of appearance: (see ante.') As soon as the plaintiff has obtained the order for the sequestration, he may move to have the bill taken •pro confesso against the defendant: (See Ayck. New Ch. Pr. 57, 69; Smith's Ch. Pr. 134, 5th edit.) Q. — How is a corporation compelled to answer ? A. — By writ of distringas. Upon the return of this writ, an alias distringas and then a pluries is issued, and upon the return of the latter, if default is made, a sequestration issues in the usual way ; after which the bill may be taken pro confesso: (Ayck. New Ch. Pr. 57.) A bill may, however, be taken pro confesso against a corporation : (Smith's Ch. Pr. 128, 5th edit.) Q. — Can a defendant, after a traversing note has been filed, put in an answer as of course; or, if desirous to answer, what steps must he take? A. — After a traversing note has been filed, and a copy thereof served, a defendant is not at liberty to plead answer, or demur to a bill, or to put in any further answer thereto, without the special leave of the court : (58th Order, May 1845; Ayck. Ch. Pr. 75, 4th edit.) Q. — In answering a bill, can a defendant introduce into his answer any other matter than that inquired of by the interrogatories ? A. — Yes ; the answer of a defendant to any bill of complaint may contain not only the answer of the defendant to the interrogatories filed, but such statements material to the case as the defendant may think it necessary or advisable to set forth therein: (15 & 16 Vict. c. 86, s. 14 ; Ayck. New Ch. Pr. 83; Hallilay's Ch. Suit, 21; Smith's Ch. Pr. 163, 5th edit.) ^-_ 2. Demurrer. Q. — Explain the nature and effect of a demurrer. A. — A demurrer in equity amounts to an admission of the truth of the plaintifi^s bill, or of that portion of it to which the demurrer refers, but insists upon some defect or objection apparent on the face of it, either from matter contained in it, or from defect in its frame, or in the case made by it, and prays the judgment of the court whether the defendant can be compelled to answer the plaintiff's bill: (see Holth. Law Diet.; Digitized by Microsoft® 310 EXAMINATION QUESTIONS AND ANSWERS. Ayck. New Ch. Pr. 90, et seq.; Sinitli's Ch. Pr. 14, Sth edit. ; Hallilay's Ch. Suit, 24.) Demurrers are either general, that is, to the whole bill, or special, as where particular imperfections are pointed out : (see reference supra.) Q. — Must a demurrer be put in on oath or not ? A. — No ; a demurrer does not require to be either sworn to or signed by the defendant: (Ayck. New Ch. Pr. 92 ; HaUilay's Ch Suit, 25 ; Smith's Ch. Pr. 148, Sth edit.) Q. — What time is given to a defendant after appearance to demur to a bill ? A. — A defendant must demur alone to any bill within twelve days after his appearance thereto, and not afterwards : (16th Order, May 1845.) The days are reckoned exclusive of the day of entering the appearance: (Ayck. New Ch. Pr. 81; HaUilay's Ch. Suit, 25; Smith's Ch. Pr. 148, Sth edit.) Q. — Can a defendant demur to part only of a bill ? A. — Yes ; for by Order 36, Aug. 1841, no demurrer is to be held bad, and overruled upon argument, only because such demurrer shall not cover so much of the bill as it might by law have extended to : (see Ayck. New Ch. Pr. 90, 91 ; Hallilay's Ch. Suit, 24.) Q. — Can a demurrer be set down for hearing by the plaintiff or the defendant, or by both equally ; and within what time ; and is there any difference if the demurrer is to the whole or part of the bill ? A. — Upon the filing of a demurrer by a defendant, either party may set the same down for argument fmmediately : (44th Order, May 1845.) And within twelve days after the filing of a demurrer to the whole bill, the plaintiff, desiring to submit the same to the judgment of the court, is to cause it to be set down for argument. If he does not, such demurrer is to be held sufficient, and the plaintiff to be held to have submitted thereto: (16 irf. art. 17, and see 46, id.) Within three weeks after filing a demurrer to part of a hill, the plaintiff desiring to submit such demurrer to the judgment of the court, is to cause the same to be set down for argument. If he does not, such demurrer is to be held suffi- cient, and the plaintiff is to be held to have submitted thereto: (16 id. art. 18, and see 4'7' id., and see generally Ayck. New Ch. Pr. 93 ; Hallilay's Ch. Suit, 25 ; Smith's Ch. Pr. 150, Sth edit.) Q. — What effect has the overruling of a demurrer on the future defence of the- party filing it ? A.-^-li a demurrer be overruled, the defendant cannot put in another demurrer ; neither can he put, in a plea ; but where a demurrer to an original bill is overruled, the defendant may still demur to an amended bill. Upon a demurrer being overruled, the defendant should imme- diately apply to the court for time to answer : (Ayck. New Ch. Pr. 96 ; Hallilay's Ch. Suit, 26, 27; Smith's Ch. Pr. 152, Sth edit.) Q. — ^What is the difference in effect of the allowance of a partial demurrer, and that of a general demurrer ? A. — Where a partial demurrer is allowed, the court frequently gives the plaintiff leave to amend his bill, on payment of the defendant's costs. If a general demurrer is allowed, it puts an end to the suit : (Ayck. New Ch. Pr. 95; Smith's Ch. Pr. 152, 153, Sth edit.; Hallilay's Ch. "' ' Digitized by Microsoft® EQUITY. 31 1 3. Plea. Q. — ^Explain the nature and effect of a plea. A. — A plea is special matter pleaded by the defendant to a hill, on which an objection is not apparent, so as to admit of a demurrer. A plea in effect admits the truth of the plaintiff's bill, but shows cause why the suit should be dismissed, del ayed , or bar red. Pleas are generally considered as of three sorts : to the jurisdiction of the court ; to the person of the plaintiff or defendant; and in bar of suit: (Ayck. New Ch. Pr. 78, 26; Hallilay's Ch. Suit, 27; Smith's Ch. Pr. 154, 5th edit.) Q. — Must a plea be put in upon oath, or not ? A. — ^Pleas in bar of matters in pais, s uch as an award, & release, or a will, must be put in upon oath of the defendant; but pleas to the juris- diction of the court, or in disability of the person of the plaintiff or defendant, or pleas in bar of any matter of record, need not be put in upon oath: (Ayck. New Ch. Pr. 98; Hallilay's Ch. Suit, 28; Smith's Ch. Pr. 155, 5th edit.) Q. — When must a plea be accompanied by answer ? A. — ^If the bill contains any charge which in equity may operate in favour of the plaintiff's case against the matter pleaded, as fraud or notice of title, the charge must be denied by way of answer, as well as by averment in the plea. In this case the answer will not support the plea unless it be full and clear : (Goldsmith's Eq. Pr. 303, 4th edit.) Q. — If a plea be filed which, though good in point of form and sub- stance, is untrue in fact, what course ought a plaintiff to take thereupon? A. — The plaintiff may take issue upon it, which is done by replying thereto : (Ayck. New Ch. Pr. 100 ; Hallilay's Ch. Suit, 29 ; Smith's Ch. Pr. 157, 5th edit.) Q. — If a defendant files a plea, and before the same be set down for argument the plaintiff replies thereto, is such plaintiff confined to disputing the truth of the plea, or can he afterwards dispute its validity ? A. — Where the plaintiff has filed his replication to a plea he may dispute the truth of the plea, but he cannot dispute its validity : (Gold- smith's Eq. Pr. 304; Smith's Ch. Pr. 158, 5th edit.) Q. — Is the objection for want of parties to a biU taken in the same manner where such objection appeai-s on the face of the bill itself, as when it does not so appear ? If different, then state what are the proper modes of objection applicable to each of these two cases. A. — If the objection for want of parties to a bill appears on the face of the bill, the proper mode of objection applicable is by demurrer; but if the objection does not appear on the face of the bill, a plea is the proper remedy: (see ante.) But by the 15 & 16 Vict. c. 86, it is not now competent for the defendant,to set down tha_jsausefor argument merely ja_att-Xil4s2iiQaI2SElwanLflf_ parties to^^ suit. And where a person who was interested in the subject-matter of the suit or proceedingis dead, leaving no legal personal representative, the court has power to appoint one if necessary, or proceed in the absence of one. So the court is empowered to adjudicate on questions arising between parties, notwith- standing they may be some only of the parties interested in the property respecting which the question may have arisen : (see ss. 43, 44, 51; see also sect. 42 and rules thereon, and Hallilay's Ch. Suit, tit. " Parties to Suits.") Digitized by Microsoft® 312 EXAmNATION QUESTIONS AND ANSWERS. 4. Disclaimer. Q.