Examinations. QUESTIONS AND ANSWERS AT THE SOLICITORS' HEAD I. 1. Q. Define an estate of freehold—give the words by which in old times it was granted. What was the Common Law method of transferring such an estate? and describe that method in detail. A. A freehold estate-liber tenementum or free tenement -is an estate either of inheritance, or for life, in lands of free tenure (Vol. I., p. 229). Originally this estate could only be created or transferred by investiture or delivering corporeal possession of the land in respect of which it arose, a ceremony called " livery of seisin," perfected by homage and fealty. It was granted by words denoting a pure gift-dedi et concessi-(Vol. I., p. 188.) The estate could only be transferred at Common Law by a solemn ceremony called feoffment, with "livery of seisin," which was an investiture or corporeal delivery of the land in which the estate was created, and was perfected by homage and fealty. The steps were two: (1) Feoffment; this was merely the word of donation accompanying the livery, might be verbal or by deed, and was only needed and used to mark out the quantity of the freehold created or transferred. (2) Livery of seisin which was either (a) in deed, or (b) in law. Livery in deed was performed on the land and by the parties or their attorneys. Everybody interested must either consent or absent themselves. feoffor (grantor) gave the feoffee (grantee) a twig, a turf, or the key of a house in the name of the whole. Livery in law was done in sight of the land, but not actually upon it, and could not be done by deputy. The 2. Q. Give the Statute de Donis, and state what circumstances led to its being passed, and what was the immediate effect of that Statute? A. 13 Edward I,, c. 1 (Statute of Westminster the Second), A.D., 1285. The statute had its origin in the desire of the nobility to possess the power of tying up their lands in their own family strictly. This was at first effected by feoffments to "A and the heirs of his body (general or particular); but in time from the inconvenience attending limited estates, the courts construed these grants as "conditional estates in fee simple," which upon the birth of issue gave A full power to alienate and defeat the expectant estate of the issue; then came the statute which enacted that in all future gifts of tenements the will of the donor should be observed secundum formam in cartâ doni expressum, and that in gifts "to A and the heirs of his body," no alienation by A could defeat the issue, and if there was no issue then the tenement reverted to the original grantor. The immediate effect of this statute was the creation of estates tail. 3. Q. A and B are joint tenants in fee simple of property; B is married, he alienes his share and dies, leaving a widow. What is the effect on the joint tenancy by B's alienation-first, as regards A, and, secondly, as regards B's widow. The reason for the answer must be given. It must be assumed that B was married before the Dower Act? A. A loses his jus acerescendi or right of taking the whole property by survivorship, which is an inseparable incident of joint tenancy, as the joint tenancy existing between A and B is turned into a tenancy in common between A and B's grantee by the alienation, though till partition the undivided tenancy continues. (Vol. I., p. 341.) B's widow is entitled to dower out of the property granted by her husband, because dower arises out of all freehold lands of inheritance, of which the husband was seised at any time during the coverture; unless, indeed, the dower was barred by jointure or dower trustees, or the widow had joined in the alienation to release her claims. (Vol. I., p. 267.) 4. Q. If A dies intestate and without issue, leaving only a sister, two sons of a deceased sister, and one son of a deceased younger brother, who would be A's heir-at-law? and state the rule of descent which governs the answer. A. The son of the deceased younger brother is A's heirat-law. The rules of descent governing the case are- - (1) On failure of lineal descendants of the purchaser, the nearest lineal ancestor (i.e., the father) shall take. (2) All the lineal descendants in infinitum of any person deceased shall represent their ancestor. (3) Males shall always be preferred to females. (3 & 4 Wm. IV., c. 106; Vol. I., pp. 410, 403, 399). 5. Q. What was the object of assigning satisfied terms, and what was the Act which affected the law relating to the assignment of such terms? A. The object of assigning satisfied terms was to protect the purchaser of the tenement against prior undisclosed incumbrancers, or grantees of the same property. The assignment was to a trustee in trust for the purchaser, "and to attend and protect the inheritance." The legal effect of such an assignment was, that the beneficial interest in the term followed the limitations of the estate purchased, and did not (although a chattel) vest in the executor or administrator of the purchaser, and if the purchaser afterwards discovered that a grant or incumbrance of the property purchased had not been disclosed upon the sale, and this grant or incumbrance was created subsequently to the term, then the purchaser, being owner of the term, was not affected by the incumbrance so long as the term continued. By 8 & 9 Vict., c. 112 (a) all satisfied terms attendant upon the inheritance, by express declaration or construction of law, on 31st December, 1845, should cease, but if attendant by express declaration, should afford the same protection as before the Act; and (b) all such terms becoming attendant upon the inheritance after 31st December, 1845, should absolutely cease. (Vol. I., pp. 377-380.) 6. Q. What is the Act regulating gifts to a charity? What is the Act called, and what conditions must be observed to make a valid gift to a charity? A. Gifts to charities are regulated by the Mortmain Act (9 Geo. II., c. 36), and the subsequent statutes amending it. Pure personalty may be given to a charity in any manner in which it can be disposed of by the owner for other purposes. As to gifts of all other kinds of property, this statute enacts that they shall be void unless made (1) by deed indented; (2) sealed and delivered before two or more witnesses; (3) twelve months before the donor's death; (4) enrolled in the Court of Chancery (now the Chancery Division) within six months after execution; (5) to take effect in possession; and (6) without power of revocation, or any reservation for the benefit of the donor. Sales for full valuable consideration are exempted from the Act, and so are gifts to the Universities of Oxford and Cambridge, their colleges, Eton, Winchester, Westminster, and the British Museum. The subsequent Acts are all modifying the stringency of the principal Act, either (1) by releasing its formalities, e.g, 9 Geo. IV., c. 85, making past purchases for value, although without a deed indented, attested, and enrolled good; 24 Vict., c. 9, dispensing with the indenting of the deed, allowing reservation of nominal rents for mines, minerals, and easements, and insertion of covenants to repair, &c., with a power of re-entry on breach, abolishing a deed for copyholds, and inciting that a rent to the grantor and his representatives might be reserved as consideration on a sale for full value; 27 Vict., c. 13, 29 & 30 Vict., c. 97, and 35 & 36 Vict., c. 24; or (2) exempting certain gifts from the Acts, e.g., School Sites Acts; Public Park Act, 34 Vict., c. 13; gifts under two acres for religious and educational purposes, &c. (Vol. I., p. 451, et seq.) 7. Q. What effect had the introduction of uses upon a conveyance to A in fee or for life with a proviso that on the happening of a certain event the property was to go over to B in fee? And give the reason for your answer. A. At Common Law the gift over to B in fee was void, because an estate cannot be limited upon a future event to one person in abridgment or defeasance of an estate of freehold, first limited to another. The maxim was-a fee cannot be limited on a fee. The Statute of Uses (27 Henry VIII., c. 10), however enabled the gift over to B in fee to take effect by means of a shifting use, as a use could always be made to shift from one person or class of persons to another. (Vol. I., p. 364.) 8. Q. Give the Act known as the "Statute of Frauds," and mention some of its principal provisions? A. 29 Charles II., c. 3, sections 1, 2 and 3 (Vol. I., pp. 505, 510, 516, 517, 523 and 285; and Vol. II., p. 64); section 4 (Vol. II., pp. 54 and 103; Vol. I., p. 512); sections 7, 8 and 9 (Vol. I., p. 285); section 10 (Vol. I., p. 429); section 16 (Vol. II., p. 50); and section 17 (Vol. II, pp. 68 and 49). 9. Q. What was the "Act to Amend the Law of Real Property," and mention some of its principal provisions? A. 8 & 9 Vict., c. 106: section 1 repealed 7 & 8 Vict., c. 86, abolishing contingent remainders. Section 2 provided that corporeal hereditaments in pos- Section 4. No feoffments to have a tortious operation; Section 5. Persons not parties to deeds may take imme- Section 6. Contingent, executory, and future interests, Section 8. Contingent reversions existing after 31st December, 1844, to take effect, notwithstanding the forfeiture, surrender or merger of particular estates. Section 9. Where the immediate reversion expectant on a lease is surrendered or merged, the estate next in remainder shall be deemed such reversion. 