—Ii a defendant claims no right or interest in the property or thing claimed by the plaintiff, how should the defendant proceed, and within what time should he take the necessary step ? A. — In such case the defendant should put in a disclaimer: (Ayck. Oh. Pr. 102; Hallilay's Ch. Suit, 31, and see ante.) The time for putting in a disclaimer was formerly six weeks after appearance; and the new acts and orders do not seem to have altered this period. But, as a disclaimer can scarcely ever be put in alone, and must be accompanied by an answer, the same time is allowed to disclaim as to answer : (see Hallilay's Ch. Suit, 31, and the authorities there referred to; also Smith's Ch. Pr. 177, 5th edit.) AMENDMENT OF BILL. Question. — If from the answer or otherwise, matters should arise not comprised in the plaintiff's bill, and of service to his suit, what step must he take ? Answer. — He must amend his bill : (Ayck. New Ch. Pr. 15; Hallilay's Ch. Suit, 38.) Q. — State what matters, arising after filing a bill, can be introduced on the record by means of an amended bill. A. — As an original and an amended bill are considered but as one record, formerly nothing could be introduced by way of amendment which did not take place previously to filing the original bill ; anything occurring subsequently must have been brought before the court, either by supple- mental bill or bill of revivor. It is not now necessary, however, to exhibit any supplemental bill merely to state or put in issue facts or circumstances occurring after the institution of any suit ; but they may be introduced into the original biU by way of amendment, if the cause is otherwise in such a state as to allow of an amendment being made in the bill; and if not, the plaintiff is to be at liberty to state the same, and put the same in issue, by filing in the record and writ clerks' ofiice a written or printed statement, to be annexed to the bill; and such proceedings by way of answer, evidence, and otherwise, are to be had and taken upon the statement so filed as if the same were embodied in a supplemental bill : the court may make such orders accelerating the proceedings as may appear just and practicable : (15 & 16 Vict. c. 86, s. 53, 44th Order, 7th Aug. 1852; Ayck. New Ch. Pr. 15, 297, 298; Hallilay's Ch. Suit, 38; Smith's Ch. Pr. 186, 5th edit.) Q. — What are the restrictions imposed on a plaintiff with regard to amending his bill ? A. — The amendments must not be of such a character as to entirely change the nature of the suit. A plaintiff cannot, under an order to amend generally, strike out a co-plaintiff's name. So the court, at the hearing, will not allow the plaintiff to amend his bill so as to raise a different case from ^fM^e^'^ch^^had^^^viously relied, and which EQUITY. 313 was properly put in issue by the pleadings : (see further Ayck. New Ch. Pr. 15, 16; Hallilay's Ch. Suit, 39; Smith's Ch. Pr. 186, 187, 5th edit.) Q. — Under what circumstances can a plaintiff desirous to amend his bill obtain an order as of course for leave to amend ; and if he applies for a special order, what is the effect of the affidavit he must malse ? A. — An order for leave to amend a bill may be obtained at any time before answe r, upon motion or petition as of course : (64th Order, May 1846.) And this order may be obtained as often as is pleased. And in cases where there is a sole defendant, or where there being several defen- dants, they all join in the same answer, the plaintiff may, after answer and before re plication, or undertaking to reply, obtain one order of course for leave to"arnend his bill, at any time within four weeks after the answer is deemed or found to be sufficient : .(16 id. art. 32.) In cases where there are several defendants who do not join in the same answer, the plaintiff (if not precluded from amending, or limited as to the time of amending, by some former order) may, a fter answer and before replica - tion, or undertaking to reply , at any time within four weeks a fter the last answer is deemed or found to be sufficient, obtain one_ord ,er of course for leave to amend his bill: (16 id. art. 33.) A special order (which is obtained on summons at chambers). for leave to amend a bill is not to be granted without affidavit to the effect — 1st, that the draft of the pro- posed amendments has been settled, approved and signed by counsel ; ' and, 2ndly, that such amendment is not intended for the purpose of delay or vexation, but because the same is considei'ed to be material to z the plaintiff's case : (67 Order,' May 1845.) After the plaintifi has filed or. undertaken to file a replication, or after the expiration of tour weeks i from the time the answer or'last of answers is deemed sufficient, a special order for leave to amend Uie bill is not to be gra.nted without further ^ affidavit showing that the taatter of the proposed, amendmen t is material, and could jot_ with rea gaaablfi -diligence h ave been sooner intrncln ced^irifn^/ sufih_biU : (68 id., and see generally Hallilay's Ch. Suit, 41 ; Ayck. New Ch. Pr. 16, &c.) Q. — If a defendant file an answer to the plaintiff's bill without being required to do so, what time has the plaintiff to amend his bill as of course ? A. — If the defendant file an answer to the plaintiff's bill without being required to do so, the plaintiff can only obtain an order of course to amend his bill within four weeks from the time of filing the answer : (Rogers v. Fryer, 2 Week. Rep. 67.) Q. — To whom must a plaintiff apply for an order to amend ? A. — If the order may be obtained as of course, as above seen, it is obtained on motio n or petition , granted as of cours e_i (see Hallilay's Ch. Suit, 39, 407) UTEbwever, the ord er cannflt be obtained as of course, then by Judges' Eegs. of 10th Nov. 1852, the a pplication is to be made at chambers up flii..s ummon3 : (see 15 & 16 Vict. c. 80 ; Judges' Eeg. 10th Nov. 1852 ; Hallilay's Ch. Suit, 39 to 41 ; Smith's Ch. Pr. 190, 6th edit. et supra.) Q. — What will be the consequence to the plaintiff if he neglects to amend within the time allowed ? A. — Where the plaintiff obtains an order for leave to amend his bill, and does not amend the same within the time limited for that purpose, the order to amend becomes void, and the cause as to dismissal stands in the same situation as if .such order. had not, been made : (70th Order, Digifizeaby ^rosoft® 314 EXAMINATION QUESTIONS AND ANSWEES. May 1845; Ayck. New Ch. Pr. 22.; HalUlay's Ch. Pr. 42 ; Smith's Ch. Pr. 191, 5th edit.) Q. — When a plaintiff has sued out an attachment against a defendant for want of answer, can he amend his bill without waiver of the pending proceedings of the contempt ? . ^.^-The amendment of a bill in general puts an end to all process of contempt, for want of appearance or answer. By the 1 Will. 4, c. 36, rule 10, however, it is enacted, that where the defendant has been brought to the bar of the court for his contempt in not answering, and refuses or neglects to answer (not being an idiot, lunatic, or of unsound mind), the court may, upon motion or petition, of which personal notice must be given to the defendant, authorise the plaintiff to amend his bill, without such amendment operating as a discharge of the contempt, or rendering it necessary to proceed with process of contempt de novo ; but after such amendment the plaintiff may proceed to take the amended bill pro confesso, as if it had not been amended : (Ayck. New Ch. Pr. 24, 25; Hallilay's Ch. Suit, 42, 43.) Q. — What is the effect of a plaintiff amending his original bill before answering a cross bill ? A. — When a cross bill is filed, the plaintiff in the original cause is entitled to have an answer to his bill before he can be compelled to answer the cross bill ; but if the plaintiff in the original cause amends his bill after the filing of the cross bill, he loses his right to priority of answer : (see Ayck. New Ch. Pr. 208, 209 ; Smith's Ch. Pr. 447, 5th edit.) Q. — If a plaintiff changes his residence after the filing of the bill, and then amends, what is his duty with respect to such change, and what is the consequence of neglecting it ? A. — If a plaintiff changes his residence after filing his bill, and then amends, he should describe himself as of his new residence, otherwise the defendant may, if the misdescription is wilful, obtain security for costs: (see Hurst v. Padwich, 17 L. J. (N.S.) Ch, 169; 12 Jur. 21; Ayck. New Ch. Pr. 321; Hallilay's Ch. Suit, 93; see also Oldale v. Whitehead, 32 L. T. Eep. 269.) REPLICATION. Question. — What must be done on the part of a plaintiff in order to bring his cause to issue against the defendant ? Ansiver. — He must file a replication : (Ayck. New Ch. Pr. 116, 121 ; Hallilay's Ch. Suit, 45 ; Smith's Ch. Pr. 214, 5th edit.) Q. — What effect has the filing of a replication on the answer of a defendant ? A. — The effect of replication is to deny generally the truth of the defendant's answer, and to put him to the proof of the allegations in it: (Hallilay's Ch. Suit, ^r^jtiz^f,^MSF'^8^ EQUITY. 339 and is directed to certain commissioners therein named, empowering them to enter upon the defendant's real estates, and sequester the rents thereof, as also his goods, chattels and personal estate, and keep the same until the defendant clears his contempt. 