10. Q. A testator, possessed of leaseholds only, dies, and by his will dated in 1836, devises all his "lands and tenements to B. What would be the effect of such a devise, and how, if at all, would the fact that the testator possessed freeholds as well as leaseholds affect the question? A. A devise of "lands and tenements has always passed leaseholds where the testator possessed nothing else, as otherwise there would be nothing for the will to operate upon. But if the testator possessed freeholds as well as leaseholds, the freeholds only were held to pass until the present Wills Act, 7 Wm. IV., and 1 Vict., c. 26, enacted (sec. 26) that a devise of the land of the testator, and any other general devise which would describe a customary copyhold or leasehold estate, if the testator had no freehold estates which could be described by it, shall be construed to include the testator's customary copyhold and leasehold estates as well as his freeholds, unless a contrary intention appears by the will. The effect of the devise on the question, therefore, depends upon the date of the death of the testator, for the new Wills Act came into force on the 1st January, 1838. Prior to that Act also, a will spoke only from its date, and only affected testator's property at its date; but now all wills speak from the death of the testator. HEAD II. 11. Q. Define "things personal," and state by what other name they are known, and what, according to Stephen, they comprise. A. Things personal are included under the word chattels, Chattels, and are generally called goods and chattels. however, may be (1) chattels real, as leaseholds; (2) chattels personal, e.g., a horse, a chair, and, generally, stocks or shares; (3) chattels incorporeal, e.g., copyright, as defined by Stephen in Vol. Il. Things personal include (1) Moveables, i.e., things capable of being carried with a man wherever he goes, and sub-divided into (a) inanimate, e.g., plate, clothing, or furniture. (b) Animate or animals which are either domestic (tame), as sheep, horses, and dogs, or feræ naturæ, e.g., lions, hares; and (2) The incorporeal rights and interests arising out of and incident to things moveable. (Vol. II., p. 2, et seq.) 12. Q Can a man, either by deed or will, limit his books or furniture to A for life, with remainder to B, and has the doctrine against perpetuities any, and, if so, what application to personal chattels ? A. A limitation of personal property (including books and furniture) both by deed and will to one living person for life, with remainder to another, is valid; but it is still a moot point whether such a limitation by deed would be good without the property being vested in trustees. Originally, by the Common Law, such a limitation was bad, as personal property consisted almost entirely of things of a very perishable nature; but, subsequently, a gift of this kind by will was held good, where the use of the goods only, and not the actual goods themselves, was given to the first beneficiary. These distinctions are, however, now obsolete. The rule against perpetuities applies equally to both personal chattels and real property. So also does the Thellusson Act (39 & 40 George III., c. 98), as to accumulation of income. (Vol. II., pp. 11 and 12.) 13. Q. What is a donatio mortis causa, and what is essential to make the gift effectual, and in what respects does it (1) resemble, and (2) differ from a legacy? A. A donatio mortis causâ is a gift of personal property made by a person in his last sickness, evidenced by a manual delivery of the property or the means of obtaining possession of it, and conditioned to take effect if the donor does not recover from his sickness and does not revoke the gift. The delivery of the thing given, e.g., a ring, a sum of money or of the title to it, or the means of obtaining possession of it, e.g., the key of a safe in which the gift is locked up, or a bond is essential to render the donatio effectual. A donatio mortis causâ differs from a legacy, because (1) it takes effect sub modo from the delivery in the donor's lifetime, and cannot be proved as a testamentary act; and (2) the donee has a perfect title without the assent of the donor's executor or administrator. It resembles a legacy and differs from an ordinary gift, inter vivos, because (1) it is revocable during the donor's lifetime; (2) it may be made to the donor's wife; (3) it is liable for the donor's debts on a deficiency of assets; and (4) it is liable to probate and legacy duty. (Vol. II., p, 46.) 14. Q. State those cases in which sec. 4 of the Statute of Frauds requires that a contract should be in writing, and signed by the party to be charged therewith, or by some other person thereunto by him lawfully authorised? A. 1. Where an executor or administrator promises to answer damages out of his own estate, i.c., personally to pay his testator's or intestate's liabilities. 2. Where a man undertakes to answer for the debt, default or miscarriage of another, i.e., a guarantee. 3. Where any agreement is made upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements or hereditaments, or any interest in or concerning them; and 5. Where there is any agreement made that is not to be performed within a year from the making thereof. (Vol. II., pp. 54 and 55.) 15. Q. Mention some of those considerations which are insufficient to support a contract, and explain from whom the consideration must move? A. 1. A good consideration, i.e., natural love and affection. 2. A past consideration of merely moral nature binding on the conscience or feelings of the promiser, but not of a kind on which the law would raise an implied contract, e.g., a bare promise not under seal ruled by the maxim, ex nudo pacto non oritur actio. 