4th. Writ of assistance, which has already been described. Besides these there ai-eTFequently issued in a suit writs of injunction, n e exeat reg no, distringas, Jieri facias, &c., all of wiiich have been previously considered": (see Ayck. Ch. Pr. 4th edit.; Hallilay's Ch. Suit.) Q. — State generally the practice in equity in presenting, serving and bringing to a hearing a petition in a cause. A. — ^The question only refers to a special petition. Such a petition must be entitled in the cause or matter, and be addressed to the judge to whom it is to be presented. It should contain a statement of the facts upon which it is grounded, and conclude with a prayer framed according to the relief sought to be obtained. It must be left with the , secretary of the judge to whom it is addressed, and the judge will thereupon appoiat a day for hearing. At the same time a fair copy of the petition, on brief paper, brief ways, should be left with the secretary for the use of the judge in court. Upon the petition being^answered, a^copy, with the judge's appointment for hearing, must be served on all pai'ties interested. There must, unless the court gives special leave to the contrary, be at least two clear .days between the service of the petition and the day appointed for the hearing. At the time of serving the copy, the original petition, with the judge's fiat thereon, should be shown to the person served. An affidavit of service should be then made and filed, and an office copy thereof obtained, to be ready in court on the hearing. The petition will then be called on to be heard in its proper order: (Ayck. Ch. Pr. 237 to 239, 4th edit. ; Hallilay's Ch. Suit, 90, 91.) The parties^whom it is intended to serve must be added in a note at the foot of the petition : (Order, April, 1859.) Q. — Has the Lord Chancellor power to deliver judgment in any cause after he has retired from office ? A. — Yes; by the 15 & 16 Vict. c. 80, it is provided, that where cases have been fully heard by the Lord Chancellor, and are standing for judgment, the Lord Chancellor may, within six weeks after he shall have delivered up the great seal, give in to the registrar of the court a written judgment therein signed by him ; and a decree or order, as the case may require, shall be drawn up in pursuance of such judgment ; and every such decree or order shall have the same force and effect as if the judgment in pursuance whereof it was drawn up had been given in open court the day before the Lord Chancellor shall have so delivered up the great seal : (sect. 60.) Q. — What proceedings in the Court of Chancery operate as lis pen- dens, and how do you avail yourself of them ? A. — A suit commenced by bill or ©lai-m in the Court of Chancery is a lis pendens. The filing of a special case, and the entering of appearances thereto by the parties named as defendants therein, shall be taken to be a lis pendens: (13 & 14 Vict. c. 35, s. 17.) Also the filing of a sum- igons at chambers originating proceedings in Chancery, shall have the same effiict with respect to lis pendens as the filing of a bill or claim: (15 & 16 Vict. c. 86, s. 46.) You avail yourself of lis pendens by registering them, in like manner as a judgment isjregistered : (1 & 2 Vict. c. 110.) Digitized by 8niSr(^oft® 340 KXAMINATION QUESTIONS AND ANSWEHS. Q. — How is an Irish judgment regarded in the administration of assets in England ? A. — A judgment in a foreign country is a simple contract debt here, and ranks only as such : (Matthews' Guide to Exors. 162, 2nd edit. ; Will. Exors. 858, 4th edit.) And an Irish judgment forms no exception to the rule, but is treated as a simple contract debt in England : (Will. Exors. sup.) Q. — What are the principal innovations in Chancery practice made by the act 15 & 16 Vict. c. 86 ? A. — -This act made great alterations as to par^i.e.s to suits^ the mode of - framing bills, omitting the interrogatory part, and requiring them to be • printed ; abolishing the subpoena to appear, and substituting a printed copy of the bill. In the limitation of the several times to answer, &c. s Abolishing the practice of excepting to answers for impertinence. Altering the mode of taking evidence. Allowing the defendant to obtain a dis- ' covery from the plaintiff by means of interrogatories without the neces- sity of a cross bill. Substituting an order of course to revive for a bill of revivor or supplemental bill. As to the production of documents on } oath by affidavit by either plaintiff or defendant. Besides these, pro- visions are made for hearing a cause on motion for decree. For the f court to make binding declarations of right without granting conse- quential relief. Assimilating the practice on the common and special ' injunction. Abolishing the practice of sending a case for the opinion of "a court of law, and giving the court the power itself to decide questions , of law. Substituting a summons at chambers for a suit in order to enable a creditor or legatee to obtain an order for administration ; &c. &c Digitized by Microsoft® APPENDIX. Mode of proceeding, and directions to be attended to, at the Examination. Each candidate will (on entering the hall) have a number given to him, and will take his seat at the end of the table on which such number is placed. A paper of questions (a) will be delivered to him with his name and number upon it, containing the questions to be answered in writing, classed under the several heads of — 1. Preliminary. 2. Common and Statute Law, and Practice of the Courts. 3. Equity and Practice of the Courts. 4. Conveyancing. 5. Bankruptcy and Practice of the Courts. 6. Criminal Law, and Proceedings before Justices of the Peace. Common Law and Equity are to be the subjects of the first day's examination, and Conveyancing, Bankruptcy and Criminal Law those of the second. Each candidate is required to answer all the preliminary questions (No. 1), and also to answer in three of the other heads of inquiry, viz.. Common Law, Equity and Conveyancing. The answers under the above six mentioned heads are to be written on one side only, on separate papers for each head, prefixing to each answer the number of the question ; and each paper should be written in a plain and legible manner, and signed. The candidates are expected to finish their papers by four o'clock each day, but no answers toill be received from any candidate before one o'clock. After the examination is begun no candidate is to leave the hall (without permission obtained from the examiners) until he shall have delivered in his answers ; and any candidate who leaves the hall without permission will not be allowed to return. No candidate will be allowed to communicate with, or receive assist- ance from, or copy fi'om the paper of, another ; and in case this rule is discovered to be infringed, such person will be considered not to have passed his examination.(b) At the top of the red ink ruled sheets for the answers is printed this (o) There are nominally fifteen questions in each branch, but they frequently contain double that number. Vide questions at the Trinity Term Examination 1859. (6) The foregoing directions are laid down by the examiners, and a printed copy is laid before each candidate on commencing bis examination. Digitized by Microsoft® 342 EXAMINATION QUESTIONS AND ANSWERS. ^ recommendation : " You are requested to consider every question care- fully before answering it, and to answer every part of it, and not to answer merely in the aflSrmative or negative, but to state the reason for your answer." The examiners do not require long wordy answers, but a brief reply to each question, showing an acquaintance with the subject of the question. A wrong answer will not be considered unfavourably if it displays an acquaintance with the subject. But this, of course, will depend upon the number of correct answers besides, for the examiners require a majority of the questions in the three indispensable heads to be answered correctly. Notwithstanding the printed recommendation at the top of the sheets for the answers, to answer every part of the question, still, if the candid date cannot give a direct answer to every part of the question, it will be better to state what he does know on the subject than to leave it entirely unanswered. When the candidate has finished his answers, he will call an attendant in the room, who will tie them together with the printed copy of the questions ; the candidates will then deliver them, and the ticket given on his entrance, to the secretary, at the examiner's table ; whereupon he will receive another ticket, which he is to give to the person at the door when he goes away. The result of the examination is made known to the candidate the day succeeding the second day's examination, by circular. The following are the questions asked at the Trinity Term Exami- nation 1859, with their answers: — I. COMMON AND STATUTE LAW, AND PRACTICE OF THE COURTS. Question. — Mention the different steps to be taken by the plaintiff" in an ordinary action where the defendant appears and pleads. Answer. — See the answer to the question, ante, p. 40. Q. — What is the shortest time within which an execution can be issued against a defendant after the service of the writ of summons ? A In an ordinary action the defendant has eight days after service of the writ inclusive of the day of service to appear, and in case the defendant makes default, judgment may be signed and execution issued on the expiration of eight days from the last day for appearing. If the action is brought on a bill of exchange or promissory note under the statute 18 & 19 Vict. c. 67, the defendant must obtain leave and enter an appearance to the writ within twelve days after having been served with the writ, inclusive of the day of service, and if he makes default, the plaintiff may sign judgment and issue execution on the expiration of such twelve days. ^.^.^^^^ ^^ Microsoft® APPENDIX. 343 Q, — Define replevin. A. — -See the answer to this question, ante, p. 108. Q. — In what case can you proceed with an action against a foreigner resident abroad ? A. — You can proceed against a foreigner resident abroad for a cause of action that arose here, or in respect of a breach of contract made in this country'. Instead of a copy of the writ, the defendant is served with a notice, but the notice is to contain the same information as the writ. After service of the notice, or leave to proceed as if personal service had been effected, the plaintiff will be allowed to proceed in manner and subject to such terms and conditions as to the court or a judge seems just : (see 15 & 16 Vict. c. 76, s. 19; Smith's Action at Law, 68, 69, 'Sth edit.; Pat. & Mac. C. L. Pr. 106.) Q. — Give the form of attestation of a warrant of attorney. A. — The form of attestation to a warrant of attorney runs thus : Signed, sealed and delivered by the above named C. D., in the presence of me, the undersigned W. H. And I hereby declare myself to be attorney for the said C. D., and that I subscribe this attestation as such, his attorney : (see Pat. & Mac. C. L. Pr. 1003.) Q. — What is the difference in the effect of the plaintiff being non- suited and having a verdict against him ? A. — See the answer ante, p. 71. Q. — Under what statutory obligation is a tenant, on whom a writ in ejectment has been served, to give notice thereof to his landlord ? A. — He must forthwith give notice thereof to his landlord, or his bailiff or receiver, under penalty of forfeiting three years' improved rack- rent of the premises, holden by the tenant, to be recovered by action : (see 15 & 16 Vict. c. 76, s. 209 ; Chit. Arch. 966, 9th edit.j Q. — In whose name would you sue for a chose in action ? A. — See the answer ante, pp. 14, 137. Q. — In actions against two defendants, where the whole damages have been levied on one, when has the one any remedy against the other for contribution, and when not ? A. — See the answer ante, p. 91. Q. — What is a lien, and when has a party a right to it ? A. — A lien is a right to retain property until a debt due to the person retaining has been satisfied. It is not incompatible with a right on the part of the person claiming it to sue for the same debt ; but he may do so, retaining his lien as a collateral security. There are two kinds — general and particular. A trainer has (unless there be a usage to the contrary) a lien upon the horses trained for the expense of training them, for he has by his instruction wrought an improvement in the animal. So a solicitor has a Hen upon papers in his hands for his costs due from the client : (see Smith's Merc. Law, tit. " Lien," 5th edit ; 2 Steph. Com. 132.) Q, — What is meant by stoppage in transitu ? Give an instance, and show how it may be defeated. A. — Stoppage in transitu is the right which the law gives the vendor of goods, in certain cases, to reclaim the goods sold while on their way to the purchaser. This right arises when goods, having been sold on credit, Digitized by Microsoft® 344 EXAMINATION QUESTIONS AND ANSWERS. the vendor ascertains, before the goods have reached the purchaser's hands, that he has become bankrupt or insolvent : (see ante, p. 16.) The negotiation of a bill of lading, if the party takes it bona fide, and without notice, will defeat the vendor's right to stop in transitu : (see 2 Steph. Com. 122, 123 ; Smith Merc. Law, 524, 531, 532, 5th edit.) Q. — How far is payment into court to the indebitatus counts an admission of the cause of action ? A. — As regards the common indebitatus counts, a payment into court admits that the money is due under some contract declared upon, but does not necessarily admit any particular contract, and it lies on the plaintiff to show which, if he claims a larger amount. And when indebitatus counts are joined with special counts, payment into court on the former does not admit allegations on the latter : (see Pat. 8s Mac. C. L. Pr. 913.) Q. — Is there any difference in the effect of paying money into court where the declaration sets out a special contract ? A. — Where money is paid in on a special declaration, or on a special count setting forth a contract, the payment admits the contract as declared on. It does not admit the plaintiff's right of action beyond the sum paid into court, and the defendant may plead a defence to other parts of the claim if it be divisible, or dispute any item of the particulars beyond the amount paid ; (see Pat. & Mac. C. L. Pr. 913, 914.) vli/f-Q. — What is the effect of pleading the general issue by statute ? And what does the pleading rule on the subject require ? A. — Such a plea puts in issue not only the defences peculiar to the statute under which it is pleaded^ but all that would have arisen at common law. Accordingly, the plea of not guilty " by statute," pleaded j,under the 1 1 Geo. 2, c. 19, s. 21, in an action for excessive distress, puts in issue not only the matter of justification, but the tenancy and owner- ship of the goods : (see Chit. Arch. 245, 9th edit ; as to what the rule requires, see ante, p. 55.) Q. — Mention some ' of the alterations in the law made by the Mer- cantile Law Amendment Act 1856. <<)*1<» I'ml Q^}- A. — They are the following : On the breach of a contract to deliver specific goods for a price in money, the jury, by leave of the presiding judge, may find what the goods are, and, by leave of the court or a judge, execution may isuue for the goods on payment of the sum found to be due for the same : (sect, 2.) It is no longer necessary that a co nsi dera- tmnJora^ujM.ntee^houliappearjjit^^ as was Jormer ly necessa ry : (sect. 3.) Acceptance of a bill, inland or foreign, must now be in virriting, signed by the acceptor or his agent duly authorised : (sect. 6.) Merchants' accounts are now placed on the same footing with respect to the time for bringing an action thereon as other simple contract debts : (sect. 8.) Absence beyond seas, or imprisonment of a creditor, is no longer a disability : (sect. 10.) And if one of several contractors is abroad, the statute now runs against th-ose residing here ; but a judgment obtained against those here cannot be pleaded in bar to proceedings against those abroad when they return : (sect. 10.) The provisions of the 9 Geo. 4, c. 14, ss. 1, 8, extended to acknowledgments by duly-authorised agents : (sect. 13.) Part payment by one contractor, &c. is not to take a debt out of the statute against another co-contractor' &c. : (sect. 14, 19 & 20 Vict. c. 97.) Digitized by Microsoft® APPENDIX. 345 II. CONVEYANCING. Question. — State the law of disposition by will, under the Wills Act 1857, in these cases : I, the power of disposition of estates real and per- sonal, acquired after the execution of the will ; 2, the effect, as to revo- cation^of any conveyance or act done relating to the estate disposed of /not being in itself an act of revocation,) subsequently to the execution of the will ; 3, the operation of a residuary devise on real estate comprised in a devise which fails by death, or otherwise becomes incapable of taking effect. Answer. — This question may be answered from the chapter devoted to Testamentary Alienation. Q. — State also the law in the following cases: 1, the estate created by a devise of real estate without words of limitation; 2, in case of a devise for an estate tail, where the devisee dies in the testator's lifetime, leaving issue inheritable who survive the testator;. 3, in case of a devise to a child or other issue of the testator for an estate not determinable with his life, where the devisee dies in the testator's lifetime leaving issue who survive the testator.. A. — For the answer see the chapter on Testamentary Alienation. Q. — State generally and briefly the purport of the act 1845, to render unnecessary the assignment of satisfied terms — what terms are declared to cease absolutely; what terms, on their becoming attendant.. In taking a conveyance on sale, subject to a mortgage or charge secured by a term, which is paid off out of the purchase-money, would you, as a general rule, rely- on the release of the party receiving the money, or require an assignment of the term ? Give your reasons. A. — See the answer given'awfe, pp. 219, 220. Q. — What power is by the act of 1855 given to an infant, to make a settlement on marriage, of property real or personal, at what age, male and female respectively ; and what provision is made in case of dying under age in regard to a settlement made under a power of appoint- ment, or by disentailing assurance ? A. — See the answer ante, p. 198. Q.