3. Illegal considerations, e.g., if A promise B that in consideration of B smuggling tobacco, A will pay him £100. 4. Immoral considerations, e.g., the future cohabitation of unmarried persons. 5. Fraudulent considerations, e.g., if A, in consideration of B perpetrating a fraud on C, promise to pay B money. The consideration, for a promise must move from the promisee, i.e., such consideration must be an act to be done or omitted by the promisee or by his procurement, and not by a stranger or his procurement, e.g., if A and B agree for sufficient consideration, inter se, that B shall pay money to C, and B promises to make such payment, yet C can maintain no action on such promises, because he is a stranger to the consideration. (Vol. II., p. 59, et seq). 16. Q. What is stoppage in transitu, and when can this privilege be exercised? A. Stoppage in transitu is the right of an unpaid vendor of goods sold on credit to stop the goods whilst on their way to the purchaser, on hearing of the purchaser's bankruptcy or insolvency, and so determine, or at least suspend the performance of the contract. This privilege can only be exercised whilst the goods are actually in transitu to the purchaser, and is lost (1) Where by the contract the right of stoppage is given up. (2) By the purchaser giving a new transitus to the goods. (3) By actual or constructive delivery to the purchaser. (4) By the purchaser assigning the bill of lading of (Lickbarrow v. Mason), or transferring the document of title (40 & 41 Vict., c. 39, sec. 5) to the goods to a third person for value, and without notice of the bankruptcy or insolvency. 17. Q. To what liability is an innkeeper subject in respect of the goods and chattels brought to his inn by a traveller? A. At Common Law an innkeeper is liable for the loss of or injury to goods and chattels brought to his inn by a traveller unless the loss or injury arises from the act of God, or the Queen's enemies, or the default of the traveller or his servant. (Calye's Case, 1 Smith's Leading Cases.) But by the Innkeepers' Act, 1863 (26 & 27 Vict., c. 41), the innkeeper's liability (except for a horse or other live animal, or any gear appertaining thereto, or any carriage, the liability as to which remains as at Common Law) is restricted to £30, unless the goods and chattels were (1) lost or injured through the wilful act, neglect, or default of the innkeeper or his servants; or (2) expressly deposited with the innkeeper for safe custody. To claim the benefit of this Act, the innkeeper must exhibit a printed copy of sect. 1 in a conspicuous place in the entrance to the inn. (Vol. II., pp. 83 and 84.) 18. Q. A draws a bill of exchange in favour of B, or order, who indorses it in blank to C. The bill is afterwards stolen by D, and by him indorsed over or merely delivered to E, for a valuable consideration, before it becomes due. Has E a good title to the bill, and if so, against whom? Give the reason for your answer. A. If E has taken the bill bond fide, and not been a party to the theft, he has a good title to the bill, and the money secured by it, even as against C, from whom it was stolen. (Beckwith v. Corral, 3 Bing. 444; Goodman v. Harvey, 4 Ad. and El. 870.) The reason is, that all instruments of a negotiable kind transferable by mere delivery are for the convenience of commerce placed upon the same basis with the current coin of the realm, and pass freely from man to man without regard to any defect in the title of the transferor, provided he transfers to an innocent party for valuable consideration. (Vol. II., pp. 124 and 125.) 19. Q. Distinguish between a general and specific legacy, and explain when a legacy must abate, and how it may be addeemed. 66 A. A specific legacy is a gift of a specified part of a testator's estate, e.g., "the diamond ring presented to me by A," whilst a general legacy is a gift not so marked out, c.g., 'a diamond ring." A general legacy cannot be lost by ademption, whilst a specific legacy can only pass to the legatee where the specific chattel is in testator's possession at his death. All legacies are liable to abate for payment of debts, the policy of the English law being that a man must be just before he is generous. General legacies abate first, then demonstrative legacies, and, lastly, specific legacies. A legacy can only be adeemed where it is specific, in which case, if the thing given is not in testator's possession at his death, it cannot pass to his legatee on his death. (Vol. II., p. 204, et seq.) 20. Q. Is a father under any, and, if so, what legal obligation, either by statute or at Common Law, to maintain his child? State the grounds of your answer. A. The Common Law of the realm laid no obligation upon a father to support his children, no doubt because it was thought no parent would neglect or refuse to perform so natural and moral a duty. Very slight evidence has, however, always been required to charge the father for necessaries supplied to his infant child. It was, however, found that parents neglected their duty in some instances. Statutes were accordingly passed, by which