^Explain the provisions of the act 1857, to enable married women to dispose of reversionary interests in personal estate. To what class of instruments conferring the title, in regard to their date, is the act con- fined ? To what rights and powers beyond actual interests does the act extend, and what classes of interests are excluded from its operation ? A. — See the answer ante pp. 195, 267. Q. — In regard to the acts 1856, 1858, authorising, under sanction of the Court of Chancery, leases and sales of settled estates — state the extent of the leases authorised for agricultural, mining and building purposes respectively, the authority for special provisions for building land and reservation of minerals ; and what leases does the act authorise, and by what persons, without any application to the court ? A. — As to the power of the court to grant leases under this act, see ante, pp. 153, 199, 284, 285. By sect. 12 of the 19 & 20 Vict. c. 120, when land is sold for building purposes the court may allow the con- sideration, either wholly or partially, to be a rent issuing out of the Digitized by Dgiorosoft® 346 EXAMINATION QUESTIONS AND ANSWEES. land: (sect, 12.) And on the sale of land the minerals may be exempted, &c. (sect. 13.) By ss. 32 and 33, tenants for life, or years determinable on lives in possession, of settled estates, and also tenants in curtesy and dower, are empowered, without "any application to the court, to lease the estate, except the principal mansion-house and demesnes thereof, for a term of twenty-one years, which is binding on those in remainder. The lease miist be by deed, and take effect in possession, and must contain all usual covenants, &c. : (ss. 32 and 33.) Q. — ^Explain the provisions of the acts 1849, 1850, for remedying defects in leases under powers. What provision is made for giving validity to leases invalid by reason of deviation from the terms of the power, and what provisions for the confirmation of such leases ? ^.— By the act of 1849 (12 8s 13 Vict. c. 26), it is provided, that where a power of leasing is intended to be exercised, whether derived under an act of Parliament or under the instrument creating the power, and a lease has been or shall hereafter be granted, which, by reason of the non-observance or omission of some condition or restriction, or other deviation from the terms of the power, is invalid against those in remain- der or reversion, &c., in case the lease has been made bona fide, and the lessee, his heirs, executors, administrators, or assigns (as the case may require) have entered thereunder, such lease is to be considered in equity as a contract for a grant at the request of the lessee, his heirs, &c. (as the case may require) of a valid lease under such power to the like purport and effect as such invalid lease as aforesaid, except so far as any varia- tion may be necessary in order to comply with the terms of the power; and all persons who would have been bound, had the lease been lawfully granted under the power, shall be bound in equity by such contract. But it is provided that, if the persons so bound ar6 willing to confirm the invalid lease, the lessee, his heirs, &c., shall not be entitled to any varia- tion : (sect. 2.) And where a lease, granted in the intended exercise of a power of leasing is invalid, because the party granting it could not at such time lawfully do so, and afterwards he may lawfully do so, then the lease is to take effect as if granted when theperson had the power to grant it : (sect. 4.) When a valid power of leasing is vested in any person granting a lease, and such lease, from some cause, cannot take effect and continue according to the terms thereof independently of the power, such lease, for the purposes of this act, is to be deemed to be granted in exercise of the power, although the power is not referred to in the lease : (sect. 5.) This act does not extend to any lease by an eccle- siastical corporation or spiritual person, or to any lease of any college, hospital, or spiritual foundation, or to leases before this act being invalid have been surrendered or recovered by action, &c. : (sect. 7.) By the act of 1850, the mere acceptance of rent is not to be deemed a confir- mation of an invalid lease, as was provided by the act 1849 (sect. 1) ; but where, upon or before accepting rent under an invalid lease, any receipt or memorandum in writing confirming the lease is signed by the person accepting the rent, or his lawfully-authorised agent, such accept- ance is a confirmation : (sect. 2.) Where during the continuance of the possession under an invalid lease, if the person entitled to the lands leased, subject to the lease, or to the rent, &c., is able to confirm such lease without variation, the lessee, his heirs, executors, or adminis- trators (as the case may require), or any person who would have been bound by the lease if t£,ejf me J^^d^l^^v|li^^all, upon the request of APPENDIX. 347 the person so able to confirm the same, be bound to accept a con firma ton accordingly, and such confirmation may be by note or memorandum in writing, signed by the person so confirming, or his lawfully authorised agent ; and after confirmation and acceptance of confirmation, such lease is valid, and has the same effect as if originally valid : (sect. 3 of 13 & 14 Vict. c. 17.) ^ Q. — Referring to the act to amend the Law of Real Property 1845, state the purport of its provisions under these heads, or some of them ; — 1, the operation of a deed of grant, feoffment, exchange and partition respectively ; 2, allowing the giving of an immediate estate, or the bene- fit of a condition or covenant, to a person not a party ; 3, the power of disposition by deed of contingent, executory and future interest ; 4, the alteration of the law in regard to contingent remainders. A.—\. The 8 & 9 Vict. c. 106, enacts that, after 1st Oct. 1845, all corporeal tenements shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery : (sect. 2.) A feoffment made after the above date, other than a feoffment made under a custom by an infant, is void at law, unless made by deed ; and that a partition and exchange of any tenements or hereditaments not being copyhold, made after this date, are also void at law, unless evidenced by deed : (sect. 3.) A feoffment has no longer a tortious operation ; and an exchange or a partition of any hereditaments made by deed after 1st Oct. 1845, does not imply a condition in law : (sect. 4.) 2. Under an indenture executed after 1st Oct. 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture : (sect. 5.) 3. After 1st Oct. 1845, a contingent, an executory and a future interest, and a possibility coupled with any interest in any tenements or heredita- ments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent, may be disposed of by deed ; but no deposition by force of this act is to bar an estate tail, and married women are to convey according to the statute 3 & 4 Will. 4, c. 74 : (sect. 6.) It is also provided that a contingent remainder, existing at any" time after the 31st Dec. 1844, shall be, and if created before the passing of this act shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened : (sect . 8 ; see also Browell's Real Pro. Stats. 273, 278.) Q. — In preparing a conveyance of fee-simple lands to a man not having a wife to whom he was married before ] 834, is_it the best practice t o convey to uses to b ar dower, and with or without an -express negation of right of dower, or to insert a delaration of the fact that the purchaser is either a widower or a bachelor, or has married since 1833, or to abstain altogether from notice of dower ? Give your reasons. A. — See the answer ante p. 1 47. Q. — State in general, but accurate, terms what is a succession within the Succession Duty Act 1853, and the description of property charged; say if leaseholds -are treated as real or personal property. Give an instance or instances of succession ^iiereon the duty attaches. Say Digitized ByWifcrosoft® 348 EXAMINATION QUESTIONS AND ANSWERS. liow far the duty attaches on interests aliened before the succession takes effect. By what rule is the value of the succession measured ? How does the charge affect alienees by titles arising after the duty attaches, and that in the cases of property, real and personal respectively, and what power is there of making separate assessments so as to discharge portions of property from the liability? If you do not answer the whole, answer some parts of the question. A. — By sect. 2, past and future disp oaitinns o f property, whereby any person has, or b;;^"iffl hpnpfi^^ally ""tHlfdl.", any property, or the income thereof, upon the death of any person dying after the commence- ment of this act, either immedi ately or after a ny intp.rval. either certainly or contingently, and either originally or by way of substitutive limita- tion ^ anjj'.yPj ry Hp.vnliit i on by law of any beneficial interest in property, or the income thereof, upon the death of any person dying after the commencement of this act, to any otljer person in possession or expec- tancy, shall be deemed to, confer on the person entitled by reason of such disposition or devolution a " succession." Leaseholds are treated as real property: (sect. 1.) The interest of a succession to real property is con- sidered to be of the value of an annuity — equal to the annual value of such property during his life, or for any less period during which he may be entitled, and every such annuity is to be valued for the purposes of this act according to the tables set forth in the schedule, and the duty is to be paid by eight equal half-yearly payments :(sect. 21 ; see also sect. 10.) If any succession shall, before the successo r_becomes entitled ^ thereto, or to the income thereof i n possession, have become- gested by a lienation, or any title not conferring: a new succession, i n any other person , , then the duty payable in respect thereof shall be paid at the sam e_rate _and time as the , sa me would have been jpayable^ if n o such alie n ation ha j been. made ot derivative title create d^ , • An d where the title to any succession s hall be accelerated by surrender o r extinction , the duty is payable at ""the same time, &C. as ifjTO_si2ch^cce1era t,inn had taken p lace : (sect. 15.) ■The duty imposed by this act is a_iij^t_filiarge _Qii_4feS^Jatg££SL-Sf tjiijjuccessor, and of all persons claiming in his right on .real pr operty whereon the duty is assessed, ^nd also on the interest of the successor in personal propert y, while the same remains in the ownership or control of the successor, or of any trustee for him, or of his guardian, &c., or of the husband of any wife who shall be the successor ; and the duty js a debt d u e to the Crown , having, a s to the real properl y comprised in the succession, priority over all charges and interest created by the successor, but does not charge any other real property of the successor: (sect. 42.) 'Hnta^ bona fide purnhas ev for Yal"^?, ""fl wi^:l^nll^ nntire, is protP.p,tf; d by t he receipt of payment _flLl he duty, notw ithstandin g any mistatement, &c. : (sect. 52.) Upon being requested, t he commiss iongi: ^ are to m ake se parate assessments of the duty payable i n respec t of separate properties , or in defined portions of the same property ; and iu_^uch cases the respective p ortions a re chargeable only with the amount _ Qf duty separ ate ly assess ed TaiTcT the commissioners are empowered by their cer- tificates to declare that any duties already assessed, whether collectively or distributively, in respect of any succession, shall thenceforth be charged, as to any unpaid instalments, according to any further distribu- tion thereof, upon separate parts only of the property in re.spect of which fiuch assessment has been made ; in which case the charge of such duties shall be thenceforth limited according to such further distribution: ^ ' Digitized by Microsoft® APPENDIX. 349 Q. — State the periods of the statutable limitation of time for enforcing' claims on land after the right accrued, in case of right, to rights of common, rights of way and of water, and right to the use of light respectively. A. — ^The 2 & 3 Will. 4, c. 71, enacts, that with respect to rights of common and all other profits or benefits to be taken and enjoyed upon land, with the exception of tithes, rents and services (which remain as at common law), where there shall have been an enjoyment of them by any person claiming right thereto without interruption for thirty years next before the commencement of any suit upon the subject, the prescriptive right is not to be taken away. Persons under disability are allowed a further time to bring their action ; but no action is to be brought after sixty years' possession, which is indefeasible, unless it be shown that such possession took place under some deed or written consent. The act also provides that no action shall be brought to recover the right to any way or other easement, or any watercourse or the use of any water to be enjoyed upon or over any land or water, and the access or use of light to and for any dwelling-house, workshop and other building, after an uninterrupted possession for twenty years, except in cases of disability ; and forty years' possession is to give an absolute title, unless it is shown that such possession took place under some deed or written agreement: (see Browell's Eeal Pro. Stats, p. 1, et seq. ; 2 Steph. Com. 39 to 41.) Q. — What is the effect of the release by an owner of rcntcharge of part of the lands charged ? Would the purchase of any part of the land by the owner of the rentcharge have the same effect ? Is there any sound reason for continuing the existing state of the law ? A. — If any part of the lands out of which a rentcharge issues bo released from the charge by the owner of the rent, either bj' an express deed of release, or virtually by his purchasing part of the land, all the rest of the land shall enjoy the same benefit and be released also. If, however, any part of the land should descend to the owner of the rent as heir-at-law, the rent shall not thereby be extinguished, as in the case of a purchase, but will be apportioned according to the value of the land, because such rent comes to him not by his own act, but by act of law : (see Will. Keal. Pro. 276, 4th edit.) There seems to be no reason for continuing the present state of the law ; and Lord St. Leonards has introduced a bill into Parliament which, amongst other things, proposes to alter it.(a) Q. — State generally, and concisely, the provisions of the Bills of Sale Registration Act 1854; what is required to establish a bill of sale against bankruptcy, insolvency, assignment for general creditors, and exe(^ution at law or in equity ? How far does a registered bill of sale affect the right in bankruptcy under the doctrine of reputed ownership ? A. — The 17 & 18 Vict. c. 36, enacts, that every bill of sale of personal chattels made after this act, either absolutely or conditionally, and whether or not subject to trusts empowering the grantee or holder either with or without notice, and immediately after the making of the bill of sale or at some future time, to seize the property comprised therein, and in every schedule annexed or referred to therein, or a true (ffl) S'nce lliis answer was written the law has been in fact pai'ily altered by the 22 & 23 Vict. c. 35, 6. 10. Digitized by Microsoft® 350 EXAMINATION QUESTIONS AND ANSWERS. copy thereof, with an affidavit of the time when the bill of sale was given, and a description of the residence and occupation of the person giving the same, and of every attesting witness to the bill of sale, shall be filed with the official acting as clerk of dockets and judgments in the Court of Queen's Bench, within twenty-one days after the making thereof ; otherwise the bill of sale, in case the person giving it become bankrupt or insolvent, or makes an assignment for benefit of creditors or in case there be an execution against his goods, will be null and voi against the assignees or execution creditor. If the bill of sale be subject to any defeasance, &c., it must be written on the same paper or parch- ment as the bill of sale, otherwise the bill of sale is void to same extent and against same persons as if not filed. Notwithstanding the registration of a bill of sale, yet if the goods comprised in the bill of sale are in the order and disposition of the person giving it at the time of his bank- ruptcy, the assignees will be entitled to them on order made by the Court of Bankruptcy: (see Prideaux's Conv. 326, 2nd edit. ; Re Daniel, 26 L. T. Rep. 188 ; Re Levy, 31 L. T. Rep. 270.) Q. — State, in a general way, the origin, whether by common law or decision, of the rule for prevention of remoteness, under the name of the rule against perpetuities, and give, in definite terms, that rule, stating within what period, reckoning from what time executory interests, other than those in remainder after an estate tail, must vest in right, if at all. A. — The rule against remoteness is, that an estate cannot be given to an unborn person for life followed by an estate to a child of such unborn child. This rule, established by numerous decisions, is apparently derived from the old doctrine which prevented double possibilities. The rule against remoteness, called the rule against perpetuities, prohibits real property from being tied up or fixed as to its future destination for a longer period than the lives of existing persons, and twenty-one years after the decease, allowing a further time for gestation if it actually exists. An executory interest or devise must also vest within the same period. The period allowed for vesting is computed in this case from the death of the testator, not the date of his will : (see 1 Steph. Com. 509, 565, n.; Will. Real. Pro. 46, 228, 262, 4th edit.) Q. — Describe the restraint on accumulation of the income of real or personal property imposed by the Thellusson Act, 39 & 40, Geo. 3, c. 98. Give the extent of period for which such income may be accumulated, and say for what purposes provisions of accumulation are allowed beyond the limit imposed by the act. A. — See the answer ante, p. 210. III. EQUITY AND PRACTICE OF THE COURTS. Question. — Will a court of equity enforce specific performance of a voluntary agreement, whether by parol or under seal, for a settlement of real or personal estate; or will it carry into execution a settlement of real or personal estate actually vested in trustees, who have accepted the trusts ? Answer. — A court of equity will not enforce the specific performance of a mere voluntary contract, even if it be under seal : (see Story's Eq. Jur. § 393, b ; 27 L. T. 1.24 : Smith's Man. Eq. tit. 2, ch. 8.) But Digifizea by Microsoft® ^ APPENDIX. 