a father is liable for the support of his children in the following instances: (1) The father, &c., of any poor person not able to work shall maintain such person if of sufficient ability as a court of quarter sessions or two justices in petty sessions shall direct. (2) Where the father runs away, leaving his children chargeable to the parish. (3) Where the father wilfully refuses or neglects to maintain his family, whereby they become chargeable. (4) Wherever any children under sixteen, and not being blind or deaf and dumb, are relieved under the poor laws. (5) A husband is also bound to maintain his wife's children born before marriage (whether legitimate or not) until sixteen or the death of their mother; and (6) Where the child is detained in a certified reformatory or industrial school to the extent of five shillings a week. No parent is, however, bound to maintain his children except where they are impotent and unable to work, through infancy, disease, or accident, and then only with necessaries, because it is contrary to public policy to compel a parent to maintain his children in idleness and ease, or at all where the children can provide fitly for themselves. (Vol. II., pp. 290-292.) HEAD III. 21. Q. What is the mode of trial to establish the existence of a particular custom of the City of London? A. The existence of a custom of the City of London is established not in the usual way, by the verdict of a jury of twelve, but by a certificate from the Lord Mayor and Aldermen, through their Recorder, unless the Corporation of the City is itself interested in the question at stake, e.g., the taking of a toll within the City, for in that case the law does not permit them to certify on their own behalf. (Vol. I., p. 64.) 22. Q. Name the three Counties Palatine, and state why they were so called, A. Chester, Durham, and Lancaster. Counties Palatine were so called a palatio because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, by grant from the Crown, had within those counties jura regalia as fully as the king hath in his palace regalem potestatem in omnibus. They might pardon treasons, murders, and felonies; appoint judges and justices of the peace; issue writs and indictments in their own names; and all offences within their jurisdiction were said to be done against their peace, and not as elsewhere, contra pacem domini regis. All Counties Palatine are now vested in the Crown, and not left in the hands of a subject. (Vol. I., p. 128.) 23. Q. A, the owner of a music-hall, having engaged the services of B, a public singer, brought an action against C, a newspaper proprietor, for having published in his paper a libel concerning B. The plaintiff alleged that B was thereby deterred from performing in his music-hall through the apprehension of being ill-received, and that he (A) consequently lost the profits he would otherwise have gained. Was the action maintainable. Give a reason for your answer? A. No, because the damage alleged was too remote, i.c., was not the reasonable and probable consequence of defendant's act. (Ashley v. Harrison, 1 Esp. 48; Vol. III., p. 377.) 24. Q. When animals which have been distrained upon for rent are impounded, what is the law with reference to their support? A. The distrainor is bound by 12 & 13 Vict., c. 92, secs. 5 and 6, to supply them with sufficient food and water under a penalty of 20s. for every refusal or neglect, to be adjudged by a justice of the peace in a summary way. He may however recover from the owner double the value of the food supplied as well as the other expenses. (17 & 18 Vict., c. 60; Vol. III., pp. 257 and 258.) 25. Q. How can a defendant obtain the removal of an action of replevin into the High Court? A. The defendant in an action of replevin may remove the action from the County Court into the High Court of Justice by writ of certiorari. To obtain the writ, defendant must apply to the High Court or a Judge thereof, and must give security (not exceeding £150) to defend the action with effect, and-unless the plaintiff shall discontinue or cease to prosecute or be nonsuited-to prove before the High Court that he the defendant had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll market fair a franchise was in question, or that the rent or damage in respect of which the distress was made exceeded £20. (Vol. III., pp. 439 and 440.) 