35 1 where a voluntary conveyance is complete, so that no act remains to be done to give full effect to the title, equity will uphold it against the party making it and his representatives: (see Smith's Man. Eq. 192, 4th edit.) Where a trustee has been appointed and has accepted the trust, and then refuses to act, equity will compel him to perform the duties incident to that character; for, having once acted, he cannot discharge himself of the obligation : (Goldsmith's Eq. 197, 4th edit. ; Smith's Man. Eq. 162, 4th edit.) Q. — An intestate married since 1834 dies possessed of real as well as personal estate, leaving a widow, a son, and several other children ; what are their respective rights and interests in the intestate's property? A. — See the answer ante, p. 215. Q. — What is necessary to give validity to the will of a married woman ? A. — ^Nothing more is necessary to give validity to the will of a mar- ried woman of such property as she can devise or bequeath than is necessary to the will of any other person. The property she can so will is fully stated ante, p. 203. Q. — What operation has a clause against anticipation upon a gift of the income of real or personal estate to a woman who is unmarried at the time of the gift, afterwards marries, and then becomes a widow f A. — See the answer ante, pp. 194, 266. Q. — ^What is the mode of proceeding when a trustee is desirous of paying money or transferring stock into court under the Trustee Relief Acts? A. — See the answer ante, p. 237. Q. — What are some of the principal matters which are the subject of applications to the judges in chambers? A. — See the answer ante, pp. 299, 300. Q. — ^What covenants would be inserted by a court of equity in a lease of a dwelling-house in pursuance of a contract for a lease subject to " usual covenants" ? A. The covenants inserted in such case would be : covenants by lessee to pay rent and taxes (except land-tax), and to paint and repair (except in cases of fire) ; not to suffer any trade to be carried on ; to insure ; (and perhaps) not to assign without licence, and to surrender at the end of the term. Also covenants by the lessor for quiet enjoyment : (see Arch L. & T. 41, 62, 63, 2nd edit.) Q, By what instruments can a father appoint guardians of his children, and what are the ordinary powers and duties of guardians ? A. — See the answer ante, p. 261. Q, Will the court, under any, and what, circumstances, during the lifetime of a father, order the income of a fund belonging to his infant child, to be applied for his maintenance ? A. — See the answer ante, p. 262. Q. ^Have the town agents of a country solicitor any, and what, lien upon the papers in their hands belonging to the clients of the country solicitor ? A. — The town agent of the attorney in the country has no lien for his general balance upon papers of the client which come into his hands ; Digitized by Microsoft® 352 EXAMINATION QUEOTIONS AND AN3WISBS. but he has a particular lien to the exlent of his charges in the suit or matter in which he has been the agent for the country client. Q. — What are some of the ordinary cases in which the court will appoint a receiver pendente lite? A. — See the answer ante, p. 276. Q.^— What is the general test of the plaintiff's right to an order for production of documents in possession of the defendants ? A. — See the answer, p. 318, 319. Q, — Under any, and what, circumstances will the court permit the bidding at a sale under the court to be opened ? A. — See the answer ante, pp. 282. Q. — Explain the mode of administering an insolvent estate, as between specialty and simple contract creditors, where the assets are partly legal and partly equitable. A. — In administering an estate in equity where the assets are equitable they are administered pari passu amongst all creditors, without regard to priority of debts, on the maxim that equality is equity, and if the funds fall short, all creditors must abate in proportion : ^Story's Eq. Jur. §§ 552, 554 ; and see Smith's Man. Eq. Jur.) But where the assets to be administered are legal, the creditors are paid according to their legal priorities, even in equity : (see ib.) Q. — What are the usual trusts of a settlement of the property of a ward of court on her marriage with a gentleman who brings little or no property into settlement ? A. — If the gentleman marrying the ward have no fortune or property of his own, the court will not allow him to touch any of her property, but will require the whole to be settled upon her ; although it may, and often does, empower the wife, under the settlement, to give one-fifth of the property to her husband by will : (see Goldsmith's Eq. Pr. 155, 4th edit.) The wife always has the first life estate ; but the court has power to give to the husband the property for his life after the decease of the wife, and special provisions in favour of the children according to the nature of the property, and lastly a power of appointment to the wife if she survives and there is no issue. Digitized by Microsoft® APPENDIX A. INTRODUCTION. The publication of the present edition of this Digest was delayed some time, awaiting the issue of the Consolidated Chancery Orders then in course of preparation. But, having been informed in October last, through the courtesy of one of the gentlemen engaged in the prepara- tion of the orders, that it might be some time before they were issued, and that when issued they would make very little alteration in the then existing practice of the Court, it was determined to bring out the work at once, and note any alterations made by the Orders when issued, by way of appendix. This we have now done ; and for the purpose of making the alteration as clear as possible, we have, in most instances, not only rewritten the Answers but the Questions also. It will be seen that the principal alterations are as to the time for answering. The new Orders take effect, and are in force from and after the 14th February, 1860. Page 261, line 20, and page 270, line 4, for " one of the solicitors to the suitors' fund," read " one of the solicitors of the court :" (Consol. Orders, ord. 7, rule 3.) Page 292, lines 8, 9, for " threatening an attachment," read " stating the plaintiff may enter an appearance for the defendant, that he is liable to be arrested and imprisoned and to have a decree made in his absence :" (Consol. Order 9, rule 2.) Page 302. Q. — How is an appearance enforced ? A. — In the answer to this question after the words "the plaintiff may," add " by special leave of the court." The answer will then read, "if the defendant, after being served within the jurisdiction of the court with a copy of the bill, duly indorsed, &c., does not appear thereto within eight days, the plaintiff may, by special leave of the court, issue an attachment against him. Or," '&c. : (see Consol. Order 10, rule 10,) Before this order the attachment issued without order. Page 305. Q. — Within what period must a defendant, required to answer, put in his plea, answer, or demurrer ? A. — A defendant required to answer a bill, whether original or amended, must put ^giUze'^is^ f^iismSQft® demurrer thereto, not 354 EXAMINATION QUESTIONS AND ANSWERS. demurring alone, within twenty-eight days from the delivery to him or his solicitor of a copy of the interrogatories, which he is required to answer : (see 37th of Consol. Orders, rule 4.) Q. — ^Is it competent for a defendant not required to answer a bill to put in his plea, answer, or demurrer thereto ; and, if so, within what period must this step be taken ? A. — A defendant not required to answer a bill, may, without leave of the court put in his plea, answer, or demurrer, not demurring alone, within fourteen days after the expiration of the time within which he might have been served with interrogatories for his examination, in answer to such bill : (37th Consol. Orders, rule 5.) The plaintiff might have served the defendant with interrogatories at any time within eight days after the expiration of the time limited for the defendant to appear, viz., eight days after the service of the copy bill. • Therefore, the defendant may put in a voluntary answer if he has appeared in due time, on the expiration of eight days from his appear- ance, if not served with interrogatories during the eight days. Pages 305, 306. Q. — "What is the last day which the defendant has for putting in an answer to the amendments of a bill before a replication can be filed, where the plaintiff has amended on the terms of not requiring a further answer ? A. — We cannot find any proper answer to this question in the Con- solidated Orders ; it should, therefore, with its answer, be struck out. Page 307. Q. — ^When must a plaintiff, who has delivered exceptions to a defen- dant's answer for insufficiency, obtain an order to set down for hearing such exceptions, if the bill be for an injunction ? A. — ^The 15th Order of November 1850, which furnished the answer to this question not having been incorporated in the Consolidated Orders, this question and answer should be struck out. Page 307. Q. — 'When a defendant is required to put in a further answer, in consequence of exceptions to his first answer having been allowed or submitted to, what time is he allowed to put in his further answer 1 A. — In the third line in the answer to this question, for "three weeks" substitute "fourteen days:" (see 16th Consol. Order, rule 9.) The time is by this order curtailed ; the defendant only being allowed fourteen days to put in a further answer, where he submits before the plaintiff has set down the exceptions. Claims. In any part of this Digest, where claims are mentioned, the learned student must remember that "no claim shall be filed after the 14th day of February, 1860 :" (Consol. Order 8, rule 4.) But "the practice peculiar to claims shall continue in force with respect to claims filed, or to be filed before the 16th day of February, 1860 :" (Preliminary Order, rule 4.) Digitized by Microsoft® INDEX. A. Abatement : plea in .page 52 of action when 60 of suit in equity 294, 295 Abstract : expense of preparing 172 Accident AND Mistake 230 AccouMT 259, 260 Accountant-Generai. : transferring stock 337 receiving cash from 338 ACCUMTTLATION : actio personalis moritur cum persona.. 