26. Q. State the several species of injuries, with their remedies, which are incident to the relation of master and servant. A. The injuries incident to the relation of master and servant are such as tend to interrupt that relation, viz. :(1) Retaining another's hired servant before his service is expired, the remedy for which is an action of damages against the servant for non-performance of his agreement, and the new master for interfering with that performance. (2) Beating, confining, or disabling another's servant so that he is unable to perform his work, in which case the servant may sue the wrongdoer for the injury to himself, and the master may also sue for compensation, proving the special damage he has sustained. (Vol. III., and 456.) pp. 455 27. Q. In what cases does the Chancery Division of the High Court of Justice lend its aid to perpetuate testimony? A. The Court of Chancery allowed suits to perpetuate testimony where it was apprehended that existing rights would be called in question at some future day when the witnesses might be dead, and the sole object of the suit was to put evidence on the record for use in case a contest arose in future. These actions may still be brought in the Chancery Division, and are now governed by 5 & 6 Wm. IV., c. 69, which 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 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 to take proceedings in equity to perpetuate any testimony which might be material for establishing such claim or right. (Vol. III., pp. 479 and 480.) may not a witness de 28. Q. What questions may or cline to answer? A. A witness is not bound to answer any question that tends to expose him to punishment as a criminal, or to penal liability, or to forfeiture of any kind; but by 46 Geo. III., c. 37, no witness can decline to answer a relevant question on the ground that the answer will tend to establish that he owes a debt, or to expose him to a civil action.. A witness will not be allowed to answer any question tending to show the channels through which information has reached officers of justice in a criminal prosecution. A counsel or solicitor may not divulge the secrets of the cause with which he may have been confidentially entrusted. Officials may not disclose any matter of state the publication of which may injure the community. Husband and wife cannot be compelled to disclose any communications learnt from each other during marriage. (Vol. III., pp. 554-557.) 29. Q. How does a writ of Habeas Corpus issue, and does it run in the Colonies? A. A writ of Habeas Corpus issues on an Order or Rule of Court granted on application by motion supported by an affidavit of the facts, and is only granted where the Court is satisfied that some reasonable ground exists for issuing it. The writ formerly ran into all dominions of the Crown; but, by 25 & 26 Vict., c. 20, no writ of habeas corpus shall issue out of England by authority of any judge or court therein into any colony or foreign dominion of the Crown, wherein there is a court with power to issue such a writ and enforce its execution. (Vol. III., pp. 628 & 629.) 30. Q. Mention the most important enactments of the reign of Henry VIII. A. The following are some of the most important statutes of the reign of Henry VIII. Students will find out others by going through the lists given on pages 527 & 528 of Vol. IV. : QUESTIONS AND ANSWERS AT THE FINAL EXAMINATION. (The Answers to the Chancery and Conveyancing Papers are by T. EUSTACE SMITH, Barrister-at-Law, the Answers to the remaining Papers are by J. CARTER HARRISON, Solicitor.) I. THE PRINCIPLES OF LAW AND PROCEDURE. (In matters usually determined or administered in the Chancery Division of the High Court of Justice.) 1. Q. State the formalities to be observed on entering an appearance to a writ of summons, and give the authority for your answer. A. A memorandum in writing dated on the day of its delivery, and containing the name of the defendant's solicitor, or stating that he appears in person, must be delivered to the proper officer. At the same time a duplicate of this memorandum must be delivered to the same officer, who seals it with the official seal, showing the date on which it was sealed, and returns it to the person entering the appearance. The memorandum of appearance, if the appearance is entered by a solicitor, must contain his place of business, and if entered in London, an address for service within three miles of Temple Bar, and if entered in a District Registry, an address for service within the district. The defendant must also, on the day on which he enters his appearance, give notice of his appearance to the plaintiff's solicitor or the plaintiff, if he sues in person. The notice may be served by leaving it at the address for service, or sent through the post to the same place by prepaid letter. (Order XII., r. 6; Indermaur's Manual of Practice, 2nd edition, p. 44.) 2. Q. A, B, and C are severally bound as sureties: A'dies, and B pays the debt. Would B have any claim for contribution; if so, against whom? A. Before the Judicature Act B could at law only have sued C for a third of what he had paid, he could, however, in Equity have recovered a third from the representatives of A. Now by sec. 25 of the Judicature Act, 1873, the equitable rules are to prevail, and B could recover a third of the amount paid from A's representatives and C in any division of the Court. Again, too, if A dies insolvent and unable to pay any part of the debt, B can recover half what he has paid from C. (See notes to Deering v Earl of Winchelsea; W. & T. Leading Cases, Equity; and Indermaur's Notes to the Leading Equity Cases.) 3. Q. How would you sue a married woman who is a sole trustee in respect of property the subject of the trust? Give the authority for your answer. A. I should sue her alone and without joining her husband. See sec. 1, sub-sec. 2 of the Married Woman's Property Act, 1882. (45 and 46 Vic. c. 75.) 4. Q. What powers have the county courts in respect of applications and matters arising under The Settled Land Act, 1882 ? A. The county court of the district within which (a) Any part of the land to be dealt with is situated; or (b) The land out of which money to be dealt with arises; or (c) The land in connection with which personal chattels to be dealt with are settled has jurisdiction (1) When the capital value of the settled land, moneys arising under the Act, or settled chattels do not exceed £500, or 2) The annual rateable value of the settled land does not exceed £30. (See The Settled Land Act, 1882, sec. 46, sub-sec. 10.) 5. Q. A trustee receives trust money to invest, and until a proper investment can be procured pays the money into his private account at his bankers; the bankers fail. Would the trustee be liable for the loss? Give the reasons for your answer. A. Yes. He ought to pay it to the credit of the trust, for if, instead of distinguishing it, he pays it to his own account, on his becoming bankrupt it would go to the credit of his estate; and if the bankers had any account with him by way of set-off, that set-off would affect equally his money and the money of the estate paid to his account. (See Massey v. Banner, 1 I. and W., 241; Pennell v. Deffell, 4 De S. M. and S. 386; Notes to Brice v. Stokes, W. and T., Lead. Cas. Equity.) 6 Q. Within what time must an action on a covenant to pay principal and interest in a deed of mortgage of land be brought? A. Within 12 years from the last payment of interest, or from the last acknowledgement in writing, of the mortgagee's right. (See Sec. 8 of The Real Property Limitation Act, 1874; 37 & 38 Vict., c. 57; and Sutton v. Sutton, W. N., December 16th, 1882, p. 172.) 7. Q. Where a tenant for life is impeachable for waste in respect of timber, and there is on the settled land timber ripe and fit for cutting, can such tenant for life legally cut and sell the same; if so, with whose consent, and who would be entitled to the proceeds of sale? Give the authority for your answer. A. Yes; he may do so on obtaining the consent of the trustees of the settlement or an order of the Court. Three-fourths of the net proceeds of the sale must be set aside as capital money, and the remaining fourth goes as rents and profits. The Settled Land Act, 1882. (45 & 46 Vict. c. 38 sec. 35.) 8. Q. Explain the doctrine of estoppel, and how it may arise. A. An estoppel is when a man is concluded by his own act or acceptance to say the truth. In other words, it is an admission, or something treated as an admission, of such a high and conclusive character that the party whom it affects is not permitted to answer or offer evidence against it. Estoppels are of three kinds (1) by matter of record; (2) by deed; and (3) in pais. (Notes to the Duchess of Kingston's case; Indermaur's Notes to the Leading Cases, Common Law.) 9. Q. Would a trustee who pays money under the direction of the Court be entitled to a release? Give the reasons for your answer. A. No, he is protected by the order itself, and is not entitled to any release by the parties. It is the duty, however, of the trustee to fully inform the Court of all the material facts within his knowledge; and, if he improperly withhold them, he can be made responsible for the result of his suppression of facts. (Lewin on Trusts, 6th edition, p. 315.) 10. Q. Where a testator subjects the residue of his personal estate, comprising leaseholds, to a series of limitations by way of trust, without giving any particular directions as to the mode of enjoyment thereof, what would be the duty of his executors with regard to such leaseholds? A. The leaseholds should be sold and the proceeds invested in some investment authorised by the trust instrument, and the income only paid to the tenant for life. (See Howe v. Earl of Dartmouth; Indermaur's Notes to the Leading Cases, Equity.) 11. Q. Is a donatio mortis causa subject to legacy duty, or the account duty in lieu of probate duty? Give the authority for your answer. A. Yes, it is subject to legacy duty, by sec. 4 of 8 & 9 Vict., c. 76. It only became liable to probate duty by the Customs and Inland Revenue Act, 1881 (44 Vict., c. 12; See sec. 38, sub-sec. 2. 12. Q. What precautions should be taken by a purchaser of an equitable interest in a chose in action? A. He should, before he pays his purchase-money, inquire of the trustee whether he has received notice of any assignment of, or charge upon the fund. If the trustee has received no notice, the purchaser may complete his purchase. After completion he should at once give notice to the trustee of his assignment. As between two bona fide purchasers claiming an equitable fund, the one who first gives notice is entitled to priority, (Snell, 6th ed., p. 90.) 13. Q. Define general average. A. General average arises where goods have been volun |