26 trusts of 210 Action : what 3 different kinds of 3 principle causes of, at common law 3 of assumpstY and debt 4 of covenant 4 for goods sold and delivered 4 of trover and detinue 4 on lost bond 5 where cause amounts to an indict- able offence 5 for libel and slander 5 for a nuisance 5 on a bill or note 5 causes of, which do not survive to executors 6 of tort andcontract 6 when survives 6 actio personalis moritur cum persona ., 26 by infant 32 how commenced 37 joining several causes of. 37 ordinary proceedings in 40 Ademption 244, 255 Administkation : order in which next of kin are entitled to letters of 212 of assets 239, 240 of estate in Chancery 240 Digitized by Microsoft® Administeation — continued. by summons .page 242 proceedings in administration suit.. 242 by claim, priority of. 243, 246 decree for, how affects executors, 247, 249 de bonis non 250 proceedings in chief clerk's office on a reference in administration suit 333 Ad Valokem Duty 189 Advowsons 139, 140 descending to co-parceners 119 descending to joint tenants 119 Affidavit : to hold to bail 42 sworn out of England 43 title of 93, 94 before whom sworn 94 jurat of. 94 of merits 94 how framed 94, 9.5,321 Agent 171 Agkeembnt : does not require sealing 151, 187 tenancy under 155 Aliens 270 Amendment 70 of bill in Chancery 312 what matters may be introduced by way of amendment 312 when order of course to amend may be obtained 313 consequence to plaintiff not amend- ing in time allowed 313 effect of. 314 bill must be amended if plaintiff changes his abode 314 Annhitt 181, 229, 230, 246 Answer : evidence at law 60 to bill in Chancery 305 how obtained from a defendant required to answer, and when must do so 305 2 z INDEX. Answer — continued, defendant not required to answer, when must do so pa^e 305 further time to 305 to amended bill 305 practice as to answering inter- rogatories 306 when must put in on oath 306 before whom sworn 306 serves two purposes 306 how compelled 306 when sufficient 307 evasive 307 exceptions to 307 Appeal 73, 328 does not stay proceedings under a decree or order appealed from 829 Appeakance : time for 46 by infant 47 by married woman 47 To Bill in JEquity — time to appear 301 to amended bill 301 motion may be made before 301 how enforced 302 of defendant abroad 302 of corporation, how enforced 303 of peer, how enforced 303 of Members of Parliament 303 Appointment : power of 132, 133 when takes eifect 200 appointee, from whom takes 200 illusory 200 execution of, does not defeat judg- ments 201 Appoetionment : of rent 153 of annuity 246 Approve : wlieu lord may 144 Akbitbation and Award, 102 to 104, 274 Arrest— Bail 42 to 45 on mesne process 42 when set aside 43 privilege from 43 bail, how discharged 45 assatjlt 25, 26 Assets : what , marshalling 239 how administered for payment of debts 239 legal 239 equitable 239 Attachment ■i'«5'^ '*'' of judgment debts 79 Attorney, 112, 114, 176, 177, 179, 182, 273, 274, 353 Auctioneer : may bind both vendor and pur- chaser 169 Avowry 109 Award (see "Arbitration and Award.") B. Bail: (see "Arrest— Bail.") Bail-bond 44 BANKKnPT : suing for debts of 33 real property of 173 Bankruptcy: effect of 60, 173 Bargain AND Sale 132, 133, 184 Base Fee 128, 129 Benefice cannot be mortgaged 165 Biddings : at auctions cannot be retracted ... 171 Bill of Exceptions 72 Bill of Sale., 98 Assumpsit : Digitized by f^^lPmoft® action of ...r; ■'4 actiononlost Bills of Exchange and Promissory Notes 17 to 20 parties to bill 17 notice of dishonour 18 overdue bill 18, 19 suing- on bills 19, 20 evidence in actions on 62 Bills in Equity : parties to 290, 293, 295 by whom must be filed 291 bill and information 291 may be served on parties out of jurisdiction 292 by whom must be signed 293 consequence of omitting prayer for general relief in 293 several kinds of 293 of review 294 crossbill 294 of revivor 294 when must be accompanied by affidavit 296 when defendant bound by pro- ceedings on service of copy of ... 301 INDEX. Bond — continued. what page 14 assignment of 14 joint action on 33,221, 229 judgment on 59 lost, enforced in equity 229 BoBouGH English 115 C- Capias : writ of 42 Camas ad SATispAciENonM 89 Cakriek : action against 12 when not liable for loss of goods ... 13 Case : action of 4, 5, 24, 27, 28 Cbrtiobaki 60, 109 Chahitt : Attorney-General a necessary party to suit to obtain a legacy given to 293 Chaetek-partt 16 Chattels 135, 136 bill for specific delivery of. 226 Cheques 18 Chose in Action 14, 137 may be assigned, when 137 to what debts applied 137 how considered at law and in equity 225 second incumbrancer of, obtaining priority 256 Claim: when may be filed 298 course of proceeding under 299 mode of defence to 299 Codicil : effect of, on will 206 Cognovit 95, 96 by an infant 96 Commission : del credere 15 for examination of witnesses 97 Common : tenancy in 118, 119 tenancy, how dissolved 120 partition by tenants in 120 of estovers 136 Common and Statute Law ; explanation of 1 leading acts relating to 1 Conditions of Sale 169, 170 Confessing and Avoiding 53 3 Digitized by Consideration... pojre 10, 11, 12, 180, 228 Consolidating Actions 59 Constable : action against 35 Contracts 7 to 16 how enforced 3 lules and maxims for construing ... II written, cannot be varied by parol, 63, 64 but may be explained 64 Conveyance: of lands what passes 137 by mortgagor and mortgagee 165 expenses of preparing 172 parts of 173, 182 parties to 174, 175 what take effect by virtue of the common law, and what by Statute of Uses 176 Coparcenary 119, 120 different kinds of. 119 Copyholds 141 to 143 origin of 141 meaning of "copyhold fine arbi- trary " 142 fine on admission, by whom pay- able 142 tenure of allotment under an iu- closure act 143 may be entailed, wlien, 144 how barred 130, 144 enfranchisement of 145 Corporations : sue and defend by attorney 33 Costs: when plaintiff not entitled to 80 double 81 on judgment non obstante veredicto.., 81 security for 81 in slander 82 in trespass and case 82 incases within County Courts, 83, 85, 87 of making an order a rule of court 82 on payment of money into court, 83, 84 of special j ury 84 in oases of new trial 84 after plea puis darrein continuance 84 on cross issues 85 on withdrawing juror 86 in actions by infants 86 in actions by executors 86 of award 87 in scire facias 87 in libel 87 payment of, how enforced by persons not parties to suits, 332 rule as to allowance of costs be- tween party and party 332 what parties usually attend taxa- tion of 333 Countermand : of trial Microsoft® 69 2 z 2 INDEX. Court Holls: inspection of. page 64 COUBTS, SUPEBIOR 2 County Courts 110 to 112 Covenant TO Stand Seised 134 Covenants : to resign a living 139, 140 in assignment of a lease Ifll to insure 15] sub-lessee not liable to covenants in original lease 152 in a building lease 157 by mortgagees 163 absolute, qualified, usual 177 meaning of 187 performance of. 254 relief for breach of 254 Ckeditors: protected in equity 241 when entitled to interest under a decree 243 Cross Kemaindebs 121 Cubtest: tenant by 148 requisites of 148 Cr Pbes 260 D. Damages : difference between liquidated and unliquidated 3 how ascertained 59 Death : of attesting witness.. from injury of sole plaintiff. Debts : simple contract and specialty ... law as to payment of debts relations and third parties statute barred not included in devise for payment of. of Declaration time to declare when filed and when delivered . several counts in 27 60 7 15 241 48 48 49 49 Decree : for payment of money, how made a charge on land how enforced by persons not parties to suit when order takes efifect plaintiff's solicitor delaying carriage of enforcement of 326, 167 325 325 325 327 De Donis: r statute of .....'. •;"»miHislTat;ion. 4. Of Special Administration, a. Of ;:U^it^d Administration. 6. Revocation of Letters or Adininls- tratlon. Book IV.— Winmhq-pp the Estate. 1. Wtiat passes to the Personal Repre- sentative. 2. Of Chattels Beal. 3. Of Chattels Personal. , , 4. Of Chtfs'esiii Adtion; 5. WUat an Executor may do before /Ppol^ateB. 6. Stampt}uties on Probate and Letters of Adtiiinistration. 7. Of Collecting tlie Effects. 1 8. Funeral Expenses. 9; Of Payment of